If you have a labour dispute it is very important that you take steps immediately to have the matter resolved before any of the prescribed time periods for referral of such disputes lapse. The statutory time periods for referring disputes are as follows-
Unfair dismissal – a dismissed employee must refer a dismissal dispute to the CCMA or bargaining council within 30 days of the date of dismissal. If after a dismissal there was an appeal, the 30-day period is calculated from the date the appeal decision on that dismissal was taken by the employer or its delegated person.
Unfair labour practices – an employee must refer the matter to the CCMA or bargaining council within 90 days of the date of the unfair labour practice conduct or omission complained of. If an employee only became aware of the occurrence at a later date, the matter must be referred within 90 days of the employee becoming aware of such occurrence.
Discrimination – an employee must refer the matter to the CCMA within six months of the act or omission that constituted the discrimination complained of.
The CCMA will not deal with the merits of a dispute that has been referred outside of the time limits until such time that the reason for such lateness has been considered and it has been excused / condoned.
If the prescribed referral time periods have lapsed, the referring party must apply for condonation of the late referral. He / she is required to make application to the CCMA to condone the fact that he/she failed to refer the dispute timeously. Condonation, in this sense, is the action of excusing a party’s failure to comply with the timeframes prescribed for referral of a dispute to the CCMA.
In calculating the referral time frames you should count the days from the date the dispute arose by excluding the first day and including the last day on which you refer the dispute. The last day is only excluded if it falls on a Sunday or a public holiday.
In deciding whether to grant condonation or not, a commissioner will determine whether good cause has been shown for the late referral in the explanation given by the referring party by weighing the following considerations:
- the degree / extent of the lateness of the referral;
- the reason for the lateness;
- the prospects of success on the merits;
- the prejudice to the other party, and
- any other relevant factors.
An applicant may make use of the CCMA's pro-forma condonation affidavits when filing this application as these provide guidance to parties on what information should be included in an application. In addition, condonation may be applied for using the CCMA’s e-referral platform via #CCMAConnect.
You may approach the CCMA for assistance with filing a condonation application.