For a party aggrieved by an arbitration award handed down by the CCMA, there is no appeal. An award is final and binding, unless there are grounds for rescission or review.
In most legal fora, a party can get out of a ruling made in their absence by way of a rescission application if they can show “good cause”. This generally means: 1. there is an acceptable explanation for their absence, 2. they are seeking rescission in good faith, and 3. they have a defence, with reasonable prospects of success.
This has not been the case in the CCMA, however, where the grounds for rescission have thus far been even narrower. As of 2015, the CCMA’s awards may now also be rescinded on “good cause shown”. This is good news for parties who, even through no fault of the CCMA or of either party, are absent from arbitration hearings but have a good defence to put forward. In the past they may have been stuck with the resulting award, but now that they can apply to have the award set aside and an arbitration hearing called afresh.
Review applications, in terms of which awards may be set aside as being broadly unreasonable, have been much abused. Reviewing parties have sometimes relied upon the process being drawn-out, complex and costly, to avoid complying with an award even when the basis for review is sketchy at best. The 2015 amendments seek to put an end to such abuse. A reviewing party is now required to apply for a hearing date within six months of commencing review proceedings. If there are good reasons why this cannot be done, they must apply to the court for condonation. Despite applying for review of an award, the award must still be implemented pending the determination of the review, unless the reviewing party supplies security to the court, equal to the compensation awarded or equal to 24 months’ remuneration in the case of an award of reinstatement or re-employment.
This will be a bitter pill to employers. Where the employer cannot afford to pay the necessary security, they are stuck with taking a reinstated employee back into service until the review application has been decided. Where compensation has been awarded, the employee can go ahead with execution proceedings against the employer’s assets pending the outcome of the review, in the event that no security has been paid.
Review applications interrupt prescription of the award, which extends the period in which the successful party may enforce the arbitration award once the review application has been disposed of.
