In terms of the CCMA rules, an employee is required to refer an unfair dismissal dispute to the CCMA within 30 days from the date of dismissal or termination. The purpose of this rule is aligned with a core principle of the CCMA, the efficient and speedy resolution of disputes.
It may however happen that, the Applicant, being the former employee or referring party, fails to meet these 30 days. This is when an Application for Condonation must be brought by the Applicant if they want the CCMA to entertain their case.
The Application for Condonation is submitted in the form of a Notice of Motion together with a Founding Affidavit made by the Applicant, templates are easily obtained from the CCMA or available on the CCMA website. The purpose of the application is to provide the CCMA with sufficient reasons for the Applicant’s lateness. The Commissioner is then tasked to make a ruling as to either condone the lateness and grant condonation or not grant the application for condonation.
Requirements and Guidelines for Late Referral to the CCMA
The Founding Affidavit submitted by the Applicant is required to include the following information:
- The degree of lateness: This is usually measured in “days late” and is calculated after the 30-day deadline has expired.
- The reason for lateness: Here the Applicant will include all the reasons as to why they were unable to refer the matter to the CCMA timeously. The reasons must be acceptable and reasonable and not mere excuses. Any proof regarding such reasons, for instance a medical certificate, should also be attached to the application.
- The prospects of success: The Applicant is required to provide reasons as to why they feel their dismissal was unfair and why they would be successful at the CCMA.
- Prejudice: The Applicant will state why they would be more prejudiced (“harmed”) than the Respondent (employer) if the CCMA were to refuse their late referral.
For the Condonation Application to meet the requirements of the CCMA rules, the Affidavit must be signed by the Applicant in front of a Commissioner of Oaths. It will then be served on the Respondent and proof of service together with the Affidavit must then be served on the CCMA.
Procedural Steps and Considerations in Condonation Applications at the CCMA
The CCMA may then schedule the case for a process called an “In Limine” (a hearing that is scheduled to take place before the merits of the main issue in dispute can be heard), this could be heard on the “papers” or in person, the parties will be notified thereof by the CCMA in the form of a notice of set down, where the time, date and venue are provided to the parties. Should the matter be scheduled in person, the Commissioner will consider the above-mentioned application and, if applicable, allow for any oral additions that the parties wish to be placed on record.
The Respondent also has the opportunity to oppose the Application for Condonation, in the same Notice and Affidavit format mentioned above. This is called an Opposing Condonation Application, where the Respondent challenges all submissions made by the Applicant. The Affidavit of the Respondent must be served on the Applicant and the CCMA within 5 days from the Respondent receiving the Applicant’s Application. If the Respondent fails to serve their Opposing Condonation within 5 days, they can provide reasons to the CCMA for consideration when determining if the late filing of the Opposing Condonation should be condoned.
Consequences of Failing to Oppose Condonation Applications at the CCMA
Should the CCMA rule that the matter is to be heard on the papers and not in person, and the Respondent fails to, or opts not to file Opposing Condonation papers, the decision by the Commissioner will be based on the Applicant’s submissions alone.
The Commissioner will rule in one of two ways, either the condonation will be granted, and the late referral will be accepted, in this instance the matter will proceed, and the dismissal dispute will be entertained by the CCMA, or the Commissioner will rule that the Condonation is not granted and the Applicant’s case is then dismissed.
It is therefore important for an employer to act immediately when receiving an Application for Condonation, this will allow the CCMA to in conjunction with the Applicant’s submissions, consider the employer’s arguments as to why a matter should not be condoned, effectively having the dispute thrown out at the gate and potentially saving time and resources going forth.
Should you receive a document as described above from a past employee, please forward same to our litigation department, at litigation@invictusgroup.co.za without delay to attend to the above.
