SOS Protec Sure v PSTWU obo Dancan Mabea and 160 Others

The Commission for Conciliation Mediation and Arbitration (CCMA) issued a default award on 8 April 2019 after finding that the applicant employer (SOS Protec Sure) had been properly served notice of the arbitration hearing. The applicant only became aware of the default award on 6 September 2019 when a sheriff arrived to enforce it. The applicant then launched a rescission application, which was dismissed by the Commissioner. The applicant contended that the notice of set-down was sent to incorrect email addresses: [email protected] (which does not exist) instead of [email protected], and [email protected] instead of [email protected]. The correct email addresses had been reflected on earlier correspondence sent to the union. The Commissioner in the rescission ruling accepted the union's version as to the correctness of the email addresses. The union filed a notice to oppose the review but failed to file an answering affidavit, and its attorney subsequently withdrew. The matter remained opposed due to the notice of opposition.

• Whether the Commissioner erred in refusing to rescind the default award
• Whether the applicant had to demonstrate good cause for rescission where the award was made erroneously in the absence of the party
• Whether incorrect notification constitutes an error justifying rescission
• Whether costs should be awarded against the union despite the general rule that costs do not follow the result in the Labour Court

The rescission ruling dated 24 October 2019 under case number GAJB28832-18 was reviewed and set aside. The first respondent (union) was ordered to pay the applicant's costs. The ruling was substituted with an order granting rescission.

Where notification of CCMA arbitration proceedings is sent to incorrect email addresses and never comes to the knowledge of a party, the default award is made erroneously in the absence of that party. In such circumstances, the party seeking rescission need not demonstrate good cause - failure to correctly notify a party constitutes an error that justifies rescission. A Commissioner errs in refusing rescission where there is clear evidence that notification was sent to incorrect contact details and the affected party provided a reasonable explanation for non-attendance.

The Court commented that the conduct of the union warranted a costs order despite the general rule that costs do not follow the result in the Labour Court. The Court observed that the union was well aware of the correct email addresses but elected to use incorrect email addresses to obtain a default award, and then opposed the application without filing an answering affidavit or withdrawing its opposition. This conduct was characterized as improper and justifying departure from the normal costs rule in labour matters. The Court also noted it was not necessary to consider the second ground of review given its conclusion on the notification issue.

This case reinforces important procedural safeguards in CCMA proceedings, particularly the requirement for proper notification before a default award can be issued. It confirms the distinction between cases of wilful default and cases where an award is erroneously made in the absence of a party - in the latter case, good cause need not be shown for rescission. The case also demonstrates that costs may be awarded in the Labour Court in exceptional circumstances, particularly where a party's conduct has been improper or where opposition to proceedings is unreasonable. The judgment serves as a reminder that obtaining default awards based on improper notification is impermissible and may result in adverse costs consequences.