Online Reporter
Trust Maanda
Legal Position
UNLESS an employment dispute is referred for resolution to a labour officer within two years, it prescribes.
Prescription is simply a principle that a debt or action extinguished by expiry of time within which the claim for the debt or institution or action should have been made.
Prescription of disputes provisions are covered in Section 94 of the Labour Act Chapter 28:01 which reads: “(1)(1) Subject to subsection (2), no labour officer shall entertain any dispute or unfair labour practice unless—
(a) it is referred to him; or
(b) has otherwise come to his attention; within two years from the date when
the dispute or unfair labour practice first arose.
(2)Subsection(1) shall not apply to an unfair labour
practice which is continuing at the time it is referred to or comes to the attention of a labour officer.
(3)For the purpose of subsection(1),a dispute or
unfair labour practice shall be deemed to have first arisen on the date when—
(a) the acts or omissions forming the subject of the dispute or unfair labour practice first occurred; or
(b) the party wishing to refer the dispute or unfair labour practice to the labour officer first became aware of the acts or omissions referred to in paragraph(a),if such party cannot reasonably be expected to have known of such
acts or omissions at the date when they first occurred.”
This means that any matter that is not raised before the relevant authority for redress more than two years is prescribed and the cannot be entertained.
In the matter; J. Dube vs Casymyn Mining t/a Turk Mine Judgement No. LC/MT/60/18, Justice Kabasa dealt with a case where prescription was an issue.
The employer and employees were embroiled in a 25 percent wage deduction dispute that arose in 2013.
The workers brought the dispute to the Labour Office for conciliation in 2016. That was more than two years later.
The workers argued that the matter had not prescribed as the unfair labour practice was continuing in 2016 when the matter was reported to the Labour Officer.
The designated agent agreed with the workers, but the Labour Court declined to confirm the order and dismissed the matter with costs.
The reduction of salaries was done in 2013 and action could have been taken as at that date.
Seeking to do so in 2016 attracts the operation of Section 94(1), and the wording of that section clearly strips a labour officer/designated agent of jurisdiction to entertain it.
The case clearly shows that where one alleges unfair labour practice, he or she should act without delay, and ensure that within two years of the alleged unfair labour practice, one has his or her case before the appropriate labour tribunal.
Section 94(1) is a provision in the Labour Act and was included with the legislature fully aware of Section 2A.
If an unfair labour practice occurs, recourse against it must be immediately sought, and in any event not later than two years.
An employee who decides not to act until the unfair labour practice has prescribed, cannot possibly not seek redress thereafter.
An employee cannot, for example, refer a claim of unpaid salaries dating back to over five or more years when such an employee should have referred the unfair labour practice within two years from the date it first arises.
It is not easy to tell what the lawmakers were thinking when they limited the disputes to two years.
Ordinary prescription of debts is provided for in term of the Prescription Act. The two-year prescriptive period under Section 94(1) of the Labour Act has no bearing on any other contractual claims founded on, for example an acknowledgement debt even if it may be between the employer and employee. That provision is confined to claims or disputes that are subject to the exclusive governance of the Labour Act.
It is competent to sue a debtor on his admission of liability as set out in an acknowledgement of debt, without founding the action on the original transaction giving rise to that acknowledgement.
See Mahomed Adam (Edms) Beperk v Raubenheimer 1966 (3) SA 646 (TPD) and the authorities there cited.
Section 94 of the Labour Act does not operate to oust or override the periods of extinctive prescription applicable under the Prescription Act [Cap 8:11] in relation to the recovery of contractual debts in general.
The prescription of workplace disputes is in terms of the Labour Act.
It can only be surmised that the intention was so that labour disputes are settled as expeditiously as possible in order for there to be harmonious relationship between the employer and employee.
Section 94(2) provides an exception in that it states that even if the actions complained of occurred more than two years prior, the dispute is still considered not prescribed at the time it is referred to the hearing officer.
TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
