Kuwait Court of Cassation principle number 389

Summary: - Actions brought by workers pursuant to the provisions of the Labour Law. They shall not be heard, upon denial, after the passage of 1 year from the date the employment contract ends, and the provisions of Article 442/2 of the Civil Code apply. The party invoking the bar to hearing the action. Must swear an oath that he has actually paid the debt to the worker. The debtor’s heir or the legal representative of the debtor or his heirs. Shall swear an oath that he is unaware of the existence of the debt or that he knows it has been paid. The court. May administer the oath of its own motion. Article 144 of Law No. 6 of 2010 concerning Labour in the Private Sector and its Explanatory Memorandum. Rule: Although the purport of Article 144 of Law No. 6 of 2010 concerning Labour in the Private Sector, as disclosed by the Law’s Explanatory Memorandum, is that actions brought by workers pursuant to the provisions of this Law shall not be heard, upon denial, after the passage of 1 year from the date the employment contract ends ... and, upon denial, paragraph (2) of Article (442) of the Civil Code applies, whereby the party invoking the bar to hearing the action must swear an oath that he has actually paid the debt to the worker; if he is the debtor’s heir or the legal representative of the debtor or his heirs, he shall swear an oath that he is unaware of the existence of the debt or that he knows it has been paid, and the court shall administer this oath of its own motion, it is nevertheless established in the jurisprudence of this Court that waiver of prescription, in all its forms, is a unilateral legal act effected solely by the will of the waiving party and is not subject to any formal requirement. Just as it may be express, through any expression of will conveying its meaning, it may be implied through the debtor adopting a position that necessarily indicates his waiver of the right to invoke prescription after that right has become established. The inference of such implied waiver is a matter within the exclusive province of the court of merits, without review by the Court of Cassation, provided that its inference is reasonable and derived from a factual indication having an established basis in the case papers and negating the intention to invoke it. That being so, the challenged judgment based its ruling rejecting the plea raised by the appellant that the respondent’s action should not be heard because it was brought more than 1 year after the date their employment relationship ended on its conclusion that the appellant’s representative acknowledged before the expert the respondent’s entitlement to wages for April 2010. This constituted an extrajudicial acknowledgment made by it after completion of the 1-year period required to bar the hearing of the action. The court inferred therefrom that, by this acknowledgment, the company had implicitly waived reliance on the plea barring the hearing of the action after its period had been completed and its right to invoke it had become established, because acknowledgment of part of the right defeats the passage of time, which rests on denial of the right. Accordingly, it cannot return to invoke it anew after relinquishing its right thereto. These reasons stated by the judgment, within the scope of the authority of the court of merits to infer waiver of prescription, were reasonable, had their proper basis in the case papers, could lead to the conclusion reached without error in the application of the law, and addressed the appellant’s defence. The challenge against it in this regard is therefore unfounded.