- May 12, 2023
- |Concise Law Reports (CLR), Labour Law
The first respondent was a PLAN combatant therefore he was offered employment by the appellant – according to the adopted practice of employing former PLAN combatants. The terms of the applicable conditions of service of employment would terminate the employment at the age of 60; when an employee attained the age of 60, the employment contract could be extended for a further two years provided the employee will be fit and willing to continue working.
On 24 October 2020, the board of the appellant changed the existing policy and ordered that the optional two years extension of employment would be abolished. On the contrary, when the first respondent attained the age of 60 in February 2021, he addressed a letter to the appellant seeking an extension of his employment contract for a further two years. He was informed by the appellant that his request is denied and the decision was re-affirmed by the Human Resources Department of the appellant on 18 March 2021. The result of this was that the first respondent ceased employment at the end of February 2021; the first respondent thus lodged a complaint to the Office of the Labour Commissioner to refer the matter for conciliation and arbitration.
It appears that prior to that date representations had been made to the appellant, none of which were successful. These representations were not in the nature of any internal procedure or appeal. It appears that no provision was made in any event for an internal process of review or appeal against the appellant’s decision.
MILLER AJ had to consider when the dispute arose in light of the provisions of section 86(2) of the Labour Act 11 of 2007, to which he stated:
‘[6] The provisions of section 86(2) of the Act are peremptory (Lüderitz Town Council v Shipepo (LCA 42/2012) [2013] NALCMD 9). The period cannot be extended by making representations in the interim, in an attempt to persuade the employer to change its mind.
[7] The facts of the case resonate with those in Luckhoff v The Municipality of Gababis LCA 46/2014 [2016] NALCMD 6 (2 March 2016). The dictum in the matter of National Housing Enterprise v Maureen Hinda-Mbazira Case No. SA 42/2012 does not find application. In that case, provision was made in the employment agreement to institute internal remedies.
The second respondent erred in allowing the matter to proceed. Clearly, the dispute had lapsed and should not have been entertained.’
Held that –
a) The representations made were attempts to resolve a dispute which already existed.
b) The dispute arose when the appellant informed the first respondent that his employment contract was not to be extended.
c) Provisions of section 86(2) of the Act are peremptory. The period cannot be extended by making representations in the interim to persuade the employer to change its mind.
d) The dispute had lapsed and should not have been entertained. The award must be set aside, and the appeal is upheld.’
Accordingly, the appeal was allowed and the award was set aside with no order as to costs.