If you have a labour problem it is very important that you take steps immediately. The statutory time periods for referring disputes are as follows-
Unfair dismissal - the dismissed employee must refer the dispute to the CCMA or council within 30 days of the date of the dismissal. If the employer makes a final decision to dismiss, say for example, the outcome of an appeal hearing, the matter must be referred within 30 days of that final decision to dismiss.
Unfair labour practices- the employee must refer the matter to the CCMA or council within 90 days of the date of the act or omission, which allegedly constitutes an unfair labour practice. 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 - the employee must refer the matter to the CCMA or council within six months of the act or ommission that constituted unfair discrimination.
If the above time periods have lapsed, the referring party must apply for condonation- he/ she is required to make application to the CCMA to condone the reason that he/she failed to refer the case timeously. This application should preferably be dealt with prior to the conciliation taking place as it is a jurisdictional fact that needs to be dealt with. However, the LRA states that the Commission can condone a late referral at any time. Calculate the days by excluding the first day and including the last day, all days are counted, including weekends and public holidays. weekends and public holidays are included.
The Commissioner considers the following when deciding whether or not to grant condonation:
- the degree of lateness of the referral;
- the reason for the lateness;
- the prospects of success on the merits; and
- the prejudice to both parties which includes the importance of the matter to each party.
The applicant may make use of the CCMA's pro forma affidavits when applying for condonation.