adminLabour Matters Davis Ndumiso Sibanda
MANY employers and workers fail to attend hearings for various reasons and decisions are made without the party being heard. When this happens, many people struggle as to the way forward, especially the party that loses the cases because it was absent. There are a few options available to such parties. The starting point is to look at the award, determination or judgement evaluating prospects of success had one been heard. There is no wisdom in the decision where it is evident that even if one had been present the decision would not change.
In the matter Red Star Wholesalers versus Mutomba SC142/2004 an appeal was heard by the Labour Court in the absence of the employer representative.
The employer subsequently applied to the Labour Court for rescission of the decision. The Labour Court refused the application. When the matter went before the Supreme Court, it ruled that the Labour Court should have heard the application for rescission to establish whether good and sufficient grounds for rescission existed.
The lesson from this judgment is that, despite the fact that hearing notice documents almost always state that if a party does not attend a hearing the hearing may proceed to its disadvantage.
Failure to attend a hearing where there is a good and sufficient ground for such absence from the hearing, a party may apply for rescission of the decision made.
The challenge however lies in that the burden to prove there was good and sufficient reason for not attending lies with the applicant. There is a chance that the grounds for failure to attend might not go far enough to convince the court that there is a need to rescind the decision made and afford the party a window to be heard.
Further, the judgment is also a guide for arbitrators and internal disciplinary authorities who are from time to time faced by situations where one party does not attend a hearing and later on applies for rescission of the decision. There is no choice but to hear the application and make decisions as guided by the reasonableness of the reason given for failure to attend the hearing.
There is a need for disciplinary authorities to be careful when looking at evidence presented, the decision made must be on balance of probability and should not be driven by emotions or other hidden motives as the worker can approach higher courts to have the decision rescinded.
This can be at a huge cost to the employer for various reasons.
In conclusion, applications for rescission of decisions must at all times be granted and the decision to rescind or not rescind a decision be guided by facts that have been presented.
Davies Ndumiso Sibanda can be contacted on: e-mail:[email protected] or cell No: 0772 375 235
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