It is often said that timing is everything and that being in the right place at the right time can make all the difference.
The story I want to share with you today, encapsulates and clearly illustrates both of these aspects.
About four years ago, I employed a promising young clerk who happened to be in the right place at the right time – or in this instance, the right place at the wrong time!
He was still testing out the waters of the legal marshland we call consultation when an elderly man and his wife popped up on the other side of his desk one morning.
The couple arrived without fanfare or appointment and at that precise time the clerk was the only available legal eagle.
His time had come to put theory into practice.
The greying gentleman claimed to have been unfairly dismissed after a forklift accident in the factory that he had been working in at the time. His wife had no claims at all and was merely assisting her husband in navigating the labyrinth called labour law.
And so the clerk began his interrogation.
He pulsed the man at length about the circumstances of the accident and the actions of his employer. He left no stone unturned to get to the bottom of this seemingly heartless act of dismissing a man who must have been close to his retirement.
After investigating every nook and cranny of the case and asking and re-asking relevant questions to establish the facts, he asked the question he now always asks first: When exactly did the alleged dismissal take place?
The man gave it to him in day, month and year and to the recruit’s distress, everything he had just so patiently noted took place more than 20 years ago!
In this time the Berlin wall fell; Nelson Mandela was freed; Lady Di got engaged, married, divorced and killed; Robert Mugabe was re-elected ad nauseam and the whole South African legal system changed, he would later tell me in exasperation.
My guess is that the man also forgot why he didn’t refer the dispute in the first place . . .
The date on which a dispute arises is extremely important, as a dispute has to be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) within 30 days of an employee being dismissed, or within 30 days of the employee becoming aware of the fact that he or she has been dismissed.
Not to be seen as a completely unsympathetic organism, the system provides that a successful condonation application could excuse a late referral to the CCMA. But, when it comes to labour issues, as with many things in life, procrastination never stands anyone in good stead.
But, alas, in our forklifter’s case, I think no excuse – unless he fell asleep like Sleeping Beauty and could prove it – would probably have been able to get the CCMA to condone his late referral.
Therefore, should you find yourself in the unenviable position of locking horns with an employer or an employee, it is best to take the bull by the horns, seek advice, be honest and make sure that when the system’s wheels start turning, you’re already on the wagon!
Send your labour and other workplace related questions to email@example.com.
Wikus van Rensburg is a well-respected labour law attorney in Port Elizabeth in Nelson Mandela Bay.
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