In unfair dismissal disputes the terms ‘rescission’ and ‘review’ applications are often heard or referred to. What are they?
A rescission application is made to the Commission for Conciliation, Mediation and Arbitration (CCMA) (or a Bargaining Council) to rescind, or in other words, cancel or set aside an arbitration award made by a Commissioner (Arbitrator). The Labour Relations Act (LRA) sets out certain grounds on which a party, either the employer or employee party, to an award may apply for rescission of that award, for example, where an award was issued after the employer did not attend the arbitration and the Commissioner only heard the evidence of the employee and consequently found in favour of the employee, the employer can apply to have the award set aside but must provide good reasons for not coming to the arbitration hearing.
The CCMA appoints a Commissioner to consider the rescission application, which will consist of affidavits and other supporting documents from both parties and/or will hear oral evidence from both parties before making a written rescission ruling, which will either rescind (set aside) the original award or confirm the original award. If the award is rescinded, the matter will have to be arbitrated all over again.
A review application is quite different because it is not brought at the CCMA but is brought before the Labour Court by either party to an arbitration award who wishes the Labour Court to overturn the award. Again the LRA sets out the grounds on which a party may bring a review application and the reasons generally refer to the misconduct of the Arbitrator (Commissioner), e.g. he or she did not apply the law properly, took a bribe, made an award beyond the powers of an Arbitrator, and so on.
If the Court sets aside the award on review – the dispute is usually sent back to the CCMA for a different Arbitrator (Commissioner) to rehear the matter a second time but the Labour Court may, and sometimes does, simply make a different arbitration outcome for the parties. Alternatively, the Court will confirm the award, which then continues to remain final and binding. In either case the decision of the Court may be taken on appeal to the Labour Appeal Court.