Condonation may restore CCMA case

MOST working people are aware that in the event of an employmen- related dispute, various forums such as the CCMA, bargaining councils and the labour court can be approached for assistance.

More often than not these forums must be approached within a specified time, otherwise the right to pursue the cause of complaint lapses.

In the event that employees are out of time to refer their dispute to the relevant forum they always have the option of applying for condonation for the late referral of a dispute. Condonation means that the delay in referring the dispute is excused or forgiven and the dispute is processed as if it were received in time.

Condonation is never automatically granted but is within the discretion of the forum or person adjudicating the dispute, that the commissioner or judge.

In deciding whether to grant condonation the adjudicator will take the following into account: the degree of lateness, the reasons and explanation for the lateness, the prospects of success and any likely prejudice to the parties in the dispute.

The degree of lateness relates to the amount of time by which the referral is late. It is important to show that the length of the delay is not excessive.

Whether or not the delay is excessive will be determined by the facts of each case, as there is no fixed or specified period or set threshold by which to judge whether the delay is excessive.

When applying for condonation it is imperative to give valid reasons and a believable or convincing explanation for the lateness of the referral. The explanation must be good enough to offset the delay in referring the dispute. In Moila v Shai NO & Others (2007) 28 ILJ 1028 (LAC) the Labour Appeal Court has held that there is no need to even consider the prospects of success, and condonation may be refused in the event that the degree of lateness is excessive and no convincing or believable explanation is given to explain the delay.

The requirement that there be good prospects of success means that the applicant must show that, if condonation is granted, there is a good chance of being successful on the merits of the matter. In the event that there are no prospects of success in the matter or the prospects are poor, it is unlikely that condonation will be granted.

The applicant in a condonation application is also required to show that the other party to the dispute will not be prejudiced by the late referral. The applicant should also show that, should condonation not be granted, he will suffer prejudice.

The person who is considering the application is required to balance the competing legitimate interest of both parties in determining the issue of prejudice and will weigh up the one party's right to have the matter finalised and the other's right to have their complaint resolved.

Therefore in light of the above, in order to successfully apply for condonation an applicant must deal with the degree of lateness, the reasons and explanation for the delay, the prospects of success and the potential prejudice to the parties.

The adjudicator is then required to exercise his or her discretion weighing up all the necessary factors to decide whether condonation should or should not be granted.

l Modise is deputy chairperson of Eversheds and Ewang a candidate attorney at Eversheds