CONSTITUTIONAL COURT OF SOUTH AFRICA
Food and Allied Workers’ Union obo J Gaoshubelwe & Others v Piemans Pantry (Pty) Ltd
CCT 236/2016 Date of hearing: 3 August 2017 ________________________________________________________________________
MEDIA SUMMARY
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The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 3 August 2017, at 10h00, the Constitutional Court will hear an application for leave to appeal against the judgment and order of the Labour Appeal Court (LAC) in terms of which it found Food and Allied Workers’ Union’s (FAWU) unfair dismissal claim against Piemans Pantry (Pty) Ltd (Piemans) to have prescribed. The LAC reached this conclusion on the basis of the finding that the Prescription Act 68 of 1969 (Prescription Act), which provides for a three year prescription period, applies to claims for unfair dismissals under section 191 of the Labour Relations Act 66 of 1995 (LRA), and that referral of a dispute to conciliation does not interrupt prescription.
During June 2001, FAWU and Piemans were engaged in wage negotiations which ultimately resulted in what Piemans alleges was an unprotected strike as per the provisions of the LRA. On 1 August 2001, FAWU’s members were dismissed for their alleged participation in the unprotected strike, after a disciplinary hearing was convened.
Upon the dismissal of its members, FAWU referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of section 191(1) of the LRA, on 7 August 2001. On 3 September 2001, the CCMA certified that the dispute remained unresolved. Thereafter, FAWU referred the matter to arbitration by the CCMA. On 15 March 2002, the CCMA ruled that it did not have jurisdiction to arbitrate the dispute because the dismissal was related to participation in a strike that did not comply with the provisions of Chapter IV of the LRA. FAWU subsequently launched a review application which was dismissed by the Labour Court on 9 December 2003. On 16 March 2005, FAWU referred the claim to the Labour Court (LC) for
adjudication in terms of section 191(5)(b) of the LRA. Piemans in response pleaded that the claim had prescribed and contended that the statement of claim had been delivered late without a “proper” application for condonation. The LC subsequently granted FAWU’s application for condonation of the late delivery of its statement of claim on 22 June 2008 and dismissed Pieman’s plea of prescription. On 24 June 2009, the parties agreed to vary the LC’s order of 22 June 2008 for purposes of removing the order dismissing Pieman’s plea of prescription and to provide that the issue pertaining to prescription would be determined when the matter proceeded to trial. The LC subsequently upheld the plea of prescription on 15 August 2014. FAWU then appealed to the LAC against the LC’s judgment of 15 August 2014.
In the LC, FAWU challenged the dismissal of its members on the basis that the dismissal was substantially unfair and procedurally unfair. Piemans objected to FAWU’s claims by contending, amongst other things, that FAWU’s claim had prescribed in terms of the Prescription Act. The LC held that the Prescription Act applies to labour disputes;
particularly unfair dismissal claims. The LC further rejected FAWU’s suggestion that the referral of a dispute for conciliation to the CCMA interrupted the running of prescription and, as a result, held that FAWU’s claim had indeed prescribed.
The LAC dealt with four points of contention which were raised by FAWU. First, the LAC considered FAWU’s argument that in the light of the fact that the interpretation of statues must be driven by section 39(2) of the Constitution, which obliges a court to harmonise existing law with constitutional values, the LAC’s decision in Myathaza v Johannesburg Metropolitan Bus Service (Soc) Limited t/a Metrobus and Others (Myathaza) was wrong insofar as it failed to comply with this obligation. The LAC rejected FAWU’s contention on the ground that there was no support for it to come to the conclusion that the decision in Myathaza was wrong. As a result, the LAC concluded that it was bound by its earlier decision in Myathaza.
Second, the LAC considered FAWU’s argument that to apply the Prescription Act to labour disputes would undermine the objectives of labour peace aimed to be fulfilled through the LRA’s specific remedies and procedures. The LAC agreed that the LRA scheme has created a set of rights which are uncommon and unknown to our common law. However, it could not agree with the argument that public interest considerations which seek to promote the advancement of labour peace imply that the extinction of a labour dispute by prescription is contrary to the aims and purposes of the LRA. The LAC concluded that, without a constitutional challenge to the prescription, the policy considerations raised by FAWU were irrelevant to determining whether the Prescription Act applied.
Third, the LAC considered FAWU’s argument that the litigation regime under the LRA is inconsistent with the Prescription Act, as contemplated in section 16(1) of the Prescription Act. The LAC held that the crucial question is whether the provisions of the LRA and the Prescription Act give rise to a functional inconsistency. If the two are capable of being reconciled, there is no inconsistency. Unlike the Prescription Act, section 191 does not extinguish a claim but rather regulates the process whereby
proceedings are instituted. Accordingly, the LAC held that the two Acts are compatible and therefore reconcilable.
Fourth, the LAC dealt with FAWU’s contention that a claim for unfair dismissal does not constitute a “debt” for the purposes of the Prescription Act. The LAC concluded that the
“debt’ in this instance could be described as the workers “claim of right”, namely that their employment was terminated unfairly and that the unfairness should be remedied.
As a result, the LAC concluded that the Prescription Act applied to all litigation proceedings under the LRA, specifically unfair dismissal referrals.
In deciding whether FAWU’s claim had prescribed, the LAC held that FAWU’s argument that the debt, which is the right not to be unfairly dismissed, arose upon dismissal and as such prescription began to run upon the dismissal of the employees was correct. However the LAC rejected the contention that the referral to the CCMA is a necessary “process” to interrupt prescription was held to be incorrect. Instead, the LAC held that a referral to the CCMA is merely a functional requirement and is a condition precedent to approaching the LC. The LAC concluded that FAWU’s claim had indeed prescribed as prescription begun running from the date of dismissal.
In this Court, FAWU makes four main submissions: first, that the Prescription Act does not apply to unfair dismissal disputes in terms of section 191 of the LRA; second, that prescription was interrupted by the referral of the dispute to the CCMA; third, that a purposive interpretation of the relevant provisions, read with section 39(2) of the Constitution, requires that the Prescription Act not apply to claims under section 191 of the LRA; and fourth, that this Court’s decisions in Myathaza and Mogaila v Coca Fortune (Pty) Ltd mean that the appeal must succeed. Piemans, in turn, makes three principal submissions: first, that a claim for unfair dismissal under the LRA is a “debt”
for the purposes of the Prescription Act; second, that there is no inconsistency between the Prescription Act and the LRA dispute resolution procedures; and third, that the claim in this case has prescribed as the referral to conciliation did not interrupt prescription.
The Constitutional Court is asked to determine which of these opposing contentions are correct.
