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Arrear-wages after reinstatement: When do claims prescribe?
Today the Constitutional Court granted leave to appeal and allowed Numsa’s appeal against the judgment of Savage AJA in the LAC. There are two judgments reaching the same conclusion but for different reasons. The tension between the common law and two statutes, dealing with prescription and employment and labour rights, is considered in detail. Reinstated employees are usually entitled to arrear-wages as from the date of dismissal. But what happens if employers allow them to resume work but refuse or fail to pay any arrear-wages? What is the nature of that claim and when does it prescribe? What is the true ‘cause of action’? These questions have been ‘answered’ today by the highest court, but not in a particularly helpful manner.
Numsa v Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd) (CCT04/16) [2017] ZACC 9 (30 March 2017) per MADLANGA J (Froneman J, Khampepe J and Mbha AJ concurring) and ZONDO J (J (Mogoeng CJ, Jafta J and Mhlantla J concurring)