Applicants need to apply for condonation if any referral document or application are delivered outside of the timeframes outlined by the LRA or the Rules of the CDR.
The LRA states that if a person has been dismissed, and wishes to refer the dispute to the CDR, he must do so within 30days of the dismissal. The 30 days start ticking from the date of the dismissal.
Applicants need to take note of the following:
- If an applicant has been dismissed and he appeals the dismissal as per the company's appeal procedure, the 30 days only starts on the date that the dismissal is confirmed on appeal.
- If the applicant is alleging an unfair labour practice, the dispute must be referred within 90 days from the alleged incident.
If an applicant does not meet these timeframes, then he needs to apply for condonation. The condonation application form is attached to the referral form. Both forms must be completed and sent to the CDR.
The condonation application may be heard on paper where sufficient information is received in the documents submitted by the parties. If the case warrants it, the parties may be called in for a hearing to argue their cases in front of a council commissioner. This is necessary where insufficient documentation is received and/or the case is complex.
A preliminary ("in-limine") hearing will be held for the parties to state their case about the late referral. The issues that the MEIBC commissioner will consider when hearing your application:-
- The degree of lateness (ie how late is the application);
- The reasons for referring the dispute late and degree of fault;
- The referring party's prospects of success in the case;
- Any prejudice to the other party;
- Any other relevant factors.
If the application for condonation is successful, the case will immediately be set down for conciliation or con-arb. If the application for condonation is unsuccessful, then the case will be dismissed and closed on the system.
The parties may take the decision of the MEIBC commissioner on review to the Labour Court.
If the CDR has the jurisdiction to deal with a dispute, it means that the LRA empowers the MEIBC to deal with it. Therefore, if a matter is out of the CDR's jurisdiction, it means that the LRA does not allow the MEIBC to deal with it.
The law for labour disputes differs from cases going to the civil courts. In cases going to the CDR:-
- In the case of a dismissal for conduct or incapacity, the employer party can only be represented by an employer federation or organisation and the employee party can only be represented by a union representative. The MEIBC conciliator may in certain circumstances allow the parties to be represented by lawyers.
- In all other disputes, the parties can be represented by a practicing lawyer, and the employer party can be represented by an employer federation or organization and the employee party can be represented by a union representative.
The parties to the dispute can only be represented by a union or employer organisation/federation if they were members of those organisations at the time the dispute arose. The parties cannot join a union or employer organisation after the dispute arose so that they can be represented.
It should be noted that "consultants" are not allowed in processes.
Application to Refer a Matter to the Labour Court
Parties to a dispute, which has not been settled in conciliation and will proceed on to arbitration, may apply to the CDR for the matter to rather go to the Labour Court in terms of section 191(6) of the LRA.
Parties usually take this route if the matter is of a high profile or a legal technical point is being considered and case law is contradictory o the matter.
In order to make this application, a letter and a motivation must be sent to the CDR at least 14 days after the conciliation certificate has been issued. The application must be served on the other party. The other party receiving the application has seven days to respond.
The Secretary of the MEIC, or a delegated person, will determine the application. The CDR will notify the parties within 14 days of receiving he submissions from the parties.
A subpoena is an order obliging a person to attend an arbitration as a witness or obliging someone to submit documents to an arbitrator.
A party wanting to subpoena witnesses or documents must complete a subpoena request form and attach a motivation. This form needs to be submitted at least 10 days before the arbitration hearing. A witness fee is payable, but a request may be made for the fee to be waived and that the MEIBC pays it.
The CDR can refuse to issue a subpoena if:-
- The evidence of the person does not appear to be necessary;
- No reasonable time period is given;
- The CDR is not satisfied that the party has made arrangement to pay the witness fees and made transport arrangements.
The person subpoenaed will be given at least seven days notice of the hearing. The MEIBC commissioner may order that no witness fee be paid to the witness.