More often than not, most employees take too long to report their labour disputes and some even wait until they are out of employment. The main reason is that the employees would be afraid of victimisation by the employer. The aggrieved employees would be out of time and they are confronted with prescription as a point in limine and the matter dies a natural death leaving them in depression, stroke and even death. It is therefore important that employees know the prescription rule to avoid losing out.
Section 94 (1) of the Labour Act Chapter 28:01 (hereafter called the Act) provides that, “(1) Subject to subsection 2 No Labour Officer shall entertain any dispute or unfair labour practice unless –:
(a) it is referred to him; or
(b) has otherwise come to his attention; within two years from the date when the dispute or unfair labour practice first arose.”
It is important that the appellants should refer their matters to a Labour Officer within 2 years from the date it first arose.
Section 94 (2) of the Act provides an exception to the time limit. It applies where the unfair labour practice is continuing at the time it is referred to the Labour Officer. Thus by the time the matter is referred to the Labour Officer the unfair labour practice should be continuing for it to be exempted from prescription.
Section 94 (3) of the Act provides that a matter is deemed to have arisen when the claimant first became aware of the facts underlying the dispute. If such party cannot reasonably be expected to have known of such acts or omissions at the date when they first occurred it is emphasised that the dispute must be referred to the labour officer as soon as the claimant become aware and further delay will lead to prescription of the dispute.
xceptions may be noted on lower level employees who are illiterate like farm workers who can not understand the dispute unless they are alerted by someone.
No other exception other than those mentioned supra has been made in the Act. It is vital to note that raising the dispute internally will not be an exemption of reporting to the Labour Officer. In the case of Chengetai versus ZIMRA LC /H /41/ 13 Appellant’s attorney sought to save Appellant by arguing for a novel interpretation of section 94 (1). He argued that the Legislature did not intend to penalise employees whose claims prescribe whilst they are under consideration by the employer’s disciplinary & grievance bodies. In other circumstances Appellants argues that their claims prescribe while they wait for internal remedy. The argument appears logical given that the Act encourages speedy determination of disputes at the local or lowest levels. However the wording of section 94 (1) does not allow for such a novel (though desirable) approach. The wording is clear and unambiguous. Reference to a “dispute” is not qualified by whether or not a dispute has been taken through the employer’s bodies dealing with such disputes.
In the case of City of Gweru v Munyari SC 15/05, Honourable Justice Ziyambi J.A. at p.5 stated that, “The Labour Court got it wrong. It had no jurisdiction to entertain the matter which had long prescribed.”
In other words once a matter prescribes, that is the end of the matter and it cannot be revived in a judicial forum. It is therefore prudent that employees should not wait to report their disputes to avoid prescription.
Simbarashe Gobvu is an experienced La¬bour Practitioner and an Independent Arbitrator who write in his own capac¬ity. He can be contact¬ed at [email protected]/ Phone 0773215904 or 0713008767 https://masvingomirror.com