Condonation

Provided by the Commission for conciliation, mediation and Arbitration (CCMA)

 

An employee must refer the dispute to the CCMA within 30 days. If the employee fails to do this within that time period, he is required to make application to the Commission to condone the reason that he failed to refer his case timeously. This application should preferably be dealt with prior to the conciliation taking place as it is a jurisdictional fact that needs to be dealt with. However, the LRA states that the Commission can condone as late referral at any time, so if it has not been dealt with at the pre-conciliation phase, it should be dealt with as soon as everyone realises that it needs to be considered. You calculate the 30 days by excluding the first day and including the last day. All days are counted which means weekends and public holidays are included.

 

The Commissioner considers the following when deciding whether or not to grant condonation:

  • The degree of lateness of the referral
  • The reason for the lateness
  • The prospects of success on the merits
  • The prejudice to both parties which includes the importance of the matter to each party 
  • The applicant may make use of the CCMA's pro forma affidavits when applying for condonation.

 

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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