A dismissed employee must refer a dispute to the CCMA within 30 days of the date of dismissal. If this time period has lapsed, the employee must apply for condonation of the late referral in terms of Rule 9 of the CCMA. This means that the employee asks the CCMA to still accept the referral, despite it being referred outside of the normal 30-day time period.
If condonation is granted, the dispute will continue to be heard before the CCMA. The employee may refer the matter for arbitration, and the CCMA will schedule a date for arbitration. If condonation is refused, the CCMA will close its file, bringing the matter to an end.
An application for condonation must be served on the employer party who has 5 days within which it may oppose the application by way of filing an opposing affidavit. By not opposing the application for condonation, the employee’s version will be uncontested, leading to a high possibility of condonation being granted.
By opposing the application for condonation, the employer party will attempt to convince the Commissioner that the employee has failed to show good cause for his/her late referral.
The Commissioner will consider the following when deciding whether to grant condonation or not:
- 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
It is important to address each of the above aspects in detail and refer to supporting case law when opposing an application for condonation. In Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA), it was held that condonation is not a mere formality and is not to be had merely for the asking.
A well-drafted opposing affidavit could therefore stop a CCMA dispute in its tracks and lead to a speedy conclusion to a dispute.
Article by: Ruaan Heunis
Dispute Resolution Official – East London