Legal Matters with Arthur Marara

There is one area of law that often confuses employees and some HR practitioners, that is the question of prescription of disputes.

If you are an employer and you are faced with such a claim check for such elementary issues. Once a claim has prescribed the law says that it cannot be heard because there are no rights that ensue after that.  Prescription by definition involves loss of rights at law as a result of a failure to take action over a period of time. Prescription in labour matters is regulated  by the Labour Act.

The purpose of prescription is to provide certainty, especially in the case of parties being sued, and to encourage members of the public to actively pursue debts rightfully owed. In other words if you do not use your rights, you lose them.
Section 94 of the Labour Act [Chapter 28:01] is settled on this point that;

“94 Prescription of disputes

(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.” (underlined for emphasis)

There are interesting points that arise from S94 of the Labour Act. It states what the Labour Officer can entertain. There has to be a dispute or unfair labour practice. That dispute or unfair labour practice has to reach him within a period of two years. It is not just two years, it is from the date when the dispute or unfair labour practice first arose.

The issue for determination when a dispute arises is the date when it first arose. Prescription begins to run from that particular period.

In the case of an unlawful termination of a contract of employment, the cause of action arises in terms of the law immediately on the unlawful termination of the contract of employment.

If an employee does not act within the period of two years, it is without doubt that the claim prescribes. This also means that the Claimant has no right of audience in these regards. In the case of Muwonde v Forestry Commission LC-MC-O3-2015, MANYANGADZE J provided a formulae for the pegging of prescription days;

“It is clear, from a reading of section 94 (1) that the period stipulated for referral of a matter to a labour officer is two years from the date when the unfair labour practice complained of arose i.e. from the date when the cause of action first arose”

The Supreme Court dealt with the issue of prescription decisively in City of Gweru v Munyari SC15/05

The main contention advanced by Mr Gijima for the appellant is that the learned President of the Labour Court erred in adjudicating upon an alleged unfair labour practice or dispute which had prescribed in terms of s 94 of the then Labour Relations Act.

The alleged unfair labour practice having occurred in 1994 was only referred to the Labour Relations Officer in 1998 long after the 180 days prescribed by s 94 of the Act had lapsed.

The appellant’s contention is of course correct.

The Labour Court got it wrong.   It had no jurisdiction to entertain the matter which had long prescribed.   On this ground the appeal succeeds.” (Emphasis)

The law is settled and the Claimant’s claim cannot surely succeed in the face of prescription.

There is usually an attempt by claimants to try and argue that the unfair practice is of a continuing nature. In Chengetai Mapundu v ZIMRA LC/H/41/13 the court held that the matter had prescribed. The exception provided for in terms of Section 94 could not protect them because their case did not meet the threshold required. The dispute was not continuing at the time it was referred to the labour officer. The Court held that:

“I associate myself with the submissions made by Respondent’s Officer on this point. He relied on the case of City of Gweru v Munyari SC 15/05 where the Honourable Justice Ziyambi J.A. at p.5 stated that,

“The Labour Court got it wrong. It had no jurisdiction to entertain the matter which had long prescribed.”

In other words, once a matter prescribes, that is the end of the matter. It cannot be revived in a judicial forum. On that basis, the appeal must fail.”

The principle in the above case is important in that once a claim has prescribed, the Court no longer has jurisdiction to preside over it. A prescribed claim cannot even be revived as it is not provided for in terms of the Labour Act. In Jeffrey Dube N.O v Casmyn Mining t/a Turk Mine LC/MT/60/18 the Court held that,

“Equally so, an employee who decides not to act until the unfair labour practise has prescribed cannot possibly argue that because they are still being affected, that unfair labour practise should be deemed as “continuing”.

Such an interpretation would result in rendering s94(1) redundant and superfluous”.

The usual trend is to argue that since there is no redress hence the unfair labour practice is still continuing.

Prescription is not interrupted by the fact that one is experience the inconvenience of the acts complained. The purpose of prescription is to encourage parties to be proactive in disposal of their cases. Prescription is by operation of the law, and it can only be interrupted in terms of the law.

LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]