Chengetai Mapundu v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/41/13
HELD AT HARARE 14TH FEBRUARY 2013
CASE NO
JUDGMENT NO LC/H/41/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/41/13

HELD AT HARARE 14TH FEBRUARY 2013		CASE NO LC/H/286/12

CHENGETAI MAPUNDU						Appellant

ZIMBABWE REVENUE AUTHORITY				Respondent

Before The Honourable G Musariri, President

For Appellant		Mr R Matsikidze, Attorney

For Respondent		Mr K Renzva, Officer

MUSARIRI, G:

On 12th March 2012 the Honourable A.J. Manase made an arbitration award.  In terms thereof he dismissed Appellant’s claim against Respondent for unpaid salary.  Appellant then appealed to this Court.  In oral argument before this Court, Appellant’s attorney adumberated the issues as follows;

Whether the matter was prescribed?

Whether the matter was properly referred to a Labour Officer

and

Whether an employer can unilaterally withdraw an employee’s salary?

I consider that the matter turns on the first issue concerning prescription.  Accordingly I shall confine the judgment to that issue.  Section 94 (1) of the Labour Act Chapter 28:01 (hereafter called the Act) provides that,

“(1)	Subject to subsection 2 no labour officer shall  entertain any

dispute  or unfair labour practice unless –

it is referred to him; or

has otherwise come to his attention; within two years from the date when the dispute or unfair labour practice first arose.”

(The underlining for emphasis is mine.)

It is common cause that this matter arose on 30th August 2007 when Respondent ceased paying Appellant’s salary.  It is further common cause that Appellant referred the matter to a Labour Officer (the Officer) on the

5th October 2011.  In other words a period of 4 years lapsed before Appellant referred the matter to a Labour Officer.  Thus prima facie the matter had prescribed as the Officer got it after 4 years instead of within the 2 year period prescribed by the Act.

Section 94 (2) of the Act provides an exception to the time limit.  It applies where the unfair labour practice is continuing at the time it is referred to the Officer.  In this case it is come cause that Respondent resumed paying Appellant salary in  January 2009.  Thus by the time the matter was referred to

the Officer the unfair labour practice had ceased and could not be termed as “continuing”.  Thus Appellant’s delay cannot be excused under the subsection.

Section 94 (3) of the Act provides that a matter is deemed to have arisen when the claimant first became aware of the facts underlying the dispute.  It is common cause that Appellant became aware of the stoppage of his salary at the time of the stoppage i.e. August 2007.  As already noted, that was 4 years before he referred the matter to the Officer.  Therefore his delay is not excused under this subsection as well.

No other exception has been made in the Act.  Appellant’s attorney sought to save Appellant by arguing for a novel interpretation of section 94 (1).  He urged the Court to interpret reference to “any dispute”” as reference to a matter which had not been referred to an adjudicator before the referral to the Officer.  He argued that the Legislature did not intend to penalise employees whose claims prescribe whilst they are under consideration by the employer’s disciplinary & grievance bodies.   Appellant’s claim prescribed while he was awaiting the determination of his appeal by Respondent’s appellate body.  The argument appears logical given that the Act encourages speedy determination of disputes at the local or lowest levels.  However the wording of section 94 (1) does not allow for such a novel (though desirable) approach.  The wording is clear and unambiguous.  Reference to a “dispute” is not qualified by whether or not a dispute has been taken through the employer’s bodies dealing with such disputes.

I associate myself with the submissions made by Respondent’s Officer on this point.  He relied on the case of City of Gweru v Munyari  SC 15/05 where the Honourable Justice Ziyambi J.A. at p.5 stated that,

“The Labour Court got it wrong.  It had no jurisdiction to entertain the matter which had long prescribed.”

In other words once a matter prescribes, that is the end of the matter.  It

cannot be revived in a judicial forum.  On that basis the appeal must fail.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT