CMED (Pvt) Ltd v Lawrence Kabala

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LCH226/23
HARARE, 18 MAY 2023
CASE NO LC/H/99/23
2023
---------


IN THE LABOUR COURT OF ZIMBABWE

HARARE, 18 MAY 2023 & 2023

JUDGMENT NO LCH226/23

CASE NO LC/H/99/23

In the matter between:-

CMED (PVT) LTD

LAWRENCE KABALA

APPELLANT

RESPONDENT

Before the Honourable Kudya J

For the Appellant

For the Respondent

Mr M. Moyo (Legal Practitioner)

Mr K. Chirenje (Unionist)

KUDYA, J:

This is an appeal against the decision of the Designated Agent NEC Motor Industry where he ordered the reinstatement of the respondent employee in a labour dispute pitting him and the appellant employer. The Appeal is based on the following grounds:-

1. Designated Agent in Harare erred to preside over a dispute which should have been presided over by Designated Agent in Gweru.

2. Designated Agent erred by concluding that respondent was a permanent employee yet the facts pointed to a contrary position.

3. Designated Agent erred to reinstate respondent in circumstances where Respondent had not sought such relief.

4. Designated Agent erred to award respondent damages without evidence to support such an award.

2 LCH226/23 LC/H/99/23

5. Designated Agent erred to award 12 monthsdamages contrary to documentary evidence that appellant had only been authorised to employ respondent for a fixed period.

In the result the appellant prayed that the appeal succeeds and that the Designated Agent’s order be set aside in its entirety.

In response to the appeal the respondent maintained that;

1) Designated Agent Harare had jurisdiction to entertain the matter. The jurisdiction issue is a technicality which did not prejudice the appellant.

2) The Designated Agent was correct to conclude that the respondent was a permanent employee since he did not sign any further contract after June 2022 but remained in employment and was as such a permanent employee.

3) Reinstatement was the appropriate remedy for the unlawful termination of respondents contract of employment.

4) There was no misdirection in the damages award as respondent claimed 24 months damages but was awarded 12 months.

5) Designated Agent was correct to make the damages award he made as he was satisfied by evidence tendered to support such.

At the onset of the matter points in limine were raised by the parties but these were resolved by the parties engagement and agreement to drop the same. In that regard this judgement only addresses the merits of the appeal.

The background to the matter is that the respondent who was in appellant’s employment based in Gweru took his claim to the Designated Agent for the Motor Industry in Harare. The appellant quizzed the jurisdiction of the Designated Agent Harare but same was adamant that he had jurisdiction on account of the fact that he was sitting in the Industry head office thus senior to the Designated Agent Gweru. DA Harare made the award in favour of appellant.

Appellant is not happy with that award both on the jurisdiction basis and in the merits of the award. This has driven the appellant to the Labour Court seeking the appellate relief already stated above.

On the question of jurisdiction a reading of the law admits of no doubt that the DA Harare did not have the jurisdiction to deal with a matter that occurred within the domain of the Gweru DA Sec 63 (3a) reads

Designated Agents of employment councils 1) ……………….

2) ……………….

3 LCH226/23 LC/H/99/23

3a) A designated Agent of an employment council.,……..shall……..redress or attempt to redress any dispute…….in the undertaking or area and within the area for which the employment council was registered …….,…….

A plain reading of this provision demonstrates beyond doubt that the dispute should be within the area for which theemployment council is registered. In thecase at hand the area was Gweru hence it was the Gweru Designated Agent who had to deal with the matter. The excuse about seniority etc finds no expression in this clear provision. If there were any other issues militating against the handling of the matter by Designated Agent Gweru such had to be solved properly not by usurping the Designated Agent Gweru’s powers. The demarcations made for the Designated Agents are meant for the smooth administration of issues within their areas. If such arrangements were to be breached without cause that would bring anarchy in the resolution of disputes by the Designated Agents. The court is satisfied that the jurisdiction issue is not a technicality but the bed rock of any matter. It thus cannot be washed away by arguing that no prejudice was suffered from the irregular arrangements. It is settled that a nullity begets a nullity See McFoy v United Africa Company 1961 AII ER 1169. It is clear thatthe Designated Agent erred grossly by dealing with a matter where he lacked jurisdiction to deal with the same. To that extend all that he did was a nullity. This means that there is no point in going to the merits of the matter as all that was a nullity. Suffice to state that the appeal being merited on the jurisdiction issue should succeed. Addressing the rest of the issues is only of academic interest and no purpose would be served by doing that so the rest of the grounds shall not be discussed. In the ultimate the appeal being merited should succeed.

IT IS ORDERED THAT

Appeal being merited it be and hereby succeeds. Each party to bear own costs.

D.B.N. Attorneys, Applicant’s Legal Practitioners