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IN THE CONSTITUTIONAL COURT OF THE REPUBLIC OF SOUTH AFRICA (Held at Johannesburg)
CC Case No: CCT 236 / 16 LAC Case no: JA 20 / 15
In the matter between:
FAWU obo JOB GAOSHUBELWE & OTHERS Applicants and
PIEMANS PANTRY (PTY) LTD Respondent
RESPONDENT’S PRACTICE NOTE
1. Appearance for the respondent
Sean Snyman Tel: (011) 532 8803 Cell: 082 442 7746
2. Nature of proceedings
The applicants filed an application for leave to appeal against a judgment of the Labour Appeal Court in Food and Allied Workers Union on behalf of Gaoshubelwe and Others v Pieman’s Pantry (Pty) Ltd (2017) 38 ILJ 132 (LAC). The Labour Appeal Court held that the Prescription Act 68 of 1969 applied to claims for unfair dismissal under the Labour Relations Act 66 of 1995, that such claims would constitute a ‘debt’ under the Prescription Act that prescribes in three years, and that the running of prescription is only interrupted by the filing of a statement of claim with the Labour Court.
Consequently, the Labour Appeal Court dismissed the appeal of the
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applicants.
3. Issues to be argued
The issues on appeal succinctly are:
The application of the Prescription Act to the dispute resolution proceedings under the LRA.
Whether an unfair dismissal claim brought under the LRA constitutes a
‘debt’ for the purposes of the Prescription Act.
Whether there is an inconsistency between the dispute resolution process under the LRA and the provisions of the Prescription Act, as contemplated by Section 16 of the Prescription Act.
Whether, and should it be held that the Prescription Act does find application, the applicants’ referral of the dispute to conciliation interrupted the running prescription.
4. Portion of record necessary for determining the matter
The respondent is of the view that considering that this matter turns on legal point(s) alone, and the factual matrix being common cause, the content of the record is of very little relevance in deciding this matter.
5. Duration of argument
1(one) hour by respondent.
6. Summary of argument
Summary of the argument of the respondent:
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The application of the Prescription Act is consistent with processes, and objectives, of the dispute resolution processes under the LRA.
The Prescription Act supplements the LRA, and the two statutes are complimentary.
The time limits that apply to dispute resolution under the LRA are not in any way subverted by the application of the Prescription Act. The time limits under the LRA are time bars that do not provide for claims expiring, but affords the Court or an arbitrator the power to end a claim where it has not been expeditiously prosecuted and if good cause has not been shown for failing to comply with this time limit. But the time period prescribed by the Prescription Act results in the extinguishing of the claim if not adhered to, and the showing of any good cause is not competent.
All an employee party must do is to refer an unfair dismissal claim for arbitration or adjudication within 90 days from the date upon which the matter remains unresolved, as contemplated by Section 191(5) of the LRA. The filing of this referral will in itself serve as process to interrupt prescription. If this referral is filed prior to the expiry of three years from the date as contemplated by Section 191(5), but after the 90 day time bar, the claim has not been extinguished, but good cause must still be shown to an arbitrator or judge to allow it to continue. However, if this referral is filed after the expiry of three years, then it interrupts prescription too late, the claim has expired, and the showing of good cause is no longer permissible.
A claim for unfair dismissal and the consequent relief of reinstatement, reemployment or compensation constitutes a right / positive obligation, which is a debt as contemplated by the Prescription Act.
This debt arises when the claim becomes enforceable. This happens
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once the claim has remained unresolved following conciliation at the CCMA or bargaining council. Prescription accordingly starts to rum from that date and is only interrupted by a referral to arbitration of a statement of claim to the Labour Court, depending on the nature of the dismissal dispute.
A referral of the dispute to conciliation is not process that interrupts prescription, because it the dispute cannot be prosecuted to final outcome and relief in terms of that process. Conciliation is only part of the process to perfect the claim so that it can be prosecuted to finality.
The process that interrupts prescription is that which refers the unfair dismissal dispute to either adjudication, or arbitration.
7. List of authorities
Attached
