When must a case be referred to the CCMA and what happens when I miss the due date?
Section 191 of the Labour Relations Law regulates the period in which a specific dispute must be referred. According to section 191(1)(b)(i), a dispute regarding an unfair dismissal must be referred within 30 days from the date of the dismissal. A dispute regarding unfair labour practice must be referred within 90 days from the date of the unfair practice, or within 90 days since the employee became aware of the unfair practice. Should the dispute be referred outside the compulsory due dates, it will be regarded as a late referral and the employee will have to apply for condonation.
Rule 31 of the Commission for Conciliation, Mediation and Arbitration (CCMA) explains how an application for condonation should be submitted. Among others, the application must be accompanied with an affidavit describing the case and must be served no less than 14 days before the conciliation and/or arbitration date on the parties.
According to rule 9 of the CCMA, a condonation application must include the following four aspects to be successful:
- The number of calendar days after the due date.
- The reason why the application is late.
- The chances of success for the party who referred the case.
- Any bias the parties will, or will not experience if the condonation is granted.
- Any relevant factors the parties deem to be important for the Commissioner’s consideration.
The Commissioner will then hear the condonation application and will either approve of reject it. Should the application be approved, the case will continue with conciliation and/or arbitration. Should the application be rejected, the dispute will no longer be heard.
It is important to notify Solidarity immediately of an unfair dismissal or unfair labour practice so that the case can be referred within the set time framework.