I received an e-mail from a factory worker who was dismissed in August this year after working for the company for more than nine years.
He was a group manager and allegedly assaulted one of his subordinates by slapping him through the face.
He filed an appeal the day after his dismissal and the appeal was heard at the end of August. On appeal, the sanction was upheld.
During the time of his employ, he says, he once had to separate two co-workers who were beating each other. In that case, he says, the employee assaulting the co-worker was not dismissed and therefore he feels it is unfair that he should be dismissed on the grounds of allegedly slapping a co-worker.
Our reader referred the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) in the middle of October, but has since received a letter from them informing him that his referral was made outside the 30-day statutory period as prescribed by the Labour Relations Act (LRA).
He would like to know whether the 30-day statutory period is counted from the appeal outcome date or from the actual date of dismissal.
The date on which the dispute arose is extremely important, as a dispute has to be referred to the CCMA within 30 days of the date of dismissal or within 30 days of the employer making a final decision to dismiss or uphold the dismissal.
As the reader’s referral was made outside the 30-day period of the employer making a final decision to uphold the dismissal, a condonation application now needs to be brought to the CCMA.
In basic terms a condonation is an application that is brought to the CCMA in order for them to condone (excuse) the late referral of a dispute. If successful, the CCMA will have jurisdiction to hear the dispute.
The condonation application consists of the notice of motion with a founding affidavit of the person applying for condonation.
This affidavit needs to contain the names, description and addresses of the parties, a statement of the material facts and a statement of legal issues that arise from the material facts.
The affidavit must also set out the grounds for seeking condonation and must include details of the following: the degree of lateness; the reasons for the lateness; the referring parties’ prospects of succeeding with the referral and obtaining the relief sought against the other party; any prejudice to the other party and any other relevant factors.
A copy of the application has to be served on both the employer and the CCMA. This must be done by fax, registered post or hand. Proof of service – a fax transmission slip, registration slip or the employer’s signature – needs to be attached when filing the documentation.
If the employer would like to oppose the condonation application, he has to do so within 14 calendar days of receiving the application. If the employer makes certain allegations in its opposing papers that the employee wishes to reply to, the employee has seven days to do so.
Once all the papers have been filed at the CCMA, a commissioner will be appointed by them to make a ruling on whether condonation will be granted or not.
If successful, the case will proceed to conciliation. If not, it is the end of the case, unless the employee wishes to review the ruling in the Labour Court.
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Wikus van Rensburg is a well-respected labour law attorney in Port Elizabeth in Nelson Mandela Bay.
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