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[2015] ZALCJHB 444
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Mthenjwa v State Information Technology Agency and Others (JS801/10) [2015] ZALCJHB 444 (13 November 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JS801/10
In the
matter between
TITO
BS
MTHENJWA
Applicant
and
STATE
INFORMATION TECHNOLOGY AGENCY
First Respondent
LEFATSHE
TECHNOLOGIES (PTY)
LTD
Second Respondent
NOEDINE
ISAACS-MPULO
Third Respondent
Heard:
13 November 2015
Delivered:
13 November 2015
Edited:
3 February 2016
EX
TEMPORE JUDGMENT
CELE J
[1]
The applicant, in these proceedings, has
raised two issues; one relates to the jurisdiction of this court in
dealing with severance
pay; the second one talks to the prescription
of the sum of the claims relating to severance pay. I thank both
parties for their
submissions that they have made in the heads of
argument.
[2]
I refer to the applicant who is in fact the
respondent in the main trial and the respondent as being the
applicant in that main
trial. The challenge here was that the issue
of severance pay if it is linked to an unfair labour practice is an
issue that belongs
either to the CCMA or a bargaining council and,
therefore, this court lacks jurisdiction to proceed with this matter.
[3]
It has remained common cause between the
parties that there is a main issue, which was referred by the
respondent to the court for
trial, relating to an automatically
unfair dismissal as is envisaged in terms of
section 187
of the
Labour Relations Act 66 of 1995
.
[4]
Because there is that main issue, it must
follow that the other ancillary issues may be dealt with by this
court in the same vein.
I made a comparison of a situation where an
employee alleges that he has been unfairly dismisses through the
operational requirements
by a company, then when this court is seized
with such a matter in terms of
section 189
, this court simultaneously
is able to examine the question of severance pay because the issue of
severance pay becomes an ancillary
claim against the main claim of
retrenchment.
[5]
Similarly, in this case, the main claim is
premised on the provision of
section 187
and, therefore, the issue of
the incentive bonus comes an ancillary issue which can be determined
by this court, particularly,
now that there has been a recent
amendment of the Act. I believe both parties saw that approach as
being appropriate and they have
agreed that such position should
prevail in this matter.
[6]
I then move on to the last issue raised by
the applicant, it talks to the prescription of a claim. The
suggestion in the papers
is that because the main issue or the main
claim was referred in 2008 that the claims of the respondent had
become due and payable
from 2008 onwards and that, therefore, have
since prescribed. According to the heads prepared by Ms Botha which I
believe have
the correct date, at paragraph 19.4, the applicant
alleges that he referred an unfair labour dispute on 20 June 2008.
[7]
The applicant went on then to suggest that
the claim of the bonus would be due and payable on 7 June of each
years, calculated from
2005, 2006, 2007, 2008 onwards. Using that
date of 20 June 2008 as being the date when the dispute was referred,
it must follow
that when you add three years to that date, the first
claim from 1 March 2004 to 28 February 2005 and looking at it
becoming due
from 7 June, three years after that would be June 2008.
[8]
The three year period would have run
through and therefore in a matter of days that claim would possibly
have prescribed because
of the three year period as envisaged in the
Prescription Act but the rest of the other claims would remain. I
need to go back
on the basis on which the date should be construed.
[9]
The parties, in their presentation of the
matter, differed in terms of when prescription would, stop running.
According to the applicant,
it would stop running from the date of
the referral of this matter to this court. My view of the matter is
that, before a dispute
is referred to the labour court for
adjudication, I am talking about the trial matters, the first step
that is prescribed by section
191(1) up to (3) is that the dispute
must first be conciliated.
[10]
This is an important and essential step;
without it, this court would not be properly seized with this matter;
without it, this
court would lack jurisdiction in this matter. My
view, therefore, of the matter is that the referral, a complete
referral as envisaged
as in section 191(1) up to (3), amounts to a
process is envisaged in the Prescription Act. Therefore, the date of
the referral
of this dispute in 2008 is the date that should be used
in this matter and it should therefore not be the date when the
matter
is referred to the Labour Court. It should be the date when
the matter is referred for conciliation.
[11]
It is on those basis that the referral to
the CCMA then interrupted the running of prescription except the
first claim dated 1 March
2004 to 28 February 2008 which should,
where prescription began to run from 7 June 2005. It is that claim
which I will uphold as
having prescribed, the rest of the other
claims remain intact.
[12]
I will therefore make the following order:
12.1.
Court has jurisdiction to be seized with a
claim on bonus as an ancillary claim where the main claim based on
section 187(1) of
the LRA.
12.2.
Prescription is upheld only in respect of
the bonus claim for the period from 1 March 2004 to 28 February 2005
which claim was due
and payable from 7 June 2005.
12.3.
In respect of other claims for incentive
bonus, the running of prescription was stopped when the matter was
referred for condonation
in terms of section 191(1)(3) of the LRA.
12.4.
The Registrar is now to set the matter down
in the expedited trial roll for a 3 day trial period on notice to
both parties.
12.5.
There is no order as to costs.
__________________
Cele,
J
Judge
of the Labour Court