THE COMMENCEMENT OF PRESCRIPTION IN CLAIMS FOR BACKPAY

In Nel v Oudtshoorn Municipality & another (2013) 34 ILJ 1737 (SCA) at paras 8 and 10, the Supreme Court of Appeal (SCA) held that:

‘… In Jackson v Fisher's Foils Ltd [1944] 1 All ER 421 Humpreys J quoted with approval the following dictum in Dixon (William) Ltd v Patterson 1943 SC (J) 78 as to the meaning of 'reinstatement': “The natural and primary meaning of "to reinstate" as applied to a man who has been dismissed (ex hypothesi without justification) is to replace him in the position from which he was dismissed, and so to restore the status quo ante the dismissal”… From the provisions of the LRA and the cases I have cited it is clear that by reinstating a dismissed employee the employer does not purport to conclude a fresh contract of employment. The employer merely restores the position to what it was before the dismissal...’

Further, and in Myers v National Commissioner of the SA Police Service & another (2014) 35 ILJ 1340 (LC) at para 14, the Labour Court (LC) held that:

‘The Constitutional Court in Equity Aviation interpreted the word “reinstate” to mean that the employee must be put back into the same job or position that he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is aimed at placing the employee in the position he or she would have been, but for the unfair dismissal.’

As such, the CC per Zondo J (as he was then) in National Union of Metalworkers of SA on behalf of Fohlisa & others v Hendor Mining Supplies (A Division of Marschalk Beleggings (Pty) Ltd [2017] 6 BLLR 539 (CC) at para 167, also recorded that:

‘… if, ultimately, the employer has to reinstate the workers, it would be contractually liable for the remuneration that the workers would have earned had the employer complied with the reinstatement order…’

Further and in Molopa v Trans-Orange Conference Of Seventh Day Adventists & others [2023] ZALCJHB 41 at para 35, the LC held that:

‘There can be no legal basis for any contractual claim for arrear wages until such time as the contract is restored and rights to backpay flowing from the reinstatement order can only arise once the contract is restored. Prior to the employer agreeing to restore the contract pursuant to an order to do so, there is no contract in existence and thus no juridical basis for a claim for arrear wages.’

In this regard, the SCA in Duet and Magnum Financial Services CC (In Liquidation) v Koster 2006 (4) SA 168 (SCA) at para 15, stressed that:

‘…Prescription is about rights that have come into existence but have ceased to exist by the passage of time. If a right has not come into existence then there is nothing that is capable of expiring.’

As such, the event as foreseen in section 12 of the Prescription Act, i.e., ‘… prescription shall commence to run as soon as the debt is due’, is the actual act of compliance by the employer with the reinstatement order or simply put, the employer reinstating the employee.