Learn when late referrals can be allowed and what factors the CCMA considers when deciding condonation applications.
In South African labour law, disputes must usually be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) within strict time limits. However, situations sometimes arise where a party refers a dispute after the required deadline has passed. In such circumstances, the party may apply for condonation, which is a request for the CCMA to forgive the late referral and allow the dispute to proceed.
Understanding condonation at the CCMA is important because failing to apply for condonation may result in the dispute not being heard at all.
What Is Condonation?
Condonation is a legal application asking the CCMA to excuse a failure to comply with a prescribed time limit.
For example, employees who wish to challenge an unfair dismissal must normally refer the dispute to the CCMA within 30 days of the date of dismissal.
If the referral is late, the employee must apply for condonation explaining:
- Why the referral was late
- The length of the delay
- Why the case should still be heard
Without condonation, the CCMA may refuse to hear the dispute.
When Is Condonation Required?
Condonation may be required in several situations in labour disputes.
Common examples include:
- Referring an unfair dismissal dispute late
- Filing documents after a prescribed deadline
- Submitting an application or review outside the required time period
Condonation applications may arise not only at the CCMA but also before the Labour Court of South Africa.
Factors Considered in a Condonation Application
When deciding whether to grant condonation, commissioners consider several important factors.
These typically include:
- The Length of the DelayA short delay may be easier to justify, while a long delay may require stronger reasons.
- The Explanation for the DelayThe applicant must provide a reasonable and acceptable explanation for why the deadline was missed.
- Prospects of SuccessThe CCMA will consider whether the applicant has reasonable prospects of success in the underlying dispute.If the case appears weak, condonation may be refused.
- Prejudice to the Parties
The commissioner will also consider whether granting condonation would unfairly prejudice the other party.
How to Apply for Condonation at the CCMA
A condonation application usually involves submitting a written affidavit explaining:
- The reasons for the delay
- The length of the delay
- The prospects of success in the case
- Why it would be fair to allow the dispute to proceed
Supporting documents should be attached where possible.
A commissioner will then decide whether condonation should be granted or refused.
Why Condonation Applications Are Important
Condonation plays an important role in labour dispute resolution because it balances two competing considerations:
- The need for certainty and adherence to deadlines
- The need for fairness where delays occur for legitimate reasons
A properly prepared condonation application may allow a dispute to proceed even where time limits have been missed.
Frequently Asked Questions
What is condonation at the CCMA?
Condonation is an application asking the CCMA to allow a dispute to proceed even though it was referred late.
How late can a CCMA referral be?
There is no fixed limit. However, the longer the delay, the stronger the explanation and prospects of success must be for condonation to be granted.
What factors does the CCMA consider when deciding condonation?
Commissioners usually consider the length of the delay, the explanation for the delay, prospects of success, and potential prejudice to the parties.
Can condonation be refused?
Yes. If the explanation for the delay is inadequate or the case has poor prospects of success, the CCMA may refuse condonation.
Contact a Specialist Labour Lawyer
Condonation applications can significantly affect whether a labour dispute proceeds or not. Professional legal advice can help ensure that applications are properly prepared.
Article written by Craig Berkowitz
Craig Berkowitz is a specialist labour lawyer and Acting Judge in the Labour Court of South Africa with extensive experience in CCMA arbitrations, disciplinary hearings and Labour Court litigation.
Tel: 083 453 1822
Email: cblaw@netactive.co.za
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