CT International Financiers (Pty) Ltd v Madelaine Van Rooyen

The first respondent (employee) resigned on 7 July 2017 and left employment on 4 August 2017. On 13 March 2018, the employee referred an unfair dismissal dispute (constructive dismissal) to the CCMA, alleging the dispute arose on 1 September 2017. This was approximately 150 days late. The employee applied for condonation for the late referral, set down for hearing on 3 April 2018. On 3 April 2018, before the condonation application was determined, the parties negotiated and concluded a settlement agreement whereby the employer would pay the employee R200,000 by 6 March 2018 (presumably meant to be 6 April 2018). The employer was represented by its HR Manager Andrea Scholtz and a representative from NEASA. The employer failed to pay. On 8 May 2018, the employee applied to have the settlement agreement made an arbitration award under section 142A of the LRA. The commissioner made the settlement agreement an arbitration award on 23 May 2018. The employee then applied for certification under section 143 of the LRA. The employer opposed certification, arguing that the settlement was entered into without express mandate from the Managing Director. The commissioner dismissed this opposition and certified the award.

• Whether the CCMA had jurisdiction to make a settlement agreement an arbitration award under section 142A of the LRA where condonation for late referral had not been determined
• Whether condonation for late referral is a prerequisite before the CCMA can exercise powers under section 142A to make a settlement agreement an arbitration award
• Whether the commissioner acted ultra vires in making the settlement agreement an arbitration award and certifying it under section 143 of the LRA
• The proper interpretation of 'right to refer' in section 142A(2) and section 158(1A) of the LRA

1. The review application is dismissed with costs.

Condonation for late referral of a dispute to the CCMA is not a prerequisite for the CCMA to have jurisdiction to make a settlement agreement an arbitration award under section 142A of the LRA. Section 142A only requires that the dispute has been referred to the CCMA, not that it was timeously referred or that all procedural requirements have been met. The phrase 'right to refer' in section 142A(2) must be interpreted broadly to mean a dispute that is of a kind amenable to adjudication by the CCMA or Labour Court once prerequisites are satisfied, not a legal right capable of immediate exercise. Requiring condonation before allowing settlement would be contrary to the LRA's objectives of speedy and cost-effective dispute resolution and would discourage early settlement of disputes.

The Court observed that the employer appeared to be attempting to avoid honouring the settlement agreement through technical jurisdictional arguments. The Court noted several factors suggesting bad faith: (1) the employer never previously challenged jurisdiction based on lack of condonation; (2) the employer failed to disclose that its representative was the HR Manager; (3) the employer failed to disclose that the HR Manager was accompanied by a representative from an employer's organization; (4) no action was taken against the representative for allegedly exceeding authority; (5) no confirmatory affidavit from the representative was provided; and (6) the employer did not seek to set aside the settlement agreement itself, apparently preferring to render it unenforceable through CCMA mechanisms while leaving open civil litigation options. The Court emphasized that such conduct frustrates the purposes of the LRA and leaves employees in precisely the vulnerable position the LRA was designed to prevent.

This case clarifies that condonation for late referral is not a jurisdictional prerequisite for the CCMA to make a settlement agreement an arbitration award under section 142A of the LRA. It promotes the LRA's objectives of speedy and cost-effective dispute resolution by allowing parties to settle disputes at any stage, even before procedural issues like condonation are determined. The decision removes procedural obstacles to early settlement and ensures employees have access to effective enforcement mechanisms for settlement agreements. It reinforces that the phrase 'right to refer' in sections 142A(2) and 158(1A) should be interpreted broadly to mean disputes capable of resolution by the CCMA or Labour Court, not rights immediately exercisable. The judgment protects employees from employers attempting to avoid settlement obligations through technical jurisdictional arguments.