- September 22, 2022
- |Concise Law Reports (CLR), Labour Law
LABOUR LAW – ARBITRATOR HAS NO JURISDICTION TO DEAL WITH DISPUTE LODGED OUT OF TIME
The appellant was the acting General Manager for Operations from 1 January 2016 until 31 August 2021. When he was not awarded a permanent position by the respondent, he referred a disputed to the Labour Commissioner’s Office. The arbitrator concluded that the dispute arose on 1 February 2017 and that the claim had prescribed, therefore, the tribunal lacked jurisdiction to hear the dispute. The appellant appealed against this award stating that the arbitrator wrongly came to this conclusion and that the dispute arose when the appellant became aware of the unilateral change.
OOSTHUIZEN J considered the appeal and the legal principles applicable and held that:
- The dispute was subject to section 86(2)(b) of the Labour Act and had to be lodged within one year after the dispute arose. The appellant was employed in this position for a period from 1 January 2016 to 31 August 2021, section 86(2)(b) makes provision that if a dispute arises, then the employer had one year to lodge the dispute.
- The arbitrator correctly concluded that the dispute arose on 1 February 2017, which correctly stands to be the 13th The appellant may not have known whether or not the employer could employ anyone in the permanent position, however, the employee was aware of clause 8(4), in that he qualified to be appointed as the permanent General Manager for Operations after 12 months of acting in that position. Hence, when he was not appointed on 1 February 2017, the dispute arose. The appellant had one year from that date to lodge the dispute with the Labour Commissioner. The dispute was lodged only on 14 December 2020, which was two years, ten months and fourteen days after the dispute had prescribed.
In the result, the court found that the arbitrator had no jurisdiction to deal with the dispute as it was lodged out of time and dismissed the appeal.
Matsi v RCC NALCMD 2 September 2022