Melusi Mahlangu v Fidelity Life Assurance Zimbabwe Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/177/14
HARARE 26TH SEPTEMBER 2013
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE                  JUDGMENT NO LC/H/177/14

HARARE 26TH SEPTEMBER 2013			CASE NO LC/H/250/13

& 28TH MARCH 2014

In the matter between:-

MELUSI MAHLANGU						Appellant

And

FIDELITY LIFE ASSURANCE ZIMBABWE LTD			Respondent

Before The Honourable B.S. Chidziva, Judge

For Appellant		Mr C Mucheche (Legal Practitioner)

For Respondent		Mr A.T. Muza (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against Honourable arbitrator Maganyani’s arbitral award which was handed down on the 15th of November 2012.  The award was couched as follows:

“Conclusively, it is the arbitrator’s findings that the claimant’s claims of

March 2008 salary and benefits

Constructive dismissal are prescribed.  I therefore shall not labour myself in determining whether the Respondent is obliged to pay March 2008 salary and benefits and determining whether or not the claimant was constructively dismissed as the claims were not instituted timeously.

Award

Having considered all the arguments made by the parties I hereby dismiss the claimant’s claims for lack of merit.

I award accordingly”

The grounds of appeal are that

The arbitrator grossly erred and seriously misdirected herself on a question of law by deciding that the dispute between the appellant and respondent had prescribed when such dispute was of a continuous nature and free from prescription

The arbitrator grossly erred and seriously misdirected herself on a question of law in relying on and misapplying Section 94 of the Labour Act in holding that the dispute had prescribed and yet that provision specifically applies to a Labour Officer and once a Labour Officer had entertained the dispute the issue of prescription could not be raised before an arbitrator.

The arbitrator grossly erred and seriously misdirected herself by failing to construe Section 94 of the Labour Act in its ordinary grammatical meaning and hence she fell into grave error by holding that the dispute had prescribed thereby arrogating to herself and usurping the powers of a Labour Officer, which powers were not conferred on her as an arbitrator by the Labour Act.

The arbitrator’s decision is irrational, grossly unreasonable in its defiance of common sense and logic such that no reasonable person properly applying his/her mind to the facts and the law could have made such a highly objectionable decision.

The appellant therefore prayed that

“The appeal succeeds and the arbitral award by arbitrator E Maganyani be set aside and consequently the matter is remitted for hearing on the merits before a different arbitrator nominated by the Registrar of the Labour Court from a list of arbitrators appointed in terms of Section 98 (6) of the Labour Act.”

The Respondent in response told the court that

It is clear that the dispute brought to arbitration by appellant had by the time of the institution of proceedings prescribed in terms of both section 94 (1) of the Labour Act and provisions of the Prescription Act.  The conclusion arrived at by the arbitrator cannot therefore be faulted in law.

The point relating to prescription being a point of law could be taken at any stage of the proceedings and having been properly before the arbitrator who had the obligation to relate to it.  The fact that the point was not taken before the Labour Officer or otherwise survived that stage of proceedings was no bar to its risingA fortiori, the determination of the point by the arbitrator did not amount to a usurpation of the Labour Officer’s function, the Labour Officer not having the monopoly to apply the law.

Once the employer-employee relationship terminated, there could no longer be continuing dispute between the parties and therefore nothing to arrest the running of prescription.

The findings that there was no continuing dispute and that respondent did not admit liability is a finding of fact which is not appealable before this court.

It is not possible as a matter of law for one to revive a prescribed debt by the simple expedient of an acknowledgement .

The prayer that the matter be placed before a different arbitrator is not only unfounded on the facts and the law but smacks of bad faith and forum shopping and stands to be frowned upon.

Upon these grounds the respondent prayed that the appeal should be

Dismissed with costs on an admonitory scale.

The brief background of the case is that appellant was employed by the respondent from July 1988 to March 2008.  On the 1st of March 2008 he resigned from the respondent’s employ on the following grounds

He could not survive on the increased retainer

He had no fuel to do business

The situation at the time was not conducive to his operations

He however continued working until he communicated again that he

was resigning with immediate effect on the 3rd of April 2008.  On the 9th of January 2012 the appellant approached the Labour Officer with a complaint of unfair dismissal stating that it was constructive dismissal.  The matter was eventually referred for arbitration after the parties had failed to reach an agreement.  The arbitrator handed down the award on the 15th of November 2012 and he then noted the appeal against this award on the 9th of April 2013.

What is to be decided in this matter is whether the unfair dismissal had prescribed or not when the appellant lodged the complainant with the Labour Officer.

The court is also going to decide whether the unfair Labour practice was continuing at the time it was brought before the Labour Officer.

On the issue of prescription Section 94 of the Labour Act States that

Subject to subsection (2) no Labour Officer shall entertain any dispute or unfair labour practice unless

it is referred to him or

has otherwise come to his attention within the dispute or unfair labour practice first arose

Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a Labour Officer.”

This section clearly shows that a Labour Officer is not suppose to deal

with a dispute of unfair labour practice which  is brought upafter (2) two years from the time that the unfair labour practice first arose.  From the documents filed of record it is clear that the appellant became aware of non-payment of his allowances as early as March 2008.  He then resigned on the 3rd of March 2008.  He tendered another notice of resignation on the 3rd of April 2008 very well knowing that he had not been paid the March 2008 salary.  He only raised his complaint with the Labour Officer on the 9th of January 2012. This was over three years and well above the (2) two years required by the Labour Act.

It is s trite principle of law that once an employee tenders a resignation unilaterally he cannot withdraw it without the employer’s consent.  A case in point  is Rustenburg Town Council v Minister of Labour & Ors 1942 TPD 220.

In the case of Lee Group of Companies v Anne Clare Elder SC 6/05 it was also stated that it is not necessary for the employer to accept any resignation that is given by an employee or to agree or refuse it.  In this case the appellant tendered his resignation and the respondent accepted it.  This therefore means that the relationship of employer – employee relationship had terminated. The appellant should have approached the courts there and then before the dispute became stale.  The appellant should have approached the Labour Officer and the courts within the stipulated (2) two years.

In the case of Lipchitz v Dechamps Textiles GMB H1978 (4) SA 427 (c) 430 – 1 it was stated that

“Once the period provided for has lapsed, barring any delays or interruption, the debt is extinguished.  When this has occurred, any subsidiary debt which arose from such debt is also extinguished, the debtor can no longer by acknowledgement revive such debt (sic) unless of course it is in the form of an undertaking amounting to a new contract.  The provisions of this subsection accordingly do not show that after prescription has taken place there is any vestige of a debt in existence…”

In this matter therefore after 2 years had expired from the1 March 2008 the respondent was no longer obliged to pay the appellant any benefits because the debt had extinguished.  In Wessels The Law of Contract in South Africa Volume 11 para 2766 it was stated that

“Creditors should not be allowed to permit claims to grow stale because thereby they embarrass  the debtor in his proof of payment and because it is upsetting to the social order that the financial relations of the debtor towards third parties should suddenly be disturbed by the demanding from him payments of forgotten claims.”

The period in excess of 3 years between the date of the alleged commission of offence and the institution of legal proceedings is too long and the appellant could have forgotten about the debt.  It is unfair on the part of the respondent to order them to pay stale and forgotten claims.

The appellant voluntarily terminated the contract of employment on the 1st of March.  This therefore means that the relationship of employer – employee had terminated and as such the unfair labour practice was not continuing.

In view of the forgoing it is this court’s finding that this appeal lacks merit.  Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Mavere & Sibanda, respondent’s legal practitioners