Rule 9 of the CCMA Rules provides for how a party can seek condonation for documents that are delivered late and not in line with required time frames. The rule applies to any referral document or application delivered outside the Applicable time period prescribed by the Labour Relations Act (LRA) or the CCMA Rules.

The rules require that a party apply for condonation per Rule 31 when delivering the document late to the Commission. Rule 31 deals with the structure of the application. An application for condonation must set out the grounds for seeking condonation and must include details of the following:

  1. The degree of lateness;
  2. The reasons for the lateness;
  3. The referring parties’ prospects of succeeding with referral or application and obtaining the relief sought against the other party;
  4. Any prejudice to the other party;
  5. Any other relevant factor.

Condonation, in its ordinary meaning, is the forgiveness or overlooking of an offence. The “offence” in this context is lateness or failure to comply with the prescribed time limits. So, what are the time limits prescribed in the Act or the CCMA Rules? The LRA confers discretion on the CCMA to condone the following late referrals if good cause is shown.

When a certificate of outcome of conciliation has been issued, the applicant has ninety (90) days to refer the dispute for arbitration. Failure to do so will render the request for arbitration late. Should an ex-employee wish to refer a dispute for unfair dismissal, they have thirty (30) days to refer the matter after the date of dismissal (as defined in Section 190 of the LRA). The date of dismissal refers to the date the employer has made a final decision to dismiss or uphold the dismissal.

Should an employee attempt to claim an unfair labour practice, the LRA requires that the referral is made within a ninety (90) day period from when the act or omission of the employer took place or when the employee became aware of it, whichever is later.

Although not provided for in the LRA or Rules of the CCMA, discrimination disputes must be referred within six (6) months of the act or omission complained as prescribed in Section 10 of the Employment Equity Act.

The Rules permit the CCMA to condone any failure to comply with the time frames as long as good cause is shown.

So, what will the Commissioner consider when considering an application for condonation? We can first deal with the degree of lateness. This is a factual statement referring to the number of days the referral is outside the time limit compared with the length of time itself. The smaller the degree of lateness, the more likely one will receive condonation. An example is that three (3) or five (5) days outside a thirty (30) day time period may be considered to be a small degree of lateness.

An Applicant seeking condonation must also provide reasons for the lateness. It is required that the applicant sets out the facts in chronological order as to why they could not file the relevant document within the required time frame. This explanation should be supported by documents or affidavits of other persons who have first-hand knowledge of the facts. If the reason for lateness is unsuccessful, the enquiry usually ends there with no further consideration of the remaining allegations. The labour court does not have to look at prospects of success where the delay is unreasonably long, and there is no reasonable explanation, and the same applies to the CCMA.

The prospects of success refer to the strength of the applicant’s case or the likelihood that the applicant will ultimately be successful. The prospects of success are ascertained by applying the law to the facts of each case. If it can be shown that good prospects of success exist, it is more likely that condonation will be granted. One may have to go into some detail about the dispute to show they have reasonable prospects of success. It is said that this can be a disadvantage if the matter goes to arbitration at a later stage, as the applicant will be bound, to some extent, to the version of events listed here.

The applicant must also deal with “prejudice to the other party”. Prejudice means the harm or injury to a person that may result from the granting of condonation. The Commissioner must weigh up the prejudice or inconvenience to the other party should the condonation be granted against the prejudice to the applicant should the condonation application not be granted. Lastly, the applicant can provide any other relevant factors for the Commissioner to consider. This opens the door for additional factors or reasons the late referral should be condoned. The exercise of this discretion requires consideration to the extent of the delay; prospects of success, prejudice and the fairness of the matter may be relevant.

We are of the opinion that it is essential for our members to be fully informed of these time periods and considerations as discussed above. Should an employer receive a referral for the CCMA or Bargaining Council, they should first check whether the required time frames have been complied with. For any further assistance, please contact our offices.

Article by: Gordon Flanagan
Dispute Resolution Official – CEO Cape Town