Chitungwiza Municipality v Zimbabwe Urban Councils Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/672/16
HELD AT HARARE 20 SEPTEMBER 2016
CASE NO
JUDGMENT NO LC/H/672/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/672/16

HELD AT HARARE 20 SEPTEMBER 2016		CASE NO LC/H/211/16

& 4 NOVEMBER 2016

CHITUNGWIZA MUNICIPALITY					Appellant

ZIMBABWE URBAN COUNCILS WORKERS UNION		Respondent

Before the Honourable G Musariri, Judge

For Appellant		Ms R Mutindindi, Attorney

For Respondent		B Makururu, Attorney

MUSARIRI J:

At the onset of oral argument respondent raised a point in limine.  Appellant opposed the same.  The point is succinctly set out in respondent’s heads of argument thus,

“1. It is respectfully submitted that the appeal is not properly before this honourable court as there is no right of appeal against a draft ruling of a labour officer made in terms of section 16 of the Labour Amendment Act, 2015.”

On 31 March 2016 at Harare, the labour officer (G T Parakokwa) issued a ruling.  He ordered appellant to either reinstate respondent’s members or pay them damages in lieu of reinstatement.  The officer had proceeded in terms of section 16 of the Labour Amendment Act No 5/15.  I note that section 5a of  the Amendment obliges the officer “as soon as practicable” to apply to the Labour Court for confirmation of his ruling.  The application should be made on notice to the losing party.  This therefore gives the losing party a chance to challenge the ruling in this court if he so wishes.

On the other hand section 92 D of the Labour Act [Chapter 28:01] gives a person aggrieved by a determination “made under an employment code” a right of appeal to the Labour Court.  The ruling in casu concerned dismissal on notice in terms of the Act.

The ruling was made by the labour officer in terms of the Labour Amendment Act.  That is distinguishable from a determination under an employment code.  Thus the appeal under the Act does not cover this matter.

Appellant is therefore left with the remedy provided by section 5a of the Amendment.  The remedy is initiated by the labour officer’s application to the Labour Court for confirmation of his ruling.  The application should be made on notice to appellant.  On the return day, appellant has the opportunity to challenge the ruling if he is aggrieved by it.  The resultant scenario is akin to an appeal.  However it is different because it is not initiated by the appellant.  I trust that the labour officer in casu shall promptly apply for confirmation to enable appellant to challenge the ruling as it is entitled to.

All in all the point in limine has merit and perforce needs be upheld.

Wherefore it is ordered that,

Respondent’s point in limine be and is hereby upheld; and

The matter is hereby struck off the roll.

G MUSARIRI

J U D G E