Chances for success regarding a condonation to the CCMA: The case of Ahmed v Commission for Conciliation, Mediation and Arbitration and Others
The rules of the Commission for Conciliation, Mediation and Arbitration set time limits for the referral of disputes. When an application is referred to the CCMA too late, an application for condonation must be submitted.
The Commissioner who considers the application, takes the following four factors into account when a decision must be taken whether the application will be considered or not:
- How far the application is outside the set time limit.
- The reason why the application is submitted after the set time limit.
- The applicant’s chances for success.
- The disadvantage for the applicant if the application was not granted and the disadvantage for the respondent if the application was granted.
In the case of Ahmed v Commission for Conciliation, Mediation and Arbitration and Others
(C 1026/15), the Labour Court was approached for a revision of the decision by the Commissioner to not grant a condonation application.
The applicant had been working at Woolworths since 2010. She was suspended on 26 May 2015 and a disciplinary hearing for misdemeanour by the applicant took place on 25 June 2015.
After the disciplinary hearing, but before the chairperson could recommend a sanction, the applicant was given a choice of early retirement rather than a dismissal. The applicant chose early retirement on 24 August 2015 and her last workday was on 31 August 2015.
On 1 October 2015, the applicant decided to refer the case to the CCMA and alleged that an unfair dismissal, unfair labour practice, an unfair suspension, and a dispute exist regarding a severance package.
During the conciliation process, the Commissioner observed that the referral was one day too late. The Commissioner heard the contents of the application, as well as the arguments of both parties for and against the condonation.
Despite several arguments by the applicant that the Commissioner did not handle the situation correctly, the Court ruled that the Commissioner did indeed act correctly and within his power when the condonation application was heard.
The Commissioner found that the applicant’s application had not been very late, but that the reason why the application was submitted after the expiry date was not acceptable and even if valid reasons existed for the late referral, the merit of the applicant’s case was extremely weak because she chose early retirement voluntarily. The Commissioner was also of the opinion that there would an unfair disadvantage for the respondent if the application for condonation was granted.
The Labour Court ruled that the application for revision did not have any merit because the decision made by the Commissioner had been reasonable. The application to set aside the Commissioner’s decision regarding the condonation application was rejected.
This case reiterates that referrals to the CCMA must be brought within the prescribed time limit as far as possible. If a condonation application is submitted, the CCMA will not merely grant the application unless there are well-founded reasons for the late referral and the case which is referred has merit.
Author: Barend Smit