Category: Prescription

PRESCRIPTION OF LABOUR DISPUTES: THE LAW

Prescription entails the extinction of a claim or a debt through the lapse of a predetermined time period.[i] This is what is referred to as extinctive prescription.[ii] Extinctive prescription is an area of law that has survived the journey from Roman law to contemporary Zimbabwean law. The net effect of prescription is that once a certain time period elapses, a claim ceases to exist or in other words, a claim is extinguished. Serious consequences thus flow from extinctive prescription.

Prescription entails the extinction of a claim or a debt through the lapse of a predetermined time period.[i] This is what is referred to as extinctive prescription.[ii] Extinctive prescription is an area of law that has survived the journey from Roman law to contemporary Zimbabwean law. The net effect of prescription is that once a certain time period elapses, a claim ceases to exist or in other words, a claim is extinguished.[iii] Serious consequences thus flow from extinctive prescription.

Labour Act (Chap 28.01)

The Labour Act position is that all labour disputes should be entertained in a judicial forum within a period of two years of their occurrence.[iv] This is the general rule. As an exception to this general rule, the Act provides that a dispute will not prescribe if it “is continuing at the time it is brought to the attention of a labour officer”.[v] These are the fundamental provisions in the Labour Act in as far as prescription of labour disputes in is concerned.

It is argued that the Labour Act provisions can be fully understood if the provisions in the prescription act are also juxtaposed. In this regard, the provisions in the Prescription Act are discussed below.

Prescription Act (Chap 8.11)

The Prescription Act enshrines the law of prescription and applies to all debts or claims provided that its provisions are consistent with Acts such as the Labour Act.[vi] The act provides for prescription periods for civil claims  (3 years), 30 years in the instance of debts secured by a mortgage bond and 15 years for debts owed to the state e.t.c.[vii]

The act has provisions which state when the prescription starts to run  [viii] when the prescription is deemed to be delayed,[ix] and when it is deemed to have been interrupted.[x] These provisions apply to labour disputes as well. The Labour act doesn’t provide any alternative provisions for the specific matters mentioned above. The prescription act is thus authority for the delay and interruption of prescription.

When prescription begins to run

In terms of the Labour Act, the two-year prescription period begins to run from the moment the act forming the subject of the unfair labour practise or dispute arises,[xi] or when the party referring the dispute became aware of the dispute or unfair labour practice.[xii] These provisions in the Labour Act are a mirror image of the provisions in the Prescription Act.[xiii] The most important aspect is that prescription runs the moment a dispute arises or is known by the aggrieved party. It follows therefore that if a dispute is present and the other party is not aware prescription does not run. Prescription will, in such circumstances start to run from the moment the dispute is known in terms of the identity of the debtor and the facts surrounding the dispute.[xiv]

Completion of prescription delayed

Circumstances may require that the completion of prescription be delayed even though it had been running for some time.[xv] In these circumstances, the completion of the period of prescription is paused subject to a continuation following cessation of the special circumstances.[xvi] These special circumstances prevent a litigant from enforcing his or her claim.

When a creditor is insane, is a minor or is under curatorship the completion of prescription is delayed.[xvii] Other circumstances include when a debtor is outside Zimbabwe[xviii] as well as when either the debtor or creditor is deceased and an executor of the estate is still to be appointed.[xix] One who alleges the presence of these special circumstances is also obliged to provide the proof thereof. Courts will not readily accept that prescription had been delayed without the essential proof.

Interruption of prescription

Interruption entails a situation where prescription stops completely and has to run afresh when circumstances demand.[xx] Situations which may demand interruption of prescription include acknowledgement of liability by a debtor,[xxi] service of a debtor of any process emanating from a court,[xxii] and when a creditor does not prosecute his or her claim to final judgement.[xxiii] The list of circumstances provided by the Prescription Act seems to be a closed list in terms of which any other circumstances other than those mentioned in the act will not be accepted for purposes of interrupting prescription.

Conclusion

It has been shown that the law relating to the prescription of labour disputes is found primarily in the Labour Act and the Prescription act. The Prescription Act contains an elaboration of the law on prescription. It has provisions that give content to the provisions in the Labour Act. Practitioners dealing with litigation in labour law have a duty to fully appreciate the provisions in both acts.

The provisions in the prescription act are crucial in as far as they point out circumstances that may lead to the delay in the completion of prescription as well as the interruption of the prescription. The far-reaching consequences of prescription demand that one is fully vested with its principles before entertaining a dispute.

References

[i]               Prescription Act (Chapter 8:11), Section 14(1).

[ii]               Hutchison D The Law of Contract in South Africa 3rd (2017 Oxford Univ Press) 15.4.4.

[iii]              Hutchison D The Law of Contract in South Africa 3rd (2017 Oxford Univ Press) 15.4.4.

[iv]              Labour Act, section 94 (1).

[v]               Labour Act, section 94 (2).

[vi]              Prescription Act (Chapter 8:11), Section 14(13).

[vii]             Prescription Act (Chapter 8:11), Section 14(15).

[viii]             Prescription Act (Chapter 8:11), Section 14(16).

[ix]              Prescription Act (Chapter 8:11), Section 14(17).

[x]               Prescription Act (Chapter 8:11), Section 14(18).

[xi]              Labour Act, section 94 (3)(a).

[xii]             Labour Act, section 94 (3)(b).

[xiii]             Prescription Act (Chapter 8:11), Section 14(16)(1).

