The following steps should be followed:

• The employee must complete the LRA 7.11 form and ensure that it is signed by the referring party.
• The form must be served on the other party by hand, registered post or by fax. You will need to prove that your employer received a copy of the referral so you should therefore keep a copy of the transmission slip, postal receipt etc.
• Proof of service must be attached to the referral form.
• The form must be submitted to the CCMA.

Unfair Dismissals – The dismissed employee must refer the matter to the CCMA or Bargaining Council within 30 days of the date of dismissal.  You calculate the 30 days by excluding the first day and including the last day. All days are counted which means weekends and public holidays are included.    If the employer makes a final decision to dismiss, say for example the outcome of an appeal hearing, the matter must be referred within 30 days of that final decision to dismiss.  

Discrimination – The employee must refer the matter to the CCMA or council within six (6) months of the date of the act or omission, which allegedly constitutes some form of unlawful discrimination.

ARBITRATION

A matter cannot be referred directly for Arbitration.  It must first be referred to the CCMA or Bargaining Council for Conciliation and a certificate reflecting that the matter was not resolved issued by the Commissioner before it can be referred for Arbitration.

The following steps should be followed:

• The employee must complete the LRA Form 7.13 and ensure that it is signed by the referring party.
• The form must be served on the other party by hand, registered post or by fax.  You will need to prove that your employer received a copy of the referral so you should therefore keep a copy of the transmission slip, postal receipt etc.
• Proof of service must be attached to the referral form.
• A copy of the Certificate of Outcome from the Conciliation should be attached to the Referral
• The form must be submitted to the CCMA.

Arbitration should be applied for within three (3) months from the date on which the Commissioner issued the Certificate of Outcome reflecting that the matter was not resolved through the process of Conciliation.  If the above time periods have lapsed, the referring party must formally apply for condonation.

In terms of Section 23 of the Constitution: Everyone has the right to fair labour practices.  It is possible to seek redress if you are a victim of an unfair labour practice at your place of employment.

Any unfair act or omission that arises between an employer and an employee, involving –

(a)      the unfair discrimination, either directly or indirectly, against an employee on the grounds of race, colour, gender, sex, religion, conscience, belief, culture, language, family responsibility or marital status or any other arbitrary ground;

(b)      the unfair conduct by an employer relating to the promotion, demotion or training of an employee or the provision of benefits to an employee;

(c)      the unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee;

(d)       the failure or refusal of an employer to reinstate or re-employ a former employee in terms of an agreement.

A defence to certain claims of discrimination can be:

(a)      an employer is not prevented from adopting or implementing employment policies and practices that are designed to achieve the adequate protection and advancement of persons or groups of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms;

(b)      any discrimination based on an inherent requirement of the particular job does not constitute unfair discrimination.

The powers of an arbitrator to determine unfair labour practice disputes are currently unclear. An amendment to section 193 of the Act places a limitation of twelve months remuneration on any arbitration award in which compensation is granted.

In the case of unfair labour practice disputes, employees will be required to refer these within 90 days of the perpetration of the unfair labour practice or 90 days from becoming aware of the unfair labour practice. (Employees whose contracts are terminated with notice may refer disputes to conciliation during their notice period.)

If a dispute is referred outside the time periods prescribed by the Labour Relations Act the referring party needs to apply for condonation.

The CCMA Rules, require the applicant to bring an application, on affidavit (sworn statement), explaining why the referral is late and why the CCMA should allow the matter to continue (condonation). The Labour Relations Act permits condonation to be granted on “good cause shown”. The CCMA Rules set out what the application should contain. These are the following: –

·         The degree of lateness. The applicant must indicate the number of days that the referral is late by explaining when the applications have been served. The applicant must show the number of days late by showing when the CCMA should have received the application.

·         The reason for the lateness. The applicant needs to explain why the dispute was referred late by explaining the steps taken prior to referring the case to the CCMA.

·         Prospects of success on the merits of the case. The applicant needs to set reasons why the case should succeed. This will involve giving some background into the nature of the dispute and explaining why the applicant believes that the case will be successful.

·         Any prejudice to the other party.  Finally, the applicant must show what disadvantages will be suffered by both parties if condonation is not granted/or granted.

Grounds for rescission:

• If the award or ruling was erroneously made in the absence of any party,
• If there is an ambiguity or an obvious error, but only to the extent of that ambiguity or error, and
• If the award or ruling was granted as a result of a mistake common to the parties.

An application for the rescission of an award or ruling must be made within 14 days of the date on which the applicant became aware of:

• the award or ruling,
• a mistake common to the parties

In terms of section 145 of the LRA, a party may apply to the Labour Court on the basis of an alleged defect with a commissioner’s rulings or awards. The party who alleges such a defect must apply to the Labour Court to set aside the award within six weeks of the award being served.

A defect means:

• that the commissioner committed misconduct in relation to the duties of the commissioner as arbitrator;
• that the commissioner committed a gross irregularity in the conduct of the arbitration proceedings;
• that the commissioner exceeded his powers; and
• that the award was improperly obtained.

It is important to note that the review is not an appeal, and therefore it is not related to the merits of the matter but to the commissioner’s conduct.

Rule 12 of the Labour Court Rules provides as follows: “Extension of time limits and condonation –

 (1) The court may extend or abridge any period prescribed by these rules on application, and on good cause shown, unless the court is precluded from doing so by any Act.

(2)….

(3) The court may, on good cause shown condone non compliance with any period prescribed by these rules”.

In Melane v Santam Insurance Co. Ltd 1962 (4) SA 531 (A) the Appellate Division of the Supreme Court considered the meaning of “on good cause shown” or “on sufficient cause shown” and formulated the factors which need to be considered in this regard. These factors are: the degree of lateness, the explanation for the delay, the prospects of success and the importance of the case. The court held that the above factors are interrelated and should be considered as a whole and are not individually decisive on whether condonation should be granted or not.

A practitioner’s busy schedule is not an acceptable explanation for delay in observing time limits. An applicant should apply for condonation as soon as he or she realises that his or her papers are out of time.