Tinashe Hlatshwayo v St Peter’s Catholic School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/552/2016
HARARE, 24 MAY 2016 &
9 SEPTEMBER 2016
CASE NO LC/H/678/2015 (APPEAL)
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/552/2016

HARARE, 24 MAY 2016 &				  CASE NO LC/H/678/2015 (APPEAL)

9 SEPTEMBER 2016

TINASHE HLATSHWAYO						APPELLANT

ST PETER’S CATHOLIC SCHOOL					RESPONDENT

Before the Honourable G Musariri, Judge

For the Appellant	  Mr M Johnson, Unionist

For the Respondent	   Mr L Muringani, Attorney

MUSARIRI J:

On 8th April 2015 at Harare, Arbitrator Y Malama issued an arbitration award. She ordered the respondent to pay the appellant an amount of US$3 663-00 “as underpayments for April 2012 to April 2013.” The appellant then appealed to this court against the award. The respondent opposed the appeal.

The grounds of appeal were two-fold as follows:

“1.	The Honourable Arbitrator grossly misdirected herself on the facts, such misdirection amounting to an error of law, in concluding that the claim for underpayment for 2009 to March 2012 shall not be entertained as it is prescribed.

2.	The Honourable Arbitrator grossly misdirected herself by no entertain 2009 up to March 2012 underpayments, when in actual fact, it is common cause that 2009 wages had a protracted dispute which ended in the Supreme Court and was disposed by the Supreme Court in 2012. Then wages were published and gazetted on the Statutory Instrument in 2013.”

The relevant part of the arbitrator’s reasoning declaimed as follows:

“5.	Analysis of submissions

The respondent raised a point in limine that part of the claimant’s claim is prescribed i.e. claim for 2009 to December 2011. A perusal of the record of proceedings indicates that the initial complaint was filed at conciliation on 22 April 2014 against complainant’s constructive dismissal in January 2013. He was still within time as the dispute had not prescribed…..

The terms of reference also revolved around the issue of underpayments, part of the claim which is not prescribed dates back to April 2012 as the respondent rightly refers to section 94 (1) on prescription. The claim for underpayments for 2009 to March 2012 shall not be entertained as it is prescribed.”

The arbitrator based her conclusion on the provisions of section 94 (1) of the Labour Act [Chapter 28:01] (hereafter called the Act). It provides that:

“94 (1)	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 two years from the date the dispute or unfair labour practice first arose.”

(The underlining is for emphasis)

The meaning of the provision is self-evident. As a result the arbitrator disregarded claims which were older than two years when the matter was referred. The respondent’s response also emphasized that “the claims of underpayment between 2009 and 2012 were prescribed in terms of the law. The fact that the wages were in dispute does not interrupt prescription.”

I respectfully agree with both the arbitrator and the attorney for the respondent. The earlier claims simply could not be entertained. Thus the appeal lacks merits and needs be dismissed.

Wherefore it is ordered:

The appeal be and is hereby dismissed; and

The arbitration award issued by arbitrator Y Malama is upheld.

G Musariri

J U D G E