Please note that this pertains to South African Labour Relations and Best Practice requirements
The Merriam-Webster dictionary says that ‘condonation’ is:
“Implied pardon of an offense by treating the offender as if it had not been committed”.
Condonation in terms of labour is when an employee fails to refer a dispute to the CCMA (Committee for conciliation, mediation and arbitration), within the 30 day time period.
Let’s bring out the protagonists. Mike owns a small but very busy cell phone retail store is a popular mall. George is one of the sales assistants.
George keeps taking sick leave and he does not follow the correct procedures which are 1) to contact his supervisor if he is not going to be at work or be at work on time and 2) to produce a doctor’s certificate if he has been off work for longer than two days.
George has already had a 1st, 2nd and final written warning for these offences.
George is once again not at work, he hasn’t phoned in and they have not been able to contact him. A week later George comes back to work. George is silent on the issue of why he did not call in and why he was not contactable but he produces a note from the clinic evidencing that he was at the clinic on the first day that he was absent from work. There is no further documentation to evidence that George has been booked off.
George is issued with a notice to attend a disciplinary, he is found guilty and dismissed.
George does not appeal his dismissal and nothing is heard from him until three months later when Mike received a notification from the CCMA.
Now the normal rule is that George had 30 days after the date of his dismissal to lodge a dispute at the CCMA and yet, here we are three months down the line and a dispute has been lodged.
George had been to a labour attorney who had made a Condonation application and the commission had granted it.
Some of the issues that the commission would have had to look at and consider before either condoning the application or rejecting it are (but not limited to):
– How late is the referral
– The reason for the referral being late
– Whether the employee has a case or not
– Whether there is prejudice to both the employer and the employee.
In this particular instance George had advised that he had been ill and had supporting documentation (being a letter from the clinic where he had been committed) to support this. On the grounds of this documentation, the application was successful (it doesn’t mean that he has won, just that he can still lodge his claim).
The lesson here of course is for the employers to understand that just because the 30 day period has expired and they haven’t received notification from the CCMA, doesn’t mean it’s still not coming!