Late CCMA Referrals: When Timing Becomes a Jurisdictional Issue. A Practical Warning for Employers, HR Teams & Labour Reps.

In labour disputes, timing is not a minor administrative issue. It is often the door through which the CCMA or a bargaining council obtains power to deal with the dispute at all.

The Labour Relations Act 66 of 1995 requires most unfair dismissal disputes to be referred within 30 days of dismissal, or within 30 days of the employer making a final decision to dismiss or uphold the dismissal. Unfair labour practice disputes must generally be referred within 90 days of the act or omission complained of, or within 90 days of the employee becoming aware of it.

Where a referral is late, the CCMA or bargaining council may permit the late referral only on good cause shown. In practical terms, that requires a proper condonation application. Without condonation, the late referral remains defective.

Why this matters to employers?

Employers often assume that, because a matter has been set down, jurisdiction must exist. That assumption is dangerous. Administrative processing is not the same as legal jurisdiction. A matter may be received, allocated, conciliated or even certified as unresolved, but that does not necessarily cure a late referral.

The practical point is simple: check the dates immediately. Before preparing for the merits, identify the date of dismissal or alleged unfair labour practice, the referral date, whether the referral is late, whether condonation was filed, and whether condonation was granted.

Condonation is not a rubber stamp.

Condonation is an indulgence. The referring party must explain the delay and place enough facts before the commissioner to justify the late referral. The classic factors include the degree of lateness, the explanation for the delay, prospects of success, prejudice and the overall interests of justice.

A short delay does not automatically mean condonation will be granted. Strong prospects of success also do not automatically rescue a poor explanation. The factors are weighed together, but a weak application remains vulnerable.

A certificate of outcome is not magic

A common mistake is to treat a certificate of outcome as if it cures every earlier defect. It does not. The Labour Court has held that a certificate does not confer jurisdiction where jurisdiction does not objectively exist.

The Labour Appeal Court has also confirmed that a certificate of outcome cannot cure a jurisdictional defect arising from a late referral where condonation was not sought and granted. The issue is not the paper trail. The issue is whether the forum had legal power to entertain the dispute.

Recent Labour Court authority applies the same approach: where an unfair dismissal referral was late and no condonation application was made, the CCMA lacked jurisdiction to arbitrate and the award was reviewable.

A practical point in limine

The referral was made outside the statutory time period prescribed by section 191 of the Labour Relations Act. No condonation application has been filed and condonation has not been granted. The referral is therefore jurisdictionally defective. The CCMA or bargaining council lacks jurisdiction to conciliate or arbitrate the dispute. Any certificate of outcome does not cure that defect.

This point should be raised clearly and early. Employers should avoid arguing the merits before the jurisdictional issue is decided, unless directed otherwise. The first question is not whether the dismissal was fair. The first question is whether the forum may lawfully hear the dispute.

The business lesson

Good employers do not rely on technicalities to avoid accountability. But good employers also do not allow defective litigation to proceed unchallenged. Jurisdiction protects both sides: employees receive a lawful process, and employers are not forced into proceedings that the forum has no legal power to run.

Sources…

1 - Labour Relations Act 66 of 1995, s 191(1)(b).

2 - Labour Relations Act 66 of 1995, s 191(2).

3 - Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) 532C-F.

4 - Bombardier Transportation (Pty) Ltd v Mtiya NO and Others (JR 644/09) [2010] ZALC 52; (2010) 31 ILJ 2065 (LC) para 54.

5 - South African Municipal Workers Union obo Manentza v Ngwathe Local Municipality and Others (JA56/13) [2015] ZALAC 26; [2015] 9 BLLR 894 (LAC); (2015) 36 ILJ 2581 (LAC).

6 - Sibanye-Stillwater t/a Sibanye Gold Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2771/21) [2024] ZALCJHB 369 (27 September 2024).