1. SASLAW SEMINAR 17 MARCH 2016 Prescription in Employment Law Sean Snyman

2. Is Prescription Act inconsistent with LRA Road Accident Fund and Another v Mdeyide – Constitutional imperative of prescription Whether applicable to other statutes requires consistency enquiry Section 16 of Prescription Act Prescription applies to all debts unless inconsistent with Act Myathaza v Johannesburg Metropolitan Bus Service (SOC) Ltd t/a Metrobus Mazibuko v Concor Plant Cellucity (Pty) Ltd v Communication Workers Union on behalf of Peters (2016) 37 ILJ 413 (LAC) – ‘Cellucity’

3. Cellucity first dealt with ‘debt’ – if LRA claim is not a ‘debt’ then no prescription Debt interpreted in widest sense – includes claim Claim includes obligation to do something or not to do something Arbitration award creates obligation – obligation to reinstate or to pay compensation – debt for the purposes of LRA

4. No time limit for enforcing award once given – therefore no inconsistent period to Prescription Act exists / Time periods for initial referral, conciliation and arbitration referral apply only pre-award. Arbitration award not a court order – prescription period 3 years / Section 143 does not change nature of the award – simply enforcement mechanism Prescription starts to run as soon is debt is due – debt due when complete cause of action / Solidarity and Others v Eskom Holdings Ltd: ‘when everything has happened which would entitle the creditor to institute action’

5. ‘Debt due’ in the case of award – date when award is published – meaning handed down / sent to parties. From that date susceptible to being enforced No provision of condonation under prescription – debt finally extinguished / S 10(1) Prescription period 3 years / S 11(d) No time limit for enforcing award once given – therefore no inconsistent period to Prescription Act exists

6. Prescription can only be interrupted as prescribed by the Prescription Act – SS 13 and 15 S 15 – prescription interrupted by process enforcing award – Section 158(1)(c) application under LRA S 143 not a process enforcing award – it is merely an execution mechanism – does not qualify as process S 143 irrelevant in the issue of the interruption of prescription

7. Does review application interrupt prescription S 13(1)(f) – debt still subject of arbitration constitutes impediment Review application not impediment – arbitration process concluded by issue of award and review is challenge of that award Award itself is the debt and replaces the earlier unfair dismissal claim subject to arbitration S 13(1)(f) does not apply

8. S 15 – is review process interrupting prescription? S 15 requires process in which creditor claims enforcement of the debt / relationship one of debtor/creditor. Process must be brought by creditor against debtor in which creditor must demand compliance – must be served and filed Review is not process by the creditor / not served by creditor of debtor / review does not seek to enforce debt but in fact challenges it

9. Creditor cannot wait for review – principle that creditor cannot by own inaction stop prescription Review application does not stand in the way of the debtor bringing a s 158(1)(c) application Only need to bring 158(1)(c) application to stay prescription – does not have be a successful. Solidarity obo Prins and Others v Gijima AST (Pty) Ltd: ‘[a]ll that was required was a unilateral act by the applicants, in the form of the issuing and service and filing of process, to interrupt prescription.

10. S 14 does not apply – review never acknowledgment of liability LRA Amendment – S 145(9) / only applies to awards issued after 1/1/15 Review prescribed as process interrupting prescription “in terms of’ Prescription Act” / Must therefore be seen as S 15(1) process S 15(2) – unsuccessful prosecution of claim means prescription never interrupted / if review unsuccessful could be argued that prescription never interrupted

11. Is therefore critical that separate S 158(1)(c) application be filed even if pending review Simply add a prayer that the application be consolidated with the review Means prescription is interrupted and if review argued and lost / not proceeded with – follows that award made order of court Once an award is made an order of court prescribes only after 30 years

12. Prescription – even though a legal point – can never be raised in argument or considered mero motu by Court Must be formally raised in a pleading Where a review applicant realises award prescribed – file a separate declarator in the review

13. Prescription Act equally applies to other claims under LRA as well, including unfair dismissal No inconsistency between time limits under S 191 and Prescription Act S 191 time limits does not dispose of claim – condonation always possible S 191 time limits a ‘time bar’ / different from time limits extinguishing a claim

14. Commissioner for Customs and Excise v Standard General Insurance Company Limited:- ‘In our law there is a difference between limitation periods and prescription periods’ S 191 not expiry provision – does not bar claim being brought / Prescription actually bars claim being brought. Thus outer and inner ring of time limit provisions Inner ring – LRA time limits when undue delay needs condonation Outer ring – claim at an end and no condonation

15. Chemical Energy Paper Printing Wood and Allied Workers Union on behalf of Le Fleur v Rotolabel - A Division of Bidpaper Plus (Pty) Ltd the LRA, in its design, is not inconsistent with the application of the Prescription Act. On the contrary, there is a relationship of compatibility between the two statutes Prescription starts running at two different stages / original dismissal / then after conciliation date of failure to settle Conciliation referral / Arb referral interrupts prescription

16. Only acquire the right to pursue the dispute to adjudication after the completion of conciliation Separate prescription period from date of acquiring that right No referral for adjudication within 3 years of that date – claim prescribed and no condonation can be obtained