A commissioner, based on of his/her own decision or on application by one of the parties, may rescind – that means set aside –  or vary – meaning correct a ruling or an award, – that he/she issued due to an obvious error, or where important information was left out of the award or ruling, or which contains a mistake common to the parties, or where the award or ruling was erroneously sought or made in the absence of any party affected by the award (or ruling).  

For example, it may happen that an applicant fails to attend an arbitration and the respondent party attends. A commissioner may assume that the applicant has abandoned the dispute and is no longer interested in the matter, and due to that absence, the commissioner may issue a ruling dismissing the referral. If the absence in such a case was that of the respondent party, the effect could be that a commissioner would proceed with the hearing in the absence of the respondent and issue a default award. It may later transpire that the actual reason that the applicant or respondent party failed to attend the arbitration hearing was due to him/her being sick and hospitalized. When these true facts come to the attention of the commissioner, he/she may on his/her own or on application by the applicant or the respondent, decide to set aside the decision taken earlier to dismiss the referral or issue the default award, and direct that the matter be scheduled for a rehearing.

If a rescission or variation of a ruling or award is brought on application by one of the parties, that has to be done within 14 days of that party becoming aware of the ruling or award or the mistake common to the parties, otherwise a condonation application may need to be filed for the late submission of this application. See the Referral Forms section on the format that should be followed for filing a rescission or condonation application.

In a case where one of the parties was absent from the hearing and he or she wishes to apply to rescind the award or ruling, the rescission application should show that the failure of the party to appear or oppose the relief contained in the award or ruling was not due to wilful default (not done on purpose) on their part. This the party must do by providing justifiable reasons for their absence. For example, it might even happen that the notice of the hearing was sent to a wrong address, hence the party was not aware and did not attend the hearing. In instances where the party can show that he or she was not notified of the hearing, the award or ruling will be rescinded.

Where, for example, the award or ruling was made in the absence of a party – in circumstances where there is proof that he or she was notified of the hearing – that party must explain his or her absence and show good cause – i.e. that it has a good case or defence to raise with regard to the main dispute which would entitle such party to the relief that it seeks – as motivation for the matter to be reheard.

If the application is for variation to correct a certain mistake common to the parties, that has to be shown in the application. For example, the mistake might be due to an incorrect citation of the name of one of the parties which could cause difficulties with the enforcement of that ruling or award, or it could be that the commissioner made a mistake when calculating the amount of compensation that is payable to an employee.

If the commissioner decides to rescind or to vary the original ruling or award, he/she will issue a rescission or variation ruling. That ruling is final and binding on the parties and any party not satisfied with it may challenge it on review through the Labour Court.