What is a condonation application and when is it necessary to bring such an application in dismissal cases?

The CCMA rules provide for a 30-day period from date of dismissal / termination to refer a matter. In some instances, it may happen that the referring party / former employee, known as the Applicant, fails to meet this 30-day period allowed for referral. This is when an application for condonation must be brought if the Applicant insists that the CCMA accept his / her case.

This application for condonation is in the form of a Notice of Motion together with a Founding Affidavit made by the Applicant. This application serves the purpose of furnishing the CCMA with sufficient reasons for the Applicant’s lateness, to allow a Commissioner to make a ruling in this regard.

The Applicant’s Affidavit will include information regarding the following:

  1. The degree of lateness: This is usually measured in “days late”. The lateness is calculated after the 30-day deadline has expired.
  2. The reason for lateness: Here the Applicant will include all the reasons / excuses as to why he /she was unable to refer their matter to the CCMA within the 30-day period. The reasons must be acceptable and reasonable. Any proof regarding such reason should also be attached.
  3. The prospects of success: The Applicant will in this section explain why his / her dismissal was allegedly unfair and why they feel they would prove to be successful in a CCMA hearing.
  4. Prejudice: The Applicant will state why he / she will be more prejudiced than the Respondent / employer if the CCMA were to refuse his / her late referral based on the lateness.

This Affidavit will then be signed by the Applicant as well as a Commissioner of Oaths. It will then be served on the Respondent and proof of such service together with the Affidavit must then also be served on the CCMA.

On receipt of this, the CCMA may then schedule the case for a process called In Limine / Conciliation.

A date and time via a notice of set down will be served on the parties. During this hearing the Commissioner will take the above-mentioned application into consideration and allow for any oral additions thereto which will be placed on record.

The Respondent also has the opportunity to oppose this application and can do so in the same Notice and Affidavit format as mentioned above. Here the Respondent will challenge all submissions made by the Applicant. It is important that the Affidavit of the Respondent in opposition hereto is served on the Applicant and the CCMA within 5 days after the Respondent receives the Applicant’s application.

The CCMA may also, due to diary requirements, make a ruling on the documentation submitted and thus not place a date for the hearing as previously mentioned. If this happens and there has been no opposition filed by the Respondent, the decision will be based on the Applicant’s submissions alone.

The Commissioner may rule in one of two ways. That condonation may be granted and the Applicant’s late referral may be accepted. The matter will then proceed through the channels of the CCMA.

Or the Commissioner may rule that the condonation is not granted and the Applicant’s case thus dismissed.

It is therefore important to act on receipt of these applications as a case could be “thrown out” before it is ever set down.

The Respondent however does not need to wait for the date and time via a notice of set down from the CCMA in this regard but can act immediately upon receipt of the Applicant’s application. If the matter is then set down, an Affidavit will thus already be on the CCMA case file.

Condonation applications are also used in other instances and is required where any application made to the CCMA is done outside the prescribed timeframes as contained in the rules.

Article by: Carlene van der Lith

CEO Dispute Resolution Official – Kimberley