Edith Chari v Greatermans Stores (Pvt) Ltd t/a Meikles Ltd (TM Stores)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/287/2016
HARARE 16 NOVEMBER 2015
CASE NO. LC/H/287/2016
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/287/2016

HARARE 16 NOVEMBER 2015				  CASE NO. LC/H/REV/28/15

AND 6 MAY 2016

EDITH CHARI								Applicant

GREATERMANS STORES (PVT) LTD					Respondent

t/a MEIKLES LTD (TM STORES)

Before The Honourable G. Musariri, Judge:

For Applicant 		Mr L. Uriri, Advocate

For Respondent		Mr T. Mpofu, Avocate

MUSARIRI, J:

Applicant applied for the review of Respondent’s decision to terminate her employment on notice.  She prayed that the decision be set aside.  Respondent opposed the application.  In due course the matter was set down for hearing.  At the onset of oral argument Respondent raised 2 points in limine. I shall deal with the 2nd point which I consider as dispositive of the matter

Whether Applicant should have exhausted domestic remedies?

Applicant’s grievance arose from her termination on notice by Respondent.  In paragraphs 18 and 21 of her affidavit she complained that,

“18.	Despite my lawyers having advised the respondent that they represented me in this matter, and despite two letters having been written to the respondent (both of which it ignored) I was served with a notice of termination of employment on 20 March 2015.  See Annexture D.  The respondent unilaterally determined that I be paid three months salary in lieu of the notice period.

21.	I am fortified in the view that the termination was absurd and unfair in that the respondent opted for termination of my contract of employment on notice instead of through the legitimate retrenchment process.”

In other words Applicant’s gripe was that her dismissal was unfair or unlawful.  Part XII of the Labour Act Chapter 28:01 (hereafter called the Act) provides for the resolution of labour disputes.  Section 93 (1) of the Act states that,

“A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.”

The term “dispute” is defined under section 2 to mean any dispute concerning employment.  In other words, a party to an employment contract has been provided with a (domestic) remedy which can be utilized without need to resort to a court of law.

Section 89 (d1) of the Act gave this Court powers of review in respect of labour matters.  A matter as in casu falls for review under those powers.  However where there are domestic remedies, the Court has a discretion whether or not to exercise the powers.  Indeed where there are domestic remedies it is undesirable to exercise the powers where a party fails to utilize the domestic remedy.  No compelling case was made out or argued as to why Applicant shunned the domestic remedy.  On that basis the Court should decline the invitation to exercise its powers of review.

I am fortified in this view by the case of

Muzengi v Standard Bank 2002 (1) ZLR 334 (S) (338 C-D),

where Ziyambi JA ruled that

“No special circumstances or good reason having been shown by appellant to exist justifying his approach to the High Court, the appellant’s obligation to exhaust domestic remedies was peremptory.  Accordingly, the application ought, on this ground alone, to have been dismissed.”

By parity of reasoning the present application ought to be dismissed.

Wherefore it is ordered that,

Respondent’s point in limine is hereby upheld;

The application for review is therefore dismissed; and

Each party shall bear its own costs.

G.  MUSARIRI

J-U-D-G-E