Satawu v SA Airways (Pty) Ltd (JA54/13) [2014] ZALAC 40; [2015] 2 BLLR 137 (LAC) (14 August 2014)

per Tlaletsi DJP [ Coppin and Sutherland AJJA concurring].

The LAC condoned the late filing of a statement of claim because the explanation for the delay, given the circumstances, is reasonable.  Regarding the prospects, the issue in dispute relating to alleged discrimination that could not be justified, the employer bears the onus to prove that it was not discriminatory.  The employment equity policy document is important and without it the LAC could not say the claim is without merit.

LAC summary:

Condonation for the late filing of the statement of claim in respect of claim in terms of the Employment Equity Act, 55 of 1998 (EEA).

Appellant filing statement of claim after CCMA ruling that it lacked jurisdiction.  Appellant contending that the 90 day period to refer dispute for adjudication starts from the date when the jurisdictional ruling was issued.

Appellant further contending that section 10 of EEA not prescribing a time period for referral.  Requirements that after failed conciliation dispute must be referred for adjudication within the 90 day period restated and confirmed previous decision of this court that the reasonable period for bringing a claim in terms of the EEA was 90 days.

However, explanation for the delay, given the circumstances, is reasonable- as regards the prospects, the issue in dispute relating to unfair discrimination- the employer bears the onus to prove the fairness of  the discrimination- in casu, employment equity policy document important- in absence of cannot conclude at condonation stage that the claim does not have good prospects.