Article by: Roodepoort Attorney: LEON WOLLNIK
The recent case of Potgieter v Samancor Chrome Limited turned on whether an employee’s claim for arrear wages had prescribed.
After being dismissed in 2006, the employee successfully challenged the dismissal through the bargaining council and later secured a reinstatement order from the Labour Appeal Court in 2014, which was upheld by the Constitutional Court. He was reinstated in July 2015 and soon thereafter entered into a mutual separation agreement.
A dispute arose regarding the arrear wages he believed were due from the date of dismissal until reinstatement, leading him to institute a claim in July 2018.
The Labour Court upheld the employer’s special plea of prescription, finding that the claim had prescribed three years after the LAC’s 2014 order, and therefore concluded that the employee was out of time.
On appeal, however, the Labour Appeal Court clarified that a reinstatement order merely revives the employment relationship and that arrear wages only become due once reinstatement actually occurs. Since reinstatement took place on 23 July 2015, prescription would only have expired on 24 July 2018. The employee’s initial claim, lodged on 20 July 2018, was therefore within time. Although that claim was later withdrawn, the LAC found that it was done for procedural clarity rather than abandonment, and subsequent proceedings were treated as a continuation of the same claim, thereby interrupting prescription under section 15 of the Prescription Act.
The Court set aside the Labour Court’s ruling, dismissed the employer’s plea of prescription, and confirmed that the employee’s arrear wages claim could proceed.
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