What is prescription in labour cases?

Davies Ndumiso Sibanda, Labour Matters
MANY workers try to bring up cases that happened a long time ago arguing that they were unfairly treated only to lose these cases with costs when the courts rule that the matters have prescribed. 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.

Simply put, any matter that is more than two years old is prescribed and the courts cannot entertain it. In the matter J. Dube vs Casymyn Mining t/a Turk Mine Judgement No. LC/MT/60/18, Justice Kabasa dealt in detail with how the prescription provisions should be read.

Workers and the employer had a 25% wage deduction dispute that arose in 2013 and the workers brought the dispute to the Labour Office for conciliation in 2016 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 and sought to have his draft order on the matter confirmed by the Labour Court. The Labour Court declined to confirm the order and dismissed the matter with costs.

The Labour Court looked at the provisions of section 94(2) and ruled on the meaning of continuing unfair labour practice. The Judge said, “The next question therefore is whether the unfair labour practice was continuing as envisaged by S94(2) as only then would the designated agent have jurisdiction to entertain the matter.”

He reasoned that the employees are still affected by that action and S2A of the Act gives the purpose as “to advance social justice and democracy in the workplace”.

S94(1) is a provision in the Labour Act and was included with the legislature fully aware of S2A. S2A is therefore not to be interpreted as a blank cheque authorising the interpretation of a clear provision into one which is at variance with the clear grammatical meaning, all in the name of social justice and democracy in the workplace.

Equally so, an employee who decides not to act until the unfair labour practice has prescribed, cannot possibly argue that because they are still being affected, that unactioned unfair labour practice should therefore be deemed as “continuing”. Such an interpretation would result in rendering S94(1) redundant and superfluous.

As Kachambwa J stated in RioZim (Pvt) Ltd case (supra) an employee who regards himself as having been unfairly dismissed in 2000, can still bring an action 10 years later because that unfair dismissal will still be affecting him or her.

It is my respectful view that the “continuing”in S94(2) is not to be interpreted as “for as long as it has not been addressed”.

Such an interpretation would mean that an employee can refer a claim of unpaid salaries dating back to over five or more years when such an employee can and should refer the unfair labour practice within two years from the date it first arises.

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 S94(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 should act without delay and ensure that within two years of the alleged unfair labour practice, one has his case before the appropriate labour tribunal.

Yes arguments can be raised that one can apply for condonation, that is not easy for prescribed cases unless there are good reasons for the delay and very good prospects of success. Further, these days courts will order costs which could leave someone destitute.

Davies NdumisoSibanda can be contacted on: Email: [email protected].