When should an applicant apply for condonation?
Any applicant that is no longer employed by his or her employer, who has referred their matter to the CCMA or council late, must apply for condonation. This is done by completing the normal referral form (7.11) or a referral for arbitration form (7.13), together with a condonation application.
When will an applicant be late in referring his or her matter?
The CCMA prescribes the periods in which applicants should refer their matters. Should the applicant not comply with the prescribed periods below, he or she will have to apply for condonation;
For an unfair dismissal referral – the dismissed employee must refer his or her matter to the CCMA or council within 30 days of the date on which the final decision to dismiss took place.
For an unfair labour practice referral – the applicant 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. The applicant could also have become aware of the alleged unfair labour practice at a later stage only and the applicant must then refer his or her matter within 90 days of becoming aware of the alleged unfair labour practice.
For a discrimination referral – the applicant must refer his or her matter to the CCMA or council within 6 months of the act or omission that allegedly constituted unfair discrimination.
Furthermore, any applicant that wishes to refer his or her matter for Arbitration, after a certificate of non-resolution had been received at the conciliation hearing, must do so within 90 days of the certificate of non-resolution being issued.
What is the objective of the condonation application?
The applicant is required to state his or her:
(1) Degree of lateness of the referral;
(2) Reason for the lateness;
(3) Prospects of success on the merits of the matter and;
(4) Prejudice that either party will suffer.
How is the lateness of a referral calculated?
The lateness of the referral is calculated as follows: The first day is excluded and the last day is included. All days must be counted, including weekends and public holidays.
What can the employer do after a matter has been referred late to the CCMA or council?
It is advisable to approach legal assistance in this regard. The degree of lateness must be calculated to determine whether the applicant did in fact refer his or her matter late as a mistake could have occurred in the calculation made by the applicant. A determination should also be made regarding the prospects of success. Should reasonable grounds exist, you can continue to draft an opposing affidavit. This affidavit will address the following:
(1) Degree of lateness of the referral;
(2) Reason for the lateness;
(3) Prospects of success on the merits of the matter and
(4) Prejudice that either party will suffer.
After completion of the opposing affidavit, a copy thereof will be filed on the CCMA or council and on the applicant.
What is the objective of the opposing affidavit?
The objective of the opposing affidavit is to convince the Commissioner that the applicant has not shown good cause for his or her late referral and that the condonation application should thus not be granted.
What happens after the opposing affidavit has been filed on the applicant and on the CCMA or council?
The relevant case manager at the CCMA or council will provide the Commissioner that will be hearing the matter with the opposing affidavit. The matter will accordingly be set down for either in limine or in limine/conciliation and the relevant notice of set-down will be sent to the applicant as well as the respondent indicating the date, time, process and place where the specific matter will be heard. The Commissioner will accordingly make a ruling regarding the condonation application after considering the condonation application and the opposing affidavit.
Article by: Ewan O’Reilly
CEO Legal Assistant – Pretoria