What is a default award?
Posted on 01. Jan, 2010 by admin in Business-Industrial Relations
By Ivan Israelstam Chief Executive of Labour Law Management Consulting
An arbitration hearing is very similar a court case. At such hearings employers are charged with unfair practice. However, many employers lose these cases because they ignore the document instructing them to appear. The CCMA notice summoning the employer to the hearing is a relatively harmless looking document. This is because it:
- Is not served by the Sheriff of the Court
- Most often arrives on the employer’s fax machine like any ordinary correspondence (and then often gets filed!!)
- Is not bright pink like a traffic ticket or summons
- Is not written in bold capital letters
- Is not headed “SUMMONS”
- Does not make it clear that an arbitration is a type of court case where a decision seriously damaging to the employer could be made
- Does not emphasise that you are likely to lose the case if you fail to appear. That is, while the notice states that the proceedings will continue if the employer is absent, this comment is typed in small print and does not make it clear that a default judgement is likely to be made against you.
A default award is a legally binding decision that the CCMA arbitrator may make in the absence of the employer. That is, section 138(5)(b) provides that, if the employer does not attend the arbitration hearing the CCMA can continue with the hearing and make an award based purely on what the employee tells him/her.
A ‘default award’ means that:
- any evidence that is missing cannot be taken into account in the arbitrator’s award (judgement)
- if the employer is not present then all of his/her evidence will be missing
- the arbitrator is not required to postpone the proceedings in order to give the employer a chance to bring its evidence
- the only evidence that the arbitrator can take into account is that of the employee who may well lie, exaggerate or leave out crucial facts in order to ensure that the award is in his/her favour.
For example, the employee’s evidence might consist merely of a short statement explaining why the dismissal was without good reason. For instance the employee might say that he/she was not even at work on the day the money was stolen. Or the employee might say that he/she was fired without a disciplinary hearing. The arbitrator could accept this as proof of an unfair dismissal. This is because, if the employer is absent, he/she cannot dispute the employee’s testimony and the arbitrator is entitled to accept undisputed testimony as fact.
For example, in the case of GIWUSA obo Nogaga vs Cetronics Security Guards (2004, 1 BALR 30 CCMA) a security guard told the CCMA that he had been tricked into signing a resignation. Even though the arbitrator found the employee’s evidence to be vague and inconsistent the arbitrator still:
- Held that the employer’s conduct constituted dismissal
- Found that the dismissal was substantively and procedurally unfair
- Reinstated the employee with retrospective effect to the date of the dismissal.
The reason for this decision despite the employee’s poor evidence was that the employer was not at the hearing to deny the allegations!
The reason for such default judgements include the fact that employers often do not have the legal knowledge, experience and skills to understand the law and its hidden and immensely dangerous provisions. In such circumstances the use of expert legal advice becomes of paramount importance
To attend our 12 March 2010 seminar on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni at ronni@labourlawadvice.co.za or on 0845217492 or (011) 782-3066.