Some people might have heard Legal Practitioners talking about what is known as condonation, and could have been unfamiliar with what is being referred to. In order to understand what condonation means in legal discourse, it is helpful to start with consulting the meaning that the English language ascribes to it. The word ‘condone’ in English vocabulary denotes to ‘overlook, excuse, forgive or disregard.’ In legal discourse, the word condone still retains the same meaning and is used in processes where there has been non-compliance with rules or laws, such that the requester would be seeking to be allowed to persist with the matter despite such non-compliance. In this discussion we will shed some light on the requirements that the requester has to motivate in seeking condonation in labour matters at the CCMA.
Perhaps it is important to narrow the focus of this discussion as there are various grounds under which an applicant may seek condonation. For the purposes of this discussion therefore, we will look at where an applicant seeks condonation for the late referral of an unfair dismissal dispute to the CCMA. Employees who refer unfair dismissal disputes to the CCMA must ensure that they have exhausted all the internal appeal processes within the company, before referring the matter to the CCMA. Not only will this reduce workload on the CCMA, but if the processes of the company prescribe the exhaustion of internal appeal processes before any dispute may be taken to an external adjudicating forum, such processes ought to be adhered to.
Unfair dismissal disputes must be referred to the CCMA within thirty (30) days from the day of dismissal or the day when all internal appeal processes were exhausted. Rule 3 (1) (a) of the Rules for the Conduct of Proceedings before the Commission for Conciliation Mediation and Arbitration (CCMA Rules) provides that ‘a day’ means a calendar day (as opposed to a business day), and therefore public holidays and weekends are included. However, where the last day (30th day in this case) falls on a weekend, public holiday or a day between 16 December – 7 January, then such day will be excluded.
In the event therefore that 30 days lapse before the employee refers the dispute to the CCMA, an application for condonation ought to be undertaken in order to request the adjudicating forum to ‘excuse’ or ‘condone’ the late referral. Depending on the circumstances, the Respondent might elect to oppose the application, so that the dispute may be thrown out.
As per Rule 9 (3) of the CCMA Rules, an application for condonation must contain averments that include at least the following:
(a) the degree of lateness;
(b) the reasons for the lateness;
(c) the referring party’s prospects of succeeding with the referral and obtaining the relief sought against the other party;
(d) any prejudice to the other party; and
(e) any other relevant factors.
It is important to note that where a matter has little prospects of success, the CCMA might consider it to be a waste of time and resources to grant condonation so that the matter may persist. It would also be financially prejudicial to the Respondent who might as well ask for costs against the Applicant for persisting with the matter despite the glaring odds. The degree of lateness also weighs heavily on whether condonation may be granted or not in a particular matter, as it speaks to the Applicant’s desire to have the dispute resolved. An applicant who, after getting ‘unfairly dismissed,’ nevertheless does not take any steps to have the matter resolved for several months, only to refer the dispute after a very long time, may have difficulty in convincing the CCMA to grant condonation.
At Van Deventer and Van Deventer Incorporated we assist in labour litigation, civil and general litigation, criminal litigation, family law matters such as maintenance, divorces, protection orders, Rule 43 applications, Rule 58 applications and others. We also assist in personal injury, company law and deceased estates amidst an array of others.
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