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Employees must Enforce Arbitration Awards Timeously

By Neil Coetzer, Partner, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys

 

In the recent case of ACC Combrink v Doves Funerals (Pty) Ltd & Others (JR3083/06) [2016] ZALCJHB 188 (20 May 2016) the Labour Court was requested to make an arbitration award that was almost ten years old an Order of Court.

 

On 21 November 2006 the CCMA handed down an arbitration award which required Doves Funerals (Pty) Ltd, the employer, to pay an amount of R173 035.92 to the employee. Shortly after obtaining the award, the employee took steps to certify the award in terms of section 143 of the Labour Relations Act 66 of 1995, as amended (“the LRA”). During 2007 the employer then obtained an interim Order from the Labour Court in terms of which the enforcement of the award was stayed until the employer’s review application had been determined by the Labour Court.

 

On 20 May 2016 the review application had still not been determined and the employee then approached the Labour Court to have the review application dismissed and the award handed down in 2006 made an Order of Court.

 

The Prescription Act 68 of 1969 requires a person to claim payment of a debt within three years of that debt becoming due. In the event that the debt is not claimed within that period, the Prescription Act provides that the claim is then prescribed and proceedings cannot be instituted to claim that amount. If the amount is claimed within the three year period, the claim is said to have ‘interrupted’ prescription.

 

The problem faced by the employee was one which had come before the Labour Court on several occasions in the past. An amendment to section 145 of the LRA in 2015 attempted to resolve this issue. Section 145(9) of the LRA now provides that the filing of a review application interrupts prescription in terms of the Prescription Act. In the recent Labour Appeal Court judgment of Myathaza v Johannesburg Metropolitan Bus Service (Soc) Limited t/a Metrobus; Mazibuko v Concor Plant; Cellucity (Pty) Ltd v CWU obo Peters (2016) 37 ILJ 413 (LAC) the Court held that the amendments to the LRA in 2015 are, however, not applicable to review applications which were filed before the amendments.

 

The Court found that it was bound by the Labour Appeal Court judgment in Myathaza and therefore since the review application was filed prior to the amendment to the LRA in 2015 and the employee’s claim for the award to be made an Order of Court was filed outside of the three year period set out in the Prescription Act, the employee’s claim had clearly prescribed and could no longer be enforced. The Court accordingly dismissed the application.                                            

 

For more information please contact Neil Coetzer at This email address is being protected from spambots. You need JavaScript enabled to view it. or (011)  783 8711 /(011) 048 3000

Article published with the kind courtesy of Cowan-Harper Attorneys www.cowanharper.co.za

 

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