The ins and outs of condonation applications for late referrals of labour disputes
09 Nov 2020
It’s no secret that regrettably thousands, if not more employees have lost their jobs during the nationwide lockdown as a result of COVID-19 in 2020, either by being retrenched or dismissed, often unfairly and without proper procedure. Many of these employees have not referred their alleged unfair dismissal disputes due to the fact that the relevant employment legislation requires that a dispute must be referred to the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as the “CCMA”) within 30 days of the dismissal or retrenchment. If an individual has not referred a dispute within the aforementioned time frame, the CCMA will require that a condonation application be submitted for the late referral.
What is a condonation application?
The CCMA states that if the above time period has lapsed, the referring party (the employee who was unfairly dismissed or retrenched) must apply for condonation and he or she is required to make application to the CCMA to condone the reason that he or she failed to refer the dispute timeously within the 30 day period. The CCMA, in the condonation application, requires that the referring party calculate the days the referral is late by excluding the first day (the day on which the employee was unfairly dismissed or retrenched) and include the last day (the day on which the 7.11 referral form is served on the former employer and filed with the CCMA). All days are counted in respect of the calculation, including weekends and public holidays.
The Commissioner appointed by the CCMA to make a ruling on whether condonation should be granted would take the following factors into consideration 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.
There is no guarantee that a referring party will have their condonation application granted. Commissioners have refused to grant condonation applications that were a mere few days late while on the other hand have granted condonation applications that were numerous months late. Accordingly, what is extremely important to address in the condonation application is the reason for the lateness which should be as descriptive as reasonably possible inclusive of dates and preferably in a clearly structured timeline in order for the Commissioner to make an informed decision. Another extremely important aspect to address are the prospects of success of your dispute. Simply put, you would need to convince the Commissioner in your condonation application that should condonation be granted, you would have reasonable prospects of success in succeeding in your claim that you were unfairly dismissed or retrenched.
Where do I get condonation application?
The application can be downloaded from the CCMA website, however most frequently the referring party does not complete the form correctly, resulting in a materially defective form which may be vehemently attacked by the former employer and its legal representatives resulting in condonation not being granted and the Commissioner ruling in favour of the former employer. Therefore, it is strongly advised that the referring party obtain advice and assistance in completing the condonation application and most importantly assistance with drafting in respect of the above-mentioned factors, particularly in formulating a structured time frame of reasons for the late referral and addressing prospects of success and prejudice to the referring party if condonation is not granted.
Condonation applications do not only apply to unfair dismissals and unfair retrenchments. If you have a labour related dispute of another kind, it is still imperative that you take steps immediately if you want to refer the dispute to the CCMA. The statutory time periods for referring disputes which are not unfair dismissals or retrenchments are as follows:
Unfair labour practices such as being issued with an unfair written warning or unfair disciplinary sanction, or if you have been unfairly demoted or unfairly not promoted – the employee must refer the matter to the CCMA or relevant Bargaining 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.
The unfair labour practices canvassed hereinabove are not exhaustive. If you feel you may have been the victim of an unfair labour practice it is strongly advised that you obtain informed advice from experienced and expert labour or employment specialist attorneys in order to make an informed decision on whether or not to refer an unfair labour practice against your employer.
In terms of acts of discrimination, the employee must refer the matter to the CCMA or relevant Bargaining Council within six months of the act or ommission that constituted unfair discrimination.
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