Bregman Moodley Attorneys Blog

Condonation for delays in referring matters to the CCMA

Time limits:

•Unfair dismissal disputes must be referred to conciliation within 30 days of the date of dismissal;

•An unfair labour practice dispute must be referred within 90 days of the unfair act or omission;

•A request for arbitration must be made within 90 days of the date on which the dispute remained unresolved after conciliation; and

·  An unfair discrimination dispute must be referred within 6 months of the discriminatory act.

If you are even 1 day late, you have to apply to the CCMA for ‘condonation’ on ‘good cause’ shown. You need to file an affidavit that is signed before a Commissioner of Oaths., explaining why you delayed submitting the dispute in time. The commissioner that hears the application for condonation must be satisfied that you have a good reason, otherwise he or she will not accept (condone) a late referral.  

Time frames in the LRA are calculated by using calendar days. This means that all days are counted including Saturdays and Sundays and public holidays. For example, the thirty-day period is counted by excluding the first day and including the last day.

However, in terms of the Interpretation of Statutes Act, if the last day falls on a Sunday or public holiday, this day is not counted. For example, if the last day falls on 16 June – a public holiday – the last day of the 30 days becomes 17 June.

The application must be done in an affidavit in which you must set out:

•The period of the delay;

•The reason for the delay;

•Your prospects (or chances) of succeeding in your claim of unfair dismissal;

•Any prejudice (negative impact) to the other side; and

•Any other relevant factors.

A CCMA commissioner will then decide whether or not “good cause” exists to grant condonation.

Sometimes, it is only at the conciliation stage where the parties or commissioner finds that the dispute was referred late. If this happens, the commissioner may give the parties’ time to prepare argument and thereafter immediately hear both parties before making a decision regarding condonation. Alternatively, the commissioner may direct the employee to submit a written condonation application. This may happen if the referral form states the wrong dismissal date. If this was done deliberately to avoid applying for condonation, it could count against the employee in the condonation process.

Sometimes, it is only discovered at arbitration that the original conciliation application was late. Also, there was no earlier condonation application and ruling that grants condonation. In such cases, the Labour Appeal Court has held that where the CCMA has issued a certificate of non-resolution at conciliation and such certificate not been reviewed and set aside, the CCMA can arbitrate the dispute.

This court decision prevents the raising of technical points to avoid arbitration where a party did not use an earlier opportunity to raise the defect.