The Rules Regulating the Conduct of the Proceedings of the Labour Court, as well as the Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration ("CCMA"), provide that the Court or the CCMA may, on good cause shown, condone non-compliance with any period prescribed by these rules. Awards and judgments from the CCMA, the Labour Court and other forums often record that "condonation is not there for the mere asking", yet parties to disputes habitually do not comply with time periods and our labour courts and tribunals continuously face applications for condonation.
The factors for a condonation application
It is well-established that when applying for condonation for the failure to abide by any prescribed time period, an applicant is required to make out a case for the indulgence sought and bears the onus of satisfying the court or tribunal that condonation should be granted. In this regard, the applicant must deal with the following factors which the judge or commissioner will consider in totality as no one factor is individually decisive:
- the degree of lateness;
- the reasons for the late referral;
- the prospects of success in the underlying dispute; and
- any other relevant factors, including any prejudice that either party may suffer.
It is now also an established principle that where there is a lack of proper explanation for a delay, there is no need for a presiding officer to consider the prospects of success in the underlying matter at all.
Two recent Labour Court decisions provide illustrations of how the Labour Court approaches condonation applications.
No explanation... No condonation
In Nehawu obo Coetzee and 1 Other v South African National Blood Services (where ENS acted for the South African National Blood Service), the individual applicant employees were dismissed for misconduct. They claimed that their dismissals were automatically unfair and referred a dispute to the CCMA.
On 9 December 2019, the CCMA issued a certificate of outcome that the dispute remained unresolved. The applicants then had 90 days to refer the matter to the Labour Court for adjudication. The applicants nevertheless referred the dispute to the CCMA for arbitration and the employer raised a point in limine to the effect that the CCMA lacked the jurisdiction to arbitrate the dispute. The commissioner ruled that the CCMA did not have jurisdiction to arbitrate the dispute on a ground unrelated to that raised by the employer.
It appears that the applicants' attorney accepted that the matter should have been referred to the Labour Court and did so some three months after the lapse of the 90 day period. Their condonation application was only filed more than two years after their referral of the dispute to the Labour Court after the Labour Court instructed them to do so.
In considering the condonation application, the Court stated that:
- the applicants conceded that the delay in referring the matter to the court was considerable;
- the condonation application provided no detail as to when the applicants' attorneys realised that the CCMA did not have jurisdiction, what the reasons were for such a conclusion, and what steps were taken to ensure that the matter be referred to the Labour Court as soon as possible after it was realised that this should be the case;
- the delay in bringing the condonation application was not explained at all, with the applicant making some suggestion that it was not required to seek condonation until the Court directed it to do so, which was devoid of any basis in law;
- despite a significant problem with the explanation for the late referral of the dispute and no explanation for the delay in bringing the condonation application, the Court was willing to consider the prospects of success in the underlying dispute but that these would need to strongly favour the applicants in order to overcome the other factors; and
- from the common cause facts regarding underlying dispute, the applicants faced significant hurdles in relation to their prospects of success, and that the prospects of success therefore favoured the employer.
Having considered the relevant factors, the Labour Court dismissed the applicants' condonation application.
A short delay with prospects of success
In the recent decision in Bosch v Seynhaeve NO, the Labour Court was required to deal with an application to review the decision of an arbitrator not to grant condonation for the late referral of a dispute to the South African Local Government Bargaining Council ("SALGBC"). The referral was some eight days late, and the explanation proffered for the late referral was the unavailability of the employee's union representative to deal with the matter.
The arbitrator dismissed the applicant's condonation application on the basis that, even though the delay was minor, the applicant's reasons for the delay were "not completely satisfying" nor "completely acceptable". In respect of the applicant's prospects of success in the underlying dispute, the arbitrator refused to take into account the applicant's extensive closing arguments submitted to the chairperson of his disciplinary hearing which supported the applicant's claim of the unfairness of his dismissal, and which had been attached to the condonation application.
On review, the Labour Court determined that:
- while the explanation for the delay was weak, the delay had been a short one and the applicant had a plausible case to pursue;
- the primary question was whether the short delay should be excused, given all the other relevant factors and, having regard to the nature of the dispute, the length of the delay, the poor explanation for it, that there were prima facie prospects of success for the applicant should he prove his contentions, the limited prejudice the short delay could have caused the employer, the need for expeditious dispute resolution, and the interests of fairness to both parties.
Based on the above, the Court set aside the arbitrator's ruling that condonation should not be granted and substituted it with an award granting condonation and directing that the matter be enrolled by the SALGBC for conciliation.
Key takeaway
These decisions, as with so many others like them, serve as guidance to employees and employers who may be applicants or respondents in condonation applications. In particular that:
- Condonation will not simply be granted to an applicant.
- When applying for condonation, applicants should address each of the required factors and carefully substantiate each one.
- Applicants must show that they have reasonable and bona fide prospects of success.
- Every period of the delay, no matter how short, must be adequately explained; not just a portion thereof.
- A lack of explanation for any period of the delay could result in the presiding officer not considering an applicant's underlying prospects of success and dismissing the application.
- Merely relying on the attorney's failure to take certain steps without a proper explanation may be insufficient to justify granting condonation.
- No one factor is decisive. The presiding officer will consider all of them and, as demonstrated with the cases explored here, any combination of the factors may determine whether or not the condonation application should be granted.
(Note that in the Nehawu matter, the applicant as sought leave to appeal to the Constitutional Court.)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.