“In terms of ss 16 (1) and (3) of the Prescription Act [Chapter 8:11] prescription shall commence to run as soon as a debt is due. Moreover, a debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises: provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.”
Introduction
The matter deals with, amongst other pertinent legal issues, the prescription of facts leading to a charge. The judgement shows that the prescription of a charge starts to run from the time the employer becomes aware of the facts forming the charge. If an employer arraigns an employee before a disciplinary hearing within a period of two years after the offence came to light, prescription cannot be successfully pleaded.
Facts
The appellant was employed by the Respondent company in 1997. He was an Estates Coffee Manager. In 2000 he became the Agricultural Manager. In 2007 he became General Manager of Agriculture and in 2010, he was appointed Director. In 2011 he was charged with gross incompetence and negligence in the performance of his work and violating the respondent’s Anti-Sexual Harassment policy. He was accused of having improper relations with two junior members of staff. He was eventually dismissed, and he unsuccessfully appealed to the Labour Court. The outcome of the Labour Court appeal resulted in Supreme Court dispute.
The Law
Constitution of the Disciplinary Committee
The employee’s first ground of appeal was that the committee that presided over the hearing was not properly constituted. This was so because there was no “fellow employee” present in the hearing. Unfortunately for the appellant employee, this argument had not been raised in the initial disciplinary hearing. At the Labour Court, the employee could not explain why this was so. As a result, the Supreme Court argued:
“A party cannot abandon an argument, or like in this case, a ground of appeal, in a lower court and hope to validly resuscitate the same ground on appeal to a superior court”.
Prescription of the charges
One of the charges laid against the employee related to the way he handled the planting of macadamia. The planting of the macadamia seedlings was done in 2007 and the employee was charged in October 2011. The appellant employee contended that the charges had prescribed. The court disagreed. It noted that prescription applies when a creditor becomes fully aware of the identity of the debtor and the facts from which the debt arises. In the absence of such, the prescription does not run. The court emphasised:
“In terms of ss 16 (1) and (3) of the Prescription Act [Chapter 8:11] prescription shall commence to run as soon as a debt is due. Moreover, a debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises: provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.”
The above paragraph shows that prescription begins when an employer is fully aware of the offence. At times investigations take time to conclude like what happened in this case, and until the employer has the full information, the prescription does not begin.
Sexual Misconduct
The employee averred that this charge had also been prescribed having occurred since 2009 but it was the courts finding that the issue had been brought to the employer’s attention in 2011. The prescription argument failed.
Regarding the merits of the charges, the Supreme Court concluded that all had been proven beyond a reasonable doubt. It concluded:
“Labour matters being civil in nature, all that had to be proved in casu was whether or not, on a balance of probabilities, the respondent had proved the charges in question, against the appellant. I have found that the respondent did so.”
Conclusion
The appeal was dismissed.
Own Comment
This case, in our view clearly demonstrates two things. First, disciplinary charges do prescribe. If an employer knows of an offence committed by an employee and does nothing to charge and discipline the employee prescription starts to run. If under those circumstances, two years elapse, the offence prescribes and cannot be raised in a judicial forum. If on the contrary as what happened in Browne v Tanganda Tea Company SC 22-16 the employer is not aware of the offence, the prescription does not run.
The case also demonstrates the importance of correctly following the disciplinary processes. The Supreme Court commended the fact that the hearing was conducted as if it was a full trial before a judge. There were no procedural irregularities in the process.