Brighton Chikwanha v Haumin Investments (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/625/16
HELD AT HARARE 16 SEPTEMBER 2016
CASE NO
JUDGMENT NO LC/H/625/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/625/16

HELD AT HARARE 16 SEPTEMBER 2016		CASE NO LC/H/LRA/97/16

& 7 OCTOBER 2016

In the matter between:

BRIGHTON CHIKWANHA					Applicant

And

HAUMIN INVESTMENTS (PVT) LTD			Respondent

Before The Honourable Chivizhe, J

For Applicant		B Chikwana

For Respondent		Mrs R Zimvumi (Legal Practitioner)

CHIVIZHE J:

The applicant, who is a labour officer duly appointed under the provisions of Section 121 of the Labour Act [Chapter 28:01] is seeking in this application, confirmation of his ruling made in terms of Section 93 (5) (c) of the Labour Act [Chapter 28:01].  The ruling which was made in a matter pitting Lloyd Kanera and 6 Others v Haumin Investments (Pvt) Ltd was handed down on 16 May 2016.  The application is opposed.

Background facts

The claimants, Lloyd Kanera and 6 others were employed by respondent in various positions.  The employment contracts were mutually terminated in line with provisions of the Labour Act [Chapter 28:01].  The claimants individually entered into Deeds of Settlement with the respondent and were paid their statutory entitlements.  The claimants however thereafter filed a claim for unfair labour practice on the basis of unpaid terminal benefits that covered the minimum retrenchment package, notice pay, leave days, overtime and underpayments.  Two conciliation meetings were held.  The respondent on both occasions failed to attend despite proper service.

The respondent wrote a letter dated 18 the May 2016 to the applicant (copy  is attached to the respondent’s papers) advising that it was not going to attend the proceedings since the employees were falling under the National Employment Council for Engineering Industry.  It was respondent position that the claimants should approach that body for redress.  The applicant notwithstanding respondent objection proceeded with the matter and handed down a ruling dated 16 May 2016 which ruling is the subject of these confirmation proceedings.  In his ruling he dismissed claims of overtime and underpayment for lack of proof/evidence.  He however upheld claims of notice pay, cash in lieu of leave and minimum retrenchment packages on the basis that were statutory entitlements.

The applicant in his founding affidavit is therefore seeking for confirmation of his ruling.  The applicant is also claiming costs of suit as quantified in Annexure E to his papers.

Points in limine

The respondent having taken two points in limine at the hearing the court shall address these initially.  The two points in limine taken are as follows.  Firstly that the applicant had no jurisdiction to entertain the matter.  Section 63 (3) (b) of the Labour Act [Chapter 28:01] clearly prohibits a labour officer from entertaining a matter where a designated agent is authorised to deal with the matter.  The submission was made that in this particular case there being a registered National Employment Council for the Industry to which the respondent is a party the applicant had no jurisdiction to entertain the matter.   The natter should have been referred to the designated agent of the Employment Council.  It was respondent’s further submission that by the use of the word ‘shall’ in section 63 (3) (b) it denotes that the provisions are mandatory rather than permissive.  By proceeding to hear the matter the applicant therefore clearly acted ultra vires the provisions of the Act and in particular Section 63 (3) (b).  His order therefore amounts to a nullity and the court should therefore dismiss the application on that basis alone.

The second point taken is that whereas according to the papers before this court four claimants appeared before the applicant in the initial hearing in his final ruling however  the applicant refers to Lloyd Kanera & 8 Others.  It is not clear from the papers where the other applicants came from. The respondent’s further submission on the same point that there is also no legal persona referred to as ‘and others’.  To the extent therefore that the ruling by the applicant refers to Lloyd Kanera & ‘others’ that ruling is a nullity as it refers to a non-existing entity.  On this basis therefore the application ought to be dismissed.

The applicant submission in counter is that the respondent is raising the jurisdictional issue as an afterthought.  The respondent did not raise this point in the proceedings before him.  In any event whilst it is indeed the correct position at law that the labour officer would ordinarily have no jurisdiction in a matter where there is a registered National Employment Council in this case the claimants had indicated before him that they had first approached the National Employment Council for redress but had failed to obtain any redress.  The claimants were thus left with no option save to approach the Ministry of Labour for redress.

Evaluation/Analysis

Section (3b) must be read conjointly with section (3a) of the Labour Act [Chapter 28:01]

Sections 63 (3a) and (3b) of the Labour Act [Chapter 28:01] provide as follows:

“(3a) A designated agent of an employment council who meets such qualifications as may be prescribed shall,

in his or her certification of appointment, be authorised by the Registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention; where such dispute occurs in

the undertaking or industry and within the area for which the employment council is registered, and the provisions

of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.

[Subsection substituted by section 21 of Act 7 of 2005]

(3b) Where a designated agent is authorised to redress any dispute or unfair labour practice in terms of

subsection (3a), no labour officer shall have jurisdiction in the matter.”

It is also clear on the basis of the provision in section 63 (3b) that a labour officer has no jurisdiction where there is in existence a registered National Employment Council.  The authority to determine a dispute in such circumstances is granted to a Designated Agent of the National Employment Council to redress and attempt to redress a dispute so referred to the council.  Section 63 (3b) through the use of the term ‘shall’ is clearly couched in peremptory language.

It is also clear on the basis of the papers that the respondent through a letter dated 18 May 2016 raised the issue of applicant lack of jurisdiction..  Having raised an objection to the applicant’s jurisdiction in the matter the applicant was duty bound to consider the issue and determine that issue first before proceeding to hear the matter.  The applicant however failed to address the issue.  Even though the proceedings were held in default of respondent it was still a jurisdictional issue which had the potential to curtail proceedings before him.  Applicant sought in these proceedings to make submissions from the bar that the claimants had initially attempted to refer the matter to the National Employment Council but had received no redress from there. The applicant submissions are inadmissible before this court.  The submissions cannot be accepted as evidence.  They are just mere submissions.  It was the duty of the applicant to have insisted for the claimants to place before him such evidence as to show that they had indeed referred matter to the Designated Agent of the National Employment Council who had refused to entertain their matter.  In the absence of such evidence the applicant was not entitled to proceed to determine the matter.  By so proceeding to hear the matter the applicant clearly flouted the provisions of Section 63 (3b) of the Labour Act [Chapter 28:01].  He assumed jurisdiction in a matter which ought to have properly been addressed at the National Employment Council.  He also acted ultra vires his powers as a labour officer.   Section 63 (3b) being couched in peremptory language non-compliance would render the proceedings null and void.  This court cannot  therefore confirm applicant’s ruling on that basis.

Having come to this conclusion it shall not be necessary for this court to determine the second point in limine.

In the event the following order is granted.

The first point in limine is hereby upheld.

The proceedings having been rendered null and void the application for confirmation of the ruling handed down By Brighton Chikwanha is hereby dismissed.

There is no order as to costs.

Ruth Zimvumi Law Practice, respondent’s legal practitioners