Timelines Surrounding Labour Problems

By Nonhlanhla Mayise (LLB)

Labour disputes require prompt action to ensure a fair resolution. In South Africa, these disputes follow specific legal time frames that employees must adhere to when referring their cases to the Commission for Conciliation, Mediation, and Arbitration (CCMA) or the relevant Bargaining Council. Unlike in America, where employment terminations may be abrupt, South Africa has established processes for addressing labour issues. 

Understanding Prescription 

Prescription refers to the time frame within which an aggrieved employee must refer a claim regarding unfair labour practices, dismissals, or discrimination by their employer. It is crucial to familiarize yourself with the following prescribed time frames:

Unfair Dismissal Disputes: You have a mere 30 days from the date the dispute arose to open a case. If an internal appeal is allowed by the employer, the 30-day period begins from the date the appeal decision is communicated to the employee.

Unfair Labour Practice: You have 90 days to refer a case of unfair labour practice. However, this time frame is subject to the condition that you first lodge an internal dispute resolution procedure, such as a grievance, demonstrating your attempt to resolve the matter internally with your employer.

Discrimination Cases: You have a window of 6 months to file a discrimination case.

Section 2: Initiating the Claim Process

Once you have decided to proceed with a claim against your employer, it is essential to complete the appropriate form based on the nature of the dispute you are referring to the CCMA. These forms can be obtained from the CCMA offices, the Department of Employment and Labour, or the CCMA website (https://www.ccma.org.za).

Consequences of Delay 

What happens if you miss the prescribed time frames? In such cases, you will be required to apply for Condonation.

Condonation Application: A Condonation Application is a request made to the council for accepting the late referral of your matter, beyond the prescribed period. By means of an affidavit, you provide reasons justifying your lateness. In calculating the referral time frames, exclude the first day and include the last day on which you refer the dispute. However, if the last day falls on a Sunday or a public holiday, it is excluded.

Factors Considered: The CCMA rules, particularly Rule 31, outline the factors considered when assessing a Condonation Application:

• The degree/extent of lateness in the referral.
• The reason for the lateness.
• The prospects of success on the merits.
• The prejudice to the other party.
• Any other relevant factors.

It is crucial for the employee to account for and justify each day of lateness. The commissioner holds the discretionary power to grant or deny the application.

Navigating labour disputes in South Africa requires a keen understanding of the prescribed time frames for referral and the potential consequences of missing these deadlines. Acting promptly and adhering to the established procedures is vital for a fair resolution. By following the guidelines presented in this article, employees can approach labour disputes with confidence, ensuring their rights are protected.