- A former BAT manager brought his bullying dispute to the CCMA about 19 months late, well beyond the 90-day deadline.
- The Labour Court found several long, unexplained delays, including a six-month gap after consulting lawyers.
- The judge described the delay as potentially “opportunistic” and confirmed the CCMA’s decision to refuse condonation.
The Labour Court in Cape Town ruled that former British American Tobacco South Africa manager Franz Hoflinger did not provide a convincing reason for waiting nearly 19 months before taking his workplace bullying dispute to the CCMA. The court found the delay appeared potentially “opportunistic”.
Hoflinger alleged that he was subjected to bullying, intimidation and victimisation by his employer, which left him fearing for his job and led him to accept a voluntary severance package that he says he was not ready to take.
He sought compensation, claiming the alleged bullying forced him to leave the company prematurely. However, the case focused less on the bullying allegations and more on whether the CCMA acted reasonably in refusing to excuse the late referral.
Hoflinger’s employment ended on 31 October 2021 after he signed a voluntary termination agreement in September that year. He only referred the dispute to the CCMA in March 2023. The court calculated that the referral was about 19 months and 19 days late.
Judge AC Oosthuizen called the delay “considerable” and “inordinately lengthy,” pointing out that the bullying and harassment allegations would have been known to Hoflinger when they happened.
“The unfair labour practice alleged by the Applicant consists of bullying and harassment, and it is difficult to argue that the Applicant would not have known about these when they happened,” said the judge.
Since the alleged conduct took place before the termination agreement was signed, the court found there was no reason to argue that Hoflinger only became aware of the dispute later.
Court says explanation was not complete
The judgment stressed that anyone seeking condonation must give a reasonable, satisfactory, and detailed explanation for the whole period of delay.
The CCMA commissioner found that Hoflinger failed to explain all periods of delay and that long stretches were left unexplained. Judge Oosthuizen agreed, calling the finding “reasonable and in fact supported by the evidence”.
Hoflinger relied on a timeline that included meetings with another employee, consultations, working on witness statements, and being involved as a potential witness in that employee’s dispute with the company. The court rejected his explanation.
“The circumstances and outcome of the other employee’s legal proceedings cannot excuse the Applicant’s failure to act promptly on his own dispute,” said Judge Oosthuizen.
The judge also noted that working on witness statements for another matter did not explain why Hoflinger could not pursue his own claim at the same time.
Six-month delay after legal advice
One of the most important findings concerned a consultation with lawyers on 7 September 2022. According to Hoflinger’s own timeline, he described having “a full consultation session with lawyers to get directions on the steps I can take”.
The court noted that despite receiving legal advice, he waited another six months before referring the dispute to the CCMA. “There is no clear explanation for that six-month delay,” said the judge.
Judge questions reasons for delay
The judgment was most critical when discussing Hoflinger’s conduct as a senior manager. Judge Oosthuizen said it was “inconceivable” that a senior manager would not know that steps could be taken if he believed he had been coerced into signing an agreement, or at least seek advice about his rights.
The judge also pointed out that the only reasonable explanation in the documents was that Hoflinger appeared to have waited until he had received all payments due under the termination agreement before starting legal proceedings.
“That kind of opportunistic manoeuvring cannot be an acceptable explanation for a delay,” said the court. The judgment also noted that the doctrine of election means a party will be held to an agreement if they accept its benefits and later try to challenge it.
Prospects of success were also weak
Although the delay was the main issue, the court also agreed with the commissioner that Hoflinger’s chances of success were poor.
The judge said the complaint appeared to be that Hoflinger was bullied into signing a severance agreement, and it was hard to see how that complaint fit within the legal definition of an unfair labour practice under the Labour Relations Act.
The court also observed that Hoflinger had not tried to withdraw from the agreement and had not shown any financial loss that could support a damages claim.
Review application dismissed with costs
Because this was a review, not a fresh condonation application, Hoflinger had to show that the commissioner’s refusal was so unreasonable that no other reasonable commissioner would have made the same decision.
Judge Oosthuizen found that Hoflinger did not meet that threshold. “The applicant has not provided facts showing that the Commissioner’s award failed to meet the reasonableness threshold,” said the court.
The review application was dismissed with costs, including the expenses from the hearing on 5 and 6 November 2025.
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