Missing the CCMA referral deadline is fatal to most unfair dismissal claims. This article explains exactly how the 30-day window works, when the clock starts, and what to do if you are close to or past the limit.
The Statutory Deadline
Section 191 of the Labour Relations Act 66 of 1995 (LRA) requires that a dispute about an unfair dismissal be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a relevant bargaining council within 30 days of the date of dismissal, or, if the employee only became aware of the dismissal after it took effect, within 30 days of the date on which the employee became aware of the dismissal.
This is a hard deadline. The CCMA has jurisdiction to condone a late referral — but condonation is not automatic, and a significant proportion of condonation applications are refused. Filing on time is always preferable to relying on condonation.
When Does the Clock Start?
The 30-day period starts from the date of dismissal. In a straightforward dismissal, this is typically the date stated in the dismissal letter. Where there is no written notice of dismissal, it is the date on which the termination of employment took effect.
In a constructive dismissal — where an employee resigns because the employer has made continued employment intolerable — the date is the date the employee resigned, not any earlier date on which the conduct began. The 30 days from that date is typically short, which is why employees in constructive dismissal situations must act promptly.
For retrenchment disputes, the clock runs from the date on which notice of retrenchment was given, not from the date the notice period expires.
How to Count the 30 Days
The 30-day period is calculated in calendar days, not business days. Saturdays, Sundays, and public holidays are included in the count. Day one is the day after the date of dismissal, and the referral must reach the CCMA on or before day 30.
If the 30th day falls on a public holiday or a weekend, the deadline extends to the next business day. However, this is an exception — it does not mean the deadline is relaxed where it falls on a weekday.
What the Referral Requires
A referral is made on CCMA Form 7.11 (or the equivalent bargaining council form). It must state the nature of the dispute, the parties involved, and the relief sought. It must be signed by the employee or their representative and served on the employer — meaning the employer must receive a copy at the same time it is filed with the CCMA.
The referral can be submitted in person at a CCMA office, by fax, or electronically through the CCMA's online portal. The date on which it is received by the CCMA is the relevant date for purposes of the 30-day calculation — not the date it is posted or sent.
If You Are Past the 30-Day Deadline
A late referral requires a condonation application — a formal request to the CCMA or bargaining council to overlook the late filing and hear the dispute anyway. The commissioner hearing the condonation application will consider a range of factors: the length of the delay, the explanation for it, the prospects of success on the merits, the prejudice to the employer, and the importance of the dispute to the employee.
There is no bright-line rule. Some delays of a few days with no good reason are refused; some delays of months with a compelling explanation are condoned. What is clear is that the longer the delay and the weaker the explanation, the less likely condonation becomes.
If you are late but close to the deadline, you should refer the matter to the CCMA immediately — even without legal representation — and prepare the condonation application as a separate document. Waiting to get the paperwork perfect while the delay grows is the wrong approach.
Disputes That Have Different Timeframes
Not all CCMA disputes follow the 30-day rule. Disputes about unfair labour practices (other than dismissal) must be referred within 90 days of the act or omission. Discrimination disputes under the Employment Equity Act must be referred within 6 months. Disputes about severance pay must be referred within 12 months.
The 30-day rule is specifically for dismissal disputes — both substantive unfairness and procedural unfairness. If you are uncertain which category your dispute falls into, seek advice before the earliest applicable deadline.
What Happens at the CCMA
Once the referral is accepted, the CCMA will schedule a conciliation hearing — typically within 30 days. At conciliation, a commissioner facilitates a negotiation between the parties. If the matter is not resolved at conciliation, the employee can request that it proceed to arbitration. In arbitration, the commissioner hears evidence and issues a binding award.
Employees may represent themselves at the CCMA. However, the rules of procedure and evidence at arbitration are more complex than they appear. Legal representation is permitted in some circumstances, and many employees benefit from having an attorney prepare them even where the attorney does not appear on their behalf.
This article is published for general information only. It does not constitute legal advice and does not create an attorney-client relationship. The law may have changed since publication. For advice specific to your situation, contact Midford Legal Consultants.
