Pity the labourer and the law

2014-08-01 15:08

Given the uncertainty surrounding whether an arbitrator's award prescribes if not made an order of court within four years,wisdom dictates that you make that award an order of court. Finish and klaar!

Its trite that the LRA does not prescribe any time periods for which arbitration awards remain enforceable.

And yes, it is silent in regard to the time frames relating to the enforcement of arbitration awards by means of proceedings in terms of section 158(1)(c) and certification under section 143(3) of the LRA.

Thus it was left to often uninstructed or uneducated, dismissed employees in possession of favourable awards to ensure that they either approached a court or the CCMA in terms of the LRA, and hopefully timeously so. Where employees failed to act on those favourable awards, the risk has always been there that their claims may be deemed to have prescribed in the light of the LRA being equally silent on the applicability of the provisions of the Prescription Act.

This lacuna in the Act is, I understand, to be addressed by the pending amendments to section 145[4] of the LRA, which invokes the interruption of the running of prescription in terms of the Prescription Act.

In the meantime, as Johann Scheepers power point presentation showed, there is divided opinion as to whether the provisions of the Prescription Act should be applicable to arbitration awards or not.

In terms of the Prescription Act, 68 of 1969 (the Act), a debt is extinguished (prescribes) after the relevant period provided for by law for that debt.

On one side

In Mpanzama v Fidelity Guards Holdings (Pty) Ltd, the Court held that the provisions of thePrescription Act apply to the provisions of the LRA, and arbitration awards had the status of a ‘debt’. Thus the principles applicable to a debt also apply to an arbitration award. This approach was followed by the Honourable Molahlehi J in PSA & another v CCMA & others, who having referred to Mpanzama with approval also held that arbitration awards are considered "debts" in terms of the Act, and prescribe after three years.

There are other judgments of this that have followed a similar approach.

On the other side of the divide

We have decisions which hold the view that the Prescription Act finds no application in awards issued by the CCMA or Bargaining Councils.

In Cellucity (Pty) v CWU OBO Peters and also in Coetzee & 48 others v The Member of the Executive Council of the Provincial Government & Others, Rabkin-Naicker J righteously held in both matters that the Prescription Act was incompatible with the architecture of the LRA. The rationale behind this view was inter alia that there was a strong case on public policy grounds to find that prescription does not apply to unfair dismissal claims under the LRA, and that the application of the Prescription Act to LRA claims would create inequalities between litigants using different routes for their disputes and furthermore will be unworkable where disputes move between tribunal and the Court and vice versa.

Chetty AJ (as he then was) in Circuit Breakers Industries v NUMSA & others was constrained to agree that an award of compensation constituted a ‘debt’ for the purposes of the Prescription Act.

He however held a different view when it came to an award of reinstatement, on the basis that reinstatement is the primary remedy in the case of an unfair dismissal, and it could have never been the intention of the legislature to make the remedy of reinstatement open to being up-ended by a plea of prescription.

The adverse consequences of the application of the Prescription Act to arbitration awards have been eloquently addressed by Rabkin-Naicker J in Cellucity (Pty) (Ltd) and also in Coetzee & 48 others.

Clearly, the Prescription Act is incompatible with public policy, and surprisingly a purposive interpretation would have somewhat ameliorated the problem for it creates unintended and iniquitous consequences for vulnerable employees in possession of favourable awards.

Given the fact that the finalisation of matters inCourt may be delayed for a variety of reasons, the application of the Prescription Act affords opportunities to employers who seek to frustrate employees in possession of favourable awards by launching review applications even in circumstances where they are clearly unwarranted and have no prospects of success.

South African Transport And Allied Workers Union and Another v Scopeful 21 t/a Maluti Bus Service [2014] ZALCJHB 290 (30 July 2014) is a case in point.

In this case, the Respondent upon receipt of an adverse award had timeously filed an application to review that award. Due to no fault on the part of either party, the construction of the record of arbitration proceedings took longer than necessary, but that record was ultimately filed some two years after the review application was filed. The employer even went to the extent of obtaining a set-down date. Having obtained a date, the employer had 13 days before the set-down date, withdrawn the application.

In the learned judge's view there was a fine line between the right of a party to approach the Court with a review application, and a clear abuse of that right with the sole purpose of frustrating an employee in possession of a favourable award (italicsed for emphasis).

This case represents an abuse of that right, which in the learned judge's words and " completely (went) against the grain of fair labour practices and fair litigation." (para [16])

Inasmuch as the conduct of the employer in this case (i.e. of instituting and withdrawing review proceedings three years later) caused revulsion and should be viewed as repugnant to fair labour practices and be frowned upon, the employee, duly assisted by his attorneys of record was no less blameworthy.

The judge warned that lawyers who appeared regularly in a labour court should be aware that matters may take longer than anticipated.

Be that as it may, and with that knowledge, employees still fail to make a counter application in terms of section 158 (1) (c) of the LRA when opposing review applications.

Other than seeking this order, nothing prevents employees from approaching the CCMA in terms of the provisions of section 143 of the LRA application to seek certification of that award.

So, until the amendment comes into effect, make that award an order of court for the benefit of employees and avoid the injustice that are visited upon them.

Read this judgment for yourself at

http://www.saflii.org.za/za/cases/ZALCJHB/2014/290.html

Have a blessed life......

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