What to do if you are unavailable to attend an arbitration on a scheduled date?

Employers should not wait for an arbitration date to apply for postponement, says Ruaan Heunis.

By Ruaan Heunis, a dispute resolution official at the Consolidated Employers Organisation based in East London.

The CCMA is bound by its rules to notify parties in writing of an arbitration hearing at least 21 days prior to the scheduled date.

It could happen that an employer or key witnesses have prior engagements at the same date and time that the matter has been set down for arbitration.

Obviously, the employer’s case will be severely prejudiced if it is unable to attend or unable to present the evidence of key witnesses on the date of the hearing. What can be done when faced with a scenario like this?

CCMA Rule 23 states that:
(1) An arbitration may be postponed –
(a) by written agreement between the parties
(b) by application to the CCMA and a notice to the other parties

(2) The CCMA must postpone an arbitration without the parties appearing if –
(a) all the parties to the dispute agree in writing to the postponement; and
(b) the written agreement for the postponement is received by the CCMA at least seven days prior to the scheduled date of hearing

(3) If the conditions of sub-rule 2 are not met, any party may apply in terms of Rule 31 to postpone an arbitration by delivering an application to the other parties to the dispute and filing a copy with the CCMA before the scheduled date of arbitration.

(4) After considering the written application, the CCMA may –
(a) without convening a hearing, postpone the matter; or
(b) convene a hearing to determine whether to postpone a matter.

If an employer receives a date for arbitration and knows that it will not be able to continue with the arbitration on that date due to unavailability, it is extremely important that if the employer is a member of an employers organisation is informed immediately of the situation so that the necessary steps may be taken.

The employer can attempt to contact the applicant or their representative in order to determine whether the parties can enter into an agreement to postpone the arbitration to a later date.

If the parties agree to the postponement, the signed postponement agreement should be filed at the CCMA at least seven days before the date of arbitration. The CCMA then has no option but to postpone the arbitration.

If no agreement can be entered into, an application for postponement should be filed. The affidavit attached to the application will address the reasons as to why the postponement is being sought.

Travelling arrangements such as flight tickets or accommodation costs may be attached to the application to prove that the employer is not available on the arbitration date. It is important to keep in mind that such an application must be filed at the CCMA at least 14 days before the date of arbitration.

What is further important to note is that the CCMA does not frivolously grant postponements, and good, sound reasons should always be provided when applying for postponement. Postponement can also be applied for on an urgent basis if the above time frame has not been complied with.

It is imperative that the above process is followed. Employers are advised not to wait until the date of arbitration to apply for a postponement as the commissioner may rule that the arbitration should proceed on the same day.

If the 14 day period has lapsed, the applicant (in this case the employer) will need to apply for condonation of the late filing of the application for postponement. In some cases, where there is not enough time to draft a formal application, a representative will need to be in attendance to verbally apply for postponement at the CCMA sitting.