Unfair dismissal claims: Application of Prescription Act?

3 Comments

1. 

   GilesFiles on September 30, 2016 at 9:42 am

   Comment by Darcy du Toit in IR Network published by LexisNexis

   Section 1(d)(iv) of the LRA versus section 39(2) of the Constitution

   In Myathaza v Johannesburg Metropolitan Bus Service the dispute was about an arbitration award ordering the employee’s reinstatement, issued on 17 September 2009. The employer took the award on review but, though all papers had been filed, did not set the matter down for hearing. In August 2013 the employee applied to have the award made an order of court, only to be met with the defence that the award had prescribed eleven months earlier. The Labour Appeal Court agreed.
   . . . . .
   In all these cases, in other words, the Labour Appeal Court found it consistent with the purposes of the LRA that the employees should be precluded from pursuing or enforcing awards in their favour and that employers should be able to rely on the Prescription Act to avoid compliance, regardless of whether they had any substantive defence to the employees’ claims.
   . . . . .
   It is therefore remarkable that no reference is found in the Myathaza judgment to the constitutional implications of the interpretation of the Prescription Act argued for by the employers or its impact on the employees’ fundamental rights which the LRA seeks to give effect to. Much the same, it will be seen, can be said of the judgment in Pieman’s Pantry, where the approach in Myathaza was endorsed.

   But before the latter judgment was written, the decision of the Constitutional Court in Makate v Vodacom 2016 (6) BCLR 709 (CC) was handed down, effectively refuting the two pillars on which the LAC’s judgment in Myathaza had been based.
   The LAC had arrived at its conclusion by finding that the term “debt” in the Prescription Act “should be given a broad and general meaning” and, therefore, should include “any arbitration award that creates an obligation to pay or render to another, or to do something, or to refrain from doing something” (paras 35, 41).
   . . . . .
   It is difficult to see how the interests of justice are served by depriving employees of remedies due to delays caused in the first place by legal proceedings launched by employers. And the difficulty of litigating after many years, when witnesses’ memories have faded, may equally arise where review proceedings result in a rehearing of a matter, but are in this case not seen as justification for preventing a claim from being heard.
   . . . . .
   Judging by its decision in Pieman’s Pantry, however, it would seem that the LAC is – to say the least – reluctant to reconsider its position that “all litigations under the LRA”, without exception, create debts which are subject to prescription. It may well be necessary for the Constitutional Court to apply its mind to this proposition, and the implications it has for unrepresented or poorly resourced litigants, in order to determine whether it passes muster in terms of section 39(2) of the Constitution.

2. 

   GilesFiles on November 9, 2016 at 5:51 pm

   Reported
   [2016] 12 BLLR 1175; (2017) 38 ILJ 132 (LAC)
   Headnote
   Labour Relations Act, 1995 – Prescription of claims under – Employees referring unfair dismissal dispute for adjudication by Labour Court more than three years after dismissal – Claim prescribed.

3. 

   GilesFiles on February 27, 2017 at 9:46 am

   Case dismissed – CCT236/16
   Leave to appeal to the Constitutional Court refused on 22 February 2017