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Thread: Annoyed........ condonation application.

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    Annoyed........ condonation application.

    Hi all

    I have just received an application for condonation in respect of an unfair dismissal dispute. It is 237 days late - reason "after dismissal I did not know what to do". There is no identity number for the employee and we have 14 different companies. I can't even find employment records for this person and the envelope was addressed to "Algemene werker"

    I have to oppose it (obviously), and just wanted some additional inputs around prejudice that would be suffered by the company if the condonation was to be granted. My thoughts are:

    1. The referral is 237 days late and the applicant had more than sufficient time to consult on further actions should he feel he was unfairly dismissed.
    2. The employees are made aware of their rights to refer to the CCMA during their employment and the function of the CCMA is common knowledge. Information is freely available to all employees, and there are over 150 employees working at the company.
    3. I can find no record of the employee with the details provided on the application so cannot determine whether or not the person worked for the company.
    4. There is insufficient information provided to determine whether the individuals who may or may not be involved are even still working at the company.
    5. There is insufficient information provided to determine whether the applicant has been employed in the interim period.

    Any ideas anyone??

    I need to respond within 14 days.

    Thanks

  2. #2
    Platinum Member SilverNodashi's Avatar
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    I don't know if you have contacted the CCMA yet but I suggest you get in touch with them ASAP, even if it's just to find out who this person is. If he/she never worked at your company, get an affidavid drawn up and signed by the police, and take them a certified copy. A certified list of employees would also be a good idea. Keep everything, I mean everything you take to them and only give them certified copies. Take note of of the case number, date, and person taking your statement as well. A false case against you won't go far.

  3. #3
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    It is the CCMA's core business to facilitate conciliation. There are rules governing the conciliation process, but also rules allowing for departure from said rules, e.g. condonation of dispute registration after 30 days. Communication with the CCMA would establish who the person is and from there you would obviously consult your records. What stands out in this instance for me, is the importance of record keeping. Please keep us informed of the outcome.

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    Platinum Member sterne.law@gmail.com's Avatar
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    237 days is excessive.
    Condonation is an indulgence not a right.
    Ignorance of knowing what to do does not explain away the time. A mere statement that I did not know what to do is insufficient.
    They need to put u the facts as to why suddenly they realised.
    Further, if you dismissed the company is obligated to advise the employee of the CCMA appeal. If you have that as a practice, then attach the dismissal form as a proof.

    The Labour Appeal Court in Moila v Shai NO and Others (2007) 28 ILJ 1028 (LAC),
    confirmed the principle that where „no explanation has been given for the delay or an
    “explanation” has been given but such “explanation” amounts to no explanation at all, it is
    not necessary to consider the prospects of success‟

    In Independent Municipal & Allied Trade Union obo Zungu v SA Local Government
    Bargaining Council & others (2010) 31 ILJ 1413 (LC) the court expressed the view that in
    explaining the reason for the delay it is necessary for the party seeking condonation to fully
    explain the reason for the delay in order for the court to be in a proper position to assess
    whether or not the explanation is a good one.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

  5. #5
    Platinum Member sterne.law@gmail.com's Avatar
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    Your prejudice is -
    So excessive delay, key witnesses have left and/or memory is not good.
    Of course you need the CCMA to give details

    The employee has shown no interest and waived the right

    Prospects of success are also important - a poor explanation for delay can be over ridden by good prospect. Alternatively, poor prospects may be too great to grant condonation even if the delay is excusable.

    If the CCMA does not have details then oppose by -
    the explantion for delay is poor and put up your proof that employees are told about CCMA etc, in other words the reason is nonsense.
    If employee did not set out prospects the application is fatally flawed.
    Set out that the lack of details makes it impossible to answer, especially in terms of prospects.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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