The applicant commenced employment with the respondent on 31 October 2010 and was dismissed on 12 May 2011. He referred an unfair dismissal dispute to the CCMA, initially citing True Labour Concept as the employer. The respondent (Rocklands Poultry Loss Control/Sovereign Foods) was joined to the proceedings through a joinder ruling issued on 21 September 2011. The matter proceeded to arbitration on 9 February 2012. An arbitration award dated 13 February 2012 found the dismissal to be procedurally and substantively unfair, found the respondent to be the true employer, and ordered retrospective reinstatement by 29 February 2012 plus back pay of R18,841.95. The respondent partially complied by paying the back pay around 2014, but never reinstated the applicant. The applicant made numerous attempts to enforce the award but was unsuccessful. He then applied to the Labour Court under section 158(1)(c) of the LRA to make the award an order of court. The respondent opposed on grounds of prescription and non-joinder.
1. The arbitration award dated 13 February 2012 issued under case number ECPE3115-11 was made an Order of Court. 2. The respondent was ordered to pay the applicant's costs.
An arbitration award ordering reinstatement constitutes a debt for purposes of the Prescription Act 68 of 1969. The prescription period begins when the employee is dismissed and is interrupted by referral of the dispute to the CCMA for conciliation. Where an arbitration award is not taken on review, the interruption of prescription ceases when the award is issued, and the award gives rise to a new prescription period of 30 years, as arbitration awards have the status of a court order between the parties and attract the prescription period applicable to judgment debts. A joinder ruling and arbitration award are binding on the parties in the absence of an order reviewing and setting aside those decisions. A party cannot challenge jurisdiction based on non-joinder where it was joined through a valid joinder ruling that has not been set aside on review.
The Court expressed regret at the apparent injustice caused by the respondent's avoidance of implementing the reinstatement order and then raising prescription as a defence, noting this had the effect of depriving the applicant of his livelihood. The Court also noted that the respondent had apparently offered the applicant employment with True Labour Concept (a different entity) rather than reinstating him with the respondent itself as ordered. The Court commented that costs orders in the Labour Court should be made in accordance with the requirements of law and fairness, and that the norm should be that costs orders are not made unless those requirements are met, though in this case the respondent's conduct warranted a costs order. The Court also observed that the rule that costs follow the result does not apply in Labour Court matters, citing Zungu v Premier of KwaZulu-Natal.
This judgment provides important clarification on the application of the Prescription Act to labour arbitration awards under the LRA. It confirms that: (1) arbitration awards ordering reinstatement constitute debts subject to prescription; (2) where an award is not taken on review, it gives rise to a new 30-year prescription period applicable to judgment debts; (3) prescription is interrupted by referral to conciliation and continues until the award is issued (in the absence of review proceedings); (4) joinder rulings and arbitration awards are binding on parties unless set aside on review; and (5) employers cannot avoid compliance with awards by raising technical defences where they have failed to review the underlying decisions. The judgment follows and applies the Constitutional Court's approach in Myathaza, Mogaila, and subsequent Labour Appeal Court decisions, providing lower courts with guidance on prescription issues in the labour law context.