The Department of Correctional Services (“the employer”) was five weeks late in applying for the review of an award bearing case number PSBC118/17/18 (“the award”). I was the Commissioner who issued the the award under the auspices of the Public Service Co-Ordinating Bargaining Council (PSCBC) on 17 March 2018. The labour court judgment citation is: Minister of Correctional Services v Public Service Co-Ordinating Bargaining Council (JR1050/2018) [2023] ZALCJHB 60 (17 March 2023) (“the judgment”).

An important factor, that must be considered, in condonation applications, is whether the applicant has good prospects of success. Lancaster AJ, the judge in the matter, reasoned, however, that, despite the fact that the employer did not have good prospects of success, it was in the interest of justice: “… to consider the Applicant’s argument in creating certainty for the employees working as centre-based officials” (“the employees”).

The argument that needed to be resolved with certainty was whether the employer was correct to compel the employees to apply for leave on public holidays. The judge, in granting condonation, reasoned: “Should I refuse condonation, these employees will remain in the dark as to whether they are required to apply for leave and the litigation is bound to continue. Further, this will also create uncertainty for future employees employed on the same basis”.