In these circumstances the employer has little option but to file an application for rescission. If the rescission application is successful the arbitration will be rescheduled for a new hearing.
However, some employers are not aware that a rescission application must be launched within 14 days of receiving the award. If the rescission application is filed outside of this time period, an employer is required to apply for condonation for the late filing of his application for rescission.
To compound the challenges faced by employers, the CCMA sometimes fails to bring the condonation application to the attention of the convening commissioner. When this happens, the commissioner will refuse rescission on the basis that there was no condonation application on file. The end result is that the employer receives a ruling stating that the rescission application was filed out of time and is therefore dismissed on the basis that it was not accompanied by an application for condonation.
As a result, the default arbitration award becomes valid and binding, and the employer is then left with two options: he can either apply to the CCMA for a rescission of the rescission ruling itself, or he can take the rescission ruling on review to the Labour Court.
The question of whether to review or rescind under these circumstances was considered by the Labour Appeal Court (LAC) in the decision of PT Operational Services vs Rawu obo Ngwetsana (unreported judgment JA7/11). The court held that if a CCMA commissioner fails to consider a condonation application, then he has not discharged his duty properly to consider the rescission application. The LAC is referring to the doctrine of functus officio, which states that, when a person performs an administrative function (such as a commissioner adjudicating matters in the CCMA), once a decision is made that person cannot revisit or change his decision.
However, the LAC held that "dismissing an application for rescission because it is not accompanied by an application for condonation, does not mean that the commissioner has considered the rescission application itself. A commissioner can only entertain the late application for rescission if it is accompanied by an application for condonation".
The LAC continued that "because there was no condonation application, the commissioner could not exercise his powers, duties or functions in terms of s144 of the LRA, because a condition precedent (that being condonation) had not been fulfilled. Therefore, the commissioner's ruling dismissing the application was just another way of saying I cannot consider the application at this stage because there is no application for condonation. Without such application I have no jurisdiction to exercise my powers in terms of s144 of the LRA."
The LAC explained that a commissioner will become functus officio when he has exercised his decision making powers and in doing so, makes a final decision that cannot be revoked by the decision maker himself.
Accordingly, when a commissioner fails to consider an application due to some requirement such as condonation being missing, the commissioner does not become functus officio by dismissing that application because he simply cannot consider the merits without deciding condonation first. In such circumstances an application for rescission would be the appropriate course of action.
Conversely, when the commissioner has considered the merits of a matter before him in full, and in doing so makes a final decision, the commissioner becomes functus officio and, thus, an application for review (and not rescission) would be the appropriate course of action.
Employers will need to assess, on the facts of each case, whether a CCMA commissioner has discharged his powers and made a final decision before deciding whether to apply for rescission, or to take the matter on review.
