Sirchia v Mathebula N.O & others [2026] ZALCJHB 394

Date of Judgment & Seat of Court: 16 October 2026, Labour Court, Johannesburg

Case No: JR1229/23

Name of Judge(s): Motshekga AJ

Summary of Factual Matrix:

The applicant, a customer support representative, was dismissed by Safintra on 2 March 2023 for gross insubordination and gross dishonesty after defying an instruction to cancel previously approved annual leave so as to attend SAP training, and rearranging her training sessions herself. Her unfair dismissal referral reached the CCMA 15 days late; she explained that an error in her attorneys' office had misrecorded her email address until 28 March 2023 and that her representative was then ill from 11 to 17 April 2023.

On the papers, the commissioner refused condonation, finding the explanation unreasonable because the attorneys could have referred the dispute regardless, that she had no prospects because she had merely labelled the dismissal automatically unfair, and that the employer would be prejudiced by having to defend an old matter (erroneously recording a delay of 393 days). The applicant applied under section 145 of the LRA to review the ruling. The issues were the reasonableness of the ruling and, if it were set aside, whether the Court should itself decide condonation.

Summary of Findings:

[7] ‘The decision whether to grant or refuse condonation is discretionary, to be exercised judicially upon a consideration of all the facts, including the degree of lateness, the explanation for the delay, the prospects of success, the importance of the case and the prejudice to the other party, factors which are interrelated and none of which is individually decisive.[3] While the broader principle is fairness and the interests of justice,[4] an indulgence of this kind is not to be had for the mere asking, and a party seeking it must give a reasonable explanation for the delay.[5]’

[9] ‘The Court is not persuaded by this submission, in that the Commissioner’s reasons for rejecting the explanation for the delay, and for finding that Sirchia had no prospects of success, do not rest on the error, which, to that extent, is not material and is to be excused.’

[10] ‘The Commissioner’s conclusion on prejudice, however, stands on a different footing. On the delay of 15 days which the Commissioner himself determined, the referral was made some six weeks after Sirchia’s dismissal, and the matter could by no means be described as stale. That conclusion is explicable only by reference to the erroneous period of 393 days, and it cannot stand. Furthermore, Safintra did not contend before the Commissioner that the delay had compromised its ability to defend the matter.’

[11] ‘That prejudice, however, arises from the time that has passed since the ruling was issued, and not from the delay in the referral, which is what is relevant to condonation.’

[12] ‘That another course may have been available to her attorneys does not detract from the reason which Sirchia in fact gave, namely that the error in their office prevented communication between them until 28 March 2023. In the Court’s view, it is unreasonable to non-suit a litigant merely on the basis that an alternative course was available. The reasonableness and acceptability of an explanation call for an objective assessment. The facts on which Sirchia’s explanation rests were not disputed, and the Commissioner did not find them to be untrue. By rejecting the explanation on the basis of a course which her attorneys could have followed, rather than on an assessment of the reason which she proffered, the Commissioner failed to exercise his discretion judicially, and this Court’s interference is warranted.’

[13] ‘Furthermore, the Commissioner himself found that a delay of 15 days was not excessive, and in the same ruling condoned the late filing of Safintra’s opposing papers on the strength of a miscalculation by its attorneys.’

[14] ‘Turning to the prospects of success, the Commissioner’s finding that Sirchia had failed to provide sufficient information to enable him to assess them, as she had merely submitted that her dismissal was automatically unfair, is not borne out by her affidavit.’

[15] ‘The label which Sirchia attached to her dismissal is not decisive. A commissioner is not bound by the characterization which a party gives to a dispute, as the labels which parties attach cannot change its underlying nature.[6] In her referral, Sirchia identified the dispute as an unfair dismissal relating to misconduct, and Safintra’s own version is that she was dismissed for that reason. It is common cause that a dismissal occurred, and should the dispute remain unresolved at conciliation, Safintra will be required to prove that it was fair.[7]’

[16] ‘Thus, the mere labelling of the dismissal as automatically unfair was not licence for the Commissioner to disregard the facts which Sirchia placed before him, and he thereby misdirected himself.’

[17] ‘On the facts before the Commissioner, the dispute is triable, notwithstanding Safintra’s reliance on the decision in La Foy v Department of Justice and Constitutional Development and Others, that an employer may revoke leave where pressing operational matters require it.[8] As Mr O’Dwyer correctly conceded in argument, whether Safintra’s operational requirements justified revoking leave which it had approved, and whether Sirchia’s attempt to swop her training dates amounted to defiance or to a genuine effort to accommodate both commitments, cannot be determined on the papers. Those are matters for arbitration, the outcome of which may go either way.’

[18] ‘In the result, the Commissioner’s refusal of condonation is not an outcome that a reasonable decision-maker could reach. The rejection of the explanation rested on the availability of another course rather than on the reason which Sirchia gave, the assessment of her prospects of success disregarded the facts set out in the affidavit, and the conclusion on prejudice depended on an erroneous delay of 393 days. The ruling therefore stands to be reviewed and set aside.’

[19] ‘Three years have passed since the referral, and a remittal would occasion further delay in the resolution of a dispute which has yet to be conciliated. The parties’ affidavits which served before the Commissioner form part of the record in these proceedings, and the Court is accordingly well placed to decide the application.’

[22] ‘The explanation is therefore not complete in every respect, in that it does not account for the period after communication with her attorneys was restored and before her representative fell ill and is not supported by a confirmatory affidavit from them. It is, however, an explanation given under oath, which Safintra did not dispute, and it shows that the referral was mostly delayed through an error which originated in her attorneys’ office.’

[23] ‘In addition, Sirchia’s conduct is not that of a litigant indifferent to the time limits. She engaged her attorneys before the disciplinary hearing, and once communication was restored, she was in a position to instruct them. Her actions throughout illustrate those of a litigant intent on vindicating her rights.’

[24] ‘The ultimate standard is the interests of justice, which requires due regard to all the relevant factors, as determined by the particular circumstances of each case.[9] Safintra, in accepting that the delay is not excessive, did not suggest that it had been prejudiced thereby. By contrast, the refusal of condonation left Sirchia without any remedy in respect of her dismissal. The dispute is, moreover, triable. Having considered these factors cumulatively, the Court finds that it is in the interests of justice that condonation be granted.’

[25] ‘Sirchia sought costs only in the event that Safintra’s opposition was found to be unreasonable. Although unsuccessful, Safintra’s opposition was not unreasonable, as it raised legitimate concerns regarding the completeness of the explanation for the delay. In the exercise of the discretion conferred by section 162 of the LRA, the requirements of the law and fairness therefore do not warrant a cost order.’

Relief: The commissioner's ruling of 21 May 2023 (GAEK4011-23) refusing condonation was reviewed and set aside and substituted with an order granting condonation for the late referral. The CCMA was directed to enrol the dispute expeditiously for conciliation before a different commissioner. No order as to costs was made.

Judgment on SAFLII