PRESCRIPTION OF LABOUR DISPUTES: CASE LAW

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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