[xiv]             Prescription Act (Chapter 8:11), Section 14(16)(3).

[xv]             Prescription Act (Chapter 8:11), Section 14(17).

[xvi]             Hutchison D The Law of Contract in South Africa 3rd (2017 Oxford Univ Press) 15.4.4.4.

[xvii]            Prescription Act (Chapter 8:11), Section 14(17)(a).

[xviii]           Prescription Act (Chapter 8:11), Section 14(17)(c).

[xix]             Prescription Act (Chapter 8:11), Section 14(17)(e).

[xx]             Hutchison D The Law of Contract in South Africa 3rd (2017 Oxford Univ Press) 15.4.3.

[xxi]             Prescription Act (Chapter 8:11), Section 14(19)(e).

[xxii]            Prescription Act (Chapter 8:11), Section 14(19)(e).

[xxiii]           Prescription Act (Chapter 8:11), Section 14(19)(e).

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PRESCRIPTION OF LABOUR DISPUTES: CASE LAW

The purpose of this article is to demonstrate the far-reaching consequences that are apparent went a matter has prescribed. A court will not have an opportunity to go into the merits of the matter. In most cases, the prescription is raised as a preliminary point (in limine) to the extent that an inquiry into the merits will not be warranted.

Introduction

This section deals with a review of cases that dealt with prescription of labour disputes. To fully understand this section one needs to go through the law on prescription as outlined in my previous article. In all the cases discussed herein, the claimants lost their matters simply because they delayed in lodging their claims and as a result, the claims had prescribed. The cases indicate the extent to which prescription can have far-reaching consequences to the detriment of those who lodge their claims out of time.

Chengetai Mapundu v ZIMRA[i]

In August 2007 the respondent stopped paying the claimants salary. 4 years later, the claimant brought the matter to the attention of a labour officer. The court remarked that the matter had prescribed. It noted that the claimant could not be saved by exceptions in section 94 of the Labour Act as the dispute could not be deemed to be continuing at the time it was reffered to the labour officer. It then decisively remarked as:

“I associate myself with the submissions made by Respondent’s Officer on this point. He relied on the case of City of Gweru v Munyari SC 15/05 where the Honourable Justice Ziyambi J.A. at p.5 stated that,

“The Labour Court got it wrong. It had no jurisdiction to entertain the matter which had long prescribed.”

In other words, once a matter prescribes, that is the end of the matter. It

cannot be revived in a judicial forum. On that basis, the appeal must fail.”

This case is important in as far as it shows that once a case had prescribed it cannot be revived in a judicial forum.

Jeffrey Dube N.O v Casmyn Mining t/a Turk Mine[ii]

Pursuant to special measures to avoid retrenchment in terms of section 12 of the Labour Act, the employer and employees agreed on a 25% reduction in the employee’s salaries in 2013. In 2014 the employees challenged the agreement at the High Court. They also brought the matter before the Labour Court. At the Labour Court (LC), the matter was dismissed because it was pending before the High Court (HC). Following the dismissal of the matter by the LC, the respondents proceeded to withdraw the HC matter. In September 2016 the same matter was referred to the NEC, de novo.

The LC accepted that the matter had indeed prescribed. The argument that the matter was continuing because the employees were still suffering from the effects of the reduction did not exonerate them. The court thus ruled:

“Equally so, an employee who decides not to act until the unfair labour practise has prescribed cannot possibly argue that because they are still being affected, that unfair labour practise should be deemed as “continuing”. Such an interpretation would result in rendering s94(1) redundant and superfluous”.

In essence, the fact that an individual is still suffering from the effects of the alleged unfair labour practise does not mean that the dispute should be deemed to be continuing. This is an important interpretation that the court came up with. The fact that the employees wasted time in forum shopping did not interrupt the prescription.

 Forbes Chitsenga v Total Mining Company and Others [iii]

The claimants in this instance alleged that they worked in acting positions from the year  2012  and were not paid their acting allowances. In 2017 they claimed alleged unfair retrenchment and included the issue of non-payment of acting allowances as part of the claim. At the NEC, the employees lost the retrenchment claim but won the claim involving the non-payment of their acting allowances.

At the LC, it was realised that the only flaw in the claim for acting allowance was that the claim was coming to the attention of the court after 2 years had elapsed. The dispute could not also be deemed to have been continuing owing to the fact that the employees had signed new contracts. In terms of these contracts, their acting capacities fell away as they were appointed into substantive positions. The matter was dismissed to the detriment of the claimants.

Conclusion

The purpose of this article is to demonstrate the far-reaching consequences that are apparent went a matter has prescribed. A court will not have an opportunity to go into the merits of the matter. In most cases, the prescription is raised as a preliminary point (in limine) to the extent that an inquiry into the merits will not be warranted. Chengetai Mapundu v ZIMRA clearly illustrates that that once a matter prescribes, that the end of it. Forbes Chitsenga v Total Mining Company and Others as well as Jeffrey Dube N.O v Casmyn Mining t/a Turk Mine can best be understood when one reads the Prescription Act especially provisions that relate to the delay and interruption of prescription. In these cases, the claimants time was wasted when they were forum shopping which exercise did not interrupt prescription. In all cases, the important lesson is that labour matters should be handled as a matter of agility.

References

[i]               LC/H/41/13

[ii]               LC/MT/60/18

[iii]              LC/B/15/19

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