Referrals pertaining to Labour litigation:
On the 16th of February 2018, Consolidated Employers Organisation posted an article on its blog which concerned the Prescription Act and its effect on CCMA referrals and arbitration awards. When referring to cases being referred to the CCMA, it was commented:
“In Fawu obo Gaoshubelwe and Others v Pieman’s Pantry (Pty) Ltd (2017) 38 ILJ 132 (LAC) it was concluded that the Prescription Act does indeed apply to all litigations under the Labour Relations Act as amended 66 of 1995, not least of all litigations prosecuted in terms of Section 191 of the LRA.
Therefore, potential claims or allegations which relates to an employee’s alleged unfair dismissal against an employer, will for all practical and legal purposes prescribe after a three (3) year period in terms Section 11(d) of the Prescription Act 68 of 1969.”
Soon thereafter, the position in law changed with the Constitutional Court delivering a judgment on the 20th of March 2018 in contrast to what the Labour Appeal Court initially ruled. Being unsatisfied with the court a quo’s judgement, FAWU lodged an appeal with the Constitutional Court upholding the appeal: “In a separate judgment, Zondi AJ (Mogoeng CJ, Zondo DCJ and Jafta J concurring), found that the provisions of s 16(1) of the Prescription Act were inconsistent with s 191 of the LRA and pointed out material differences between the two statutes. In the light of these inconsistencies, he concluded that the Prescription Act did not apply to litigation under s 191 of the LRA. In a separate concurring judgment, Zondo DJP (Mogoeng CJ, Jafta J and Zondi AJ concurring), found that the Prescription Act did not apply to unfair dismissal disputes under the LRA as such disputes were only subject to the period provided for in the dispute resolution system of the LRA, which was a self-standing system carefully crafted to strike a fair balance between the interests of workers and those of employers. Bringing the Prescription Act into the LRA dispute resolution system would undermine this purpose and unduly tilt the balance in favour of employers to the detriment of workers.”
Article updated by: Noel Strating
CEO Dispute Resolution Official – Bloemfontein