With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC), what are the prescription principles applicable, firstly, to the dismissal of an employee and, secondly, to the award of the CCMA or the relevant bargaining council?
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- It is submitted that the correct approach to be adopted to prescription is that as set out by the constitutional court in Food & Allied Workers Union obo Gaoshubelwe v Pieman’s Pantry (Pty) Ltd (2018) 39 ILJ 1213 (CC)
- This approach has consistently been followed by the labour appeal court in, inter alia, National Union of Mineworkers obo Majebe v Civil & General Contractors CC (2021) 42 ILJ 1027 (LC), and the labour court (e g the Van Rensburg judgment (supra))
- With reference to the aforesaid, the following relevant principles can be extracted:
- the Prescription Act is applicable to all claims in terms of the LRA
- a claim for reinstatement (with or without back pay), re-employment or compensation is a ‘debt’ as envisaged in the Prescription Act
- a three-year period is applicable to such debt
- the referral of an unfair dismissal claim or ‘unfair labour practice claim’ to the CCMA or the relevant bargaining council interrupts prescription and prescription remains interrupted until any review proceedings in relation to the process are finalised (including appeals) – a review and appeal in this regard is a ‘process’ ito s15(1) of the Prescription Act
- the award in respect of which the claim is granted is also a debt in terms of the Prescription Act – it prescribes three years after being issued unless, once again, interrupted
