- February 1, 2023
- |Concise Law Reports (CLR), Labour Law
Sure Start Properties CC v Van Dyk NALCMD (1 February 2023)
The first respondent was aggrieved by her employer’s failure to pay her commissions and listing fees she claimed were due to her. The employer’s business was that of estate agents. When the first respondent’s attempts to get payment failed, she referred a dispute to the Labour Commissioner. The arbitrator held for the first respondent and ordered the appellant (the ‘respondent’) to pay N$129 718.90 to the first respondent. The appellant brought an pplication to rescind the arbitrator’s award, which failed, hence the present appeal.
PARKER AJ considered the issues of whether the statutory period had lapsed, whether the Labour Commissioner was therefore not entitled to accept the complaint, and whether the arbitrator was not entitled to deal with the complaint in conciliation and arbitration (Kartsen v The Labour Commissioner [2016] NALCMD 42 (26 October 2016). The first repondent did not agree with this and submitted that the appellant agreed to pay the commissions owed to her but she was informed that the appellant was not able to do so because it was using the money available to pay for litigation the appellant was involved in. The court stated that:
‘[4] In all this, one should not overlook the basic rule of practice of prescription relevant to the instant proceeding. The court or a tribunal (eg: arbitration tribunal) could not invoke prescription on its own motion. The party who wishes to invoke prescription must do so in the relevant document filed of record in the proceeding. This is extremely necessary and required to give the opposing party the opportunity to raise a valid answer to the allegation of prescription. In my view, the rule conduces to due administration of justice and fairness.’
The court found that the appellant failed to invoke prescription in any document filed on record with the Labour Commissioner during the arbitration having failed to attend the arbitration proceedings. Besides, the court found that on the facts the arbitrator was entitled to proceed with the arbitration in the absence of the appellant (the ‘respondent’) in terms of rule 27(2) and (3) of the Rules relating to the conduct of conciliation and arbitration before the Labour Commissioner (GN No. 262 of 2008).
‘[6] It was too late in the day and unacceptable for the appellant to invoke prescription in the appellant’s grounds of appeal. It would be unfair for the court in the appeal to entertain the invocation of prescription as that would prejudice the first respondent in the manner referred to in para 4 above: The first respondent would have been denied the opportunity to raise a valid answer to the allegation of prescription. Similarly, the arbitrator, too, could not consider prescription in the rescission application because the issue of prescription was not ‘a mistake common to the parties to the proceedings’, within the meaning of rule 32(1) of the Rules relating to the conduct of conciliation and arbitration before the Labour Commissioner.’
It was then held that:
- The arbitrator could not invoke prescription on his own motion.
- Held further that the party who wishes to invoke prescription must do so in the relevant document filed on record in the proceeding but not in a rescission application or on appeal.
Accordingly, the appeal was dismissed with appropriate orders made in respect of the arbitrator’s order.