You have terminated an employment relationship with an employee, and months have gone past. The next thing, you receive a CCMA or Bargaining Council referral. How can this be possible? Surely a significant amount of time has lapsed, limiting a former employee’s right to refer a dispute. The CCMA, in terms of Rule 9, makes provision for condonation applications. A condonation application is made through a written affidavit requesting a ‘pardon’ from the commission for the lateness in referring a matter. Section 191 of the LRA determines the time frames within which employees must refer disputes to the CCMA.
LRA TIME FRAMES: EEA TIME FRAMES:
Furthermore, the condonation application requests that the Applicant still be given the opportunity for their case to proceed and be heard. There are a few reasons why condonation applications are drafted. One of them is when a matter is referred outside the time frame set in the Labour Relations Act or when legal documents are filed outside the prescribed time frames required to respond. This article will focus on Applicant’s who have referred their cases to the CCMA or Bargaining Council outside of the prescribed periods, and therefore, condonation must be applied for.
Rule 31 of the CCMA rules state that a condonation application must address the following four aspects in order for a condonation application to be considered:
- The degree of the lateness of the referral.
- The reason for the lateness of the referral.
- The prospects of success.
- Any prejudice that may be suffered.
It is important to note that the clock starts ticking once a condonation application is received. It is imperative to forward the condonation application to your legal representative to attend to opposing the application as soon as it is received. In terms of the CCMA Rule 31(5)(a), an opponent only has five calendar days to oppose the condonation application in writing from the day on which the application was received.
The onus falls on the Applicant to explain why the matter was referred outside of the stipulated time frames. Should a condonation application be unopposed, the Commissioner will still evaluate the facts of the case. However, no evidence led by the Applicant will be disputed if an application remains unopposed. As a result, there is a greater chance that the condonation application will be granted. A condonation application must be signed, initialled and stamped by both a Commissioner of Oaths and the individual referring the matter before it is served and filed on the Respondent and CCMA, respectively.
It is clear from the above that time frames are crucial in handling condonation applications. The later an opposing affidavit is drafted and filed, the more likely it will be granted by the Commissioner. Be vigilant with time and remember to send all correspondence received from the CCMA or Bargaining Council to CEO.
Article by: Ivan Mashwengane
Legal Assistant – Pretoria