Fay Vermaak v Summer Sit Down (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/34/2014
HARARE, 20 & 22 JANUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/34/2014

HARARE, 20  & 22 JANUARY 2014	    		   CASE NO. LC/H/187/2013

In the matter between:-

FAY VERMAAK						Applicant

And

SUMMER SIT DOWN (PVT) LTD			Respondent

Before The Honourable L.M. Murasi : Judge

(IN CHAMBERS)

MURASI J,

On 20 November 2013 I issued an order sitting in Chambers directing the Senior Labour Officer to refer the matter to arbitration within 30 days of the order.  On 3 January 2014 Applicant wrote to the Registrar requesting for the reasons for that order.  The following are the reasons for that order.

Applicant was employed by Respondent.  The circumstances leading to the termination of such employment are not clear as Applicant’s version differs materially from that of Respondent.  The matter was brought before B. Chikwanha, a Labour Officer, for conciliation. The Labour Officer issued a Certificate of No Settlement on 14 A--ugust 2013.  Applicant made this application to this Court, presumably in terms of section 93 (7) of the Labour Act [Chapter 28:01].  I say “presumably” because the application itself does not state so categorically.

A perusal of the record shows that Applicant has a different version of events from that of Respondent.  This is by way of averments contained in the documents submitted by both parties.  I state that these are “averments” as no documentary proof of such averments has been given.  There is therefore need to have such issues properly ventilated and a proper decision arrived at based on accurate and credible evidence.

The Labour Court is a creature of statute and everything it has to adjudicate upon should be within the four corners of the statute.  As stated by ZIYAMBI JA in NRZ vs ZARU 2005 (1) ZLR 341 (S) at 347A:

“Thus, before an application can be entertained by the Labour Court it must be satisfied that such an application is an application ‘in terms of this Act or any other enactment.’  This necessarily means that the Act or other enactment must specifically provide for applications to the Labour Court, of the type that the applicant seeks to bring.”

Even though the Applicant did not state that the application was in terms of a particular section of the Act, I satisfied myself that the application was indeed in terms of the statute.  Section 93 (7) provides:

“7. If, in relation to any dispute or unfair labour practice –

After a labour officer has issued a certificate of no settlement in relation to the dispute or unfair labour practice, it is not possible for any reason to refer the dispute or unfair labour practice to compulsory arbitration as provided in subsection (5); or …

……

Any, party to the dispute may, in the time and manner prescribed, apply to the Labour Court –“

Further, section 89 (2)(b) provides:

“In the exercise of its functions, the Labour Court may –

(b)in the case of application made in terms of subparagraph (i) of subsection (7) of section ninety – three, remit it to the same or a different labour officer with instructions that officer to attempt to resolve it in accordance with such guidelines as it may specify;”

The matter was before B. Chikwanha, a Labour Officer who issued a Certificate of No Settlement.  The parties are giving varying reasons for the termination of the employment.  There is need for evidence to be adduced so that that issues are crystallized.  It was in light of that need that I ordered the Senior Labour Officer to refer the matter to arbitration.