Fieldtech Sales (Pvt) Ltd v T Maposa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/309/14
HELD AT HARARE 15TH MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/309/14

HELD AT HARARE 15TH MAY 2014			CASE NO LC/H/1019/13

& 6TH JUNE 2014

In the matter between:-

FIELDTECH SALES (PVT) ltd				Appellant

And

T MAPOSA							Respondent

Before The Honourable L.M. Murasi, Judge

For Appellant		Mr N Tshabangu (Trade Unionist)

Respondent			In person

MURASI, J:

Respondent is in the employ of appellant.  Respondent and other workers approached the Labour Office in 2010 alleging non-payment of wages.  Honourable Arbitrator L.B. Ndlovu gave an order instructing appellant to pay the workers wages due to them.  This resulted in a Certificate of Settlement being subsequently issued by the Labour Officer Madziya on 13 March 2013.

Inspite of this development, appellant did not comply.  Respondent is owed an amount of $3240.22.  Respondent approached the Labour Office in view of the Certificate of Settlement and after conciliation had failed, the matter was referred to arbitration.  The arbitrator ruled in favour of respondent and appellant is disgruntled and has approached this Court for relief.

Appellant submits that the Arbitrator Kwaramba did not have jurisdiction to preside over the matter.  Appellant states that this was in violation of section 101 (5) of the Labour Act [Chapter 28:01] as there was a Code of Conduct which was to be followed before the matter was taken to the Labour Officer.  Appellant’s representative further stated that his instructions were to argue against Arbitrator Kwaramba jurisdiction and not that of E Ndlovu who issued the original award.

Respondent submitted that section 93 (1) of the Labour Act gave a Labour Officer jurisdiction to deal with the matter.  Respondent further argued that the matter was a follow-up to the award of Arbitrator Ndlovu which award had not been fulfilled and had not been challenged by the appellant.  Respondent stated that the appeal was in bad faith and was intended to delay the payments by the appellant to the workers.

Section 101 (5) of the Labour 	 Act relied upon by the appellant provides as follows:

“Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be subject of proceedings under an employment code, nor shall he intervene in any such proceedings.”

Subsection six (6) of section 101 provides that if a matter is being dealt with under a Code of Conduct and is not finalised within a stipulated period of time, any one of the parties may refer the matter to a labour officer who should deal with it in terms of section 93 of the Act.  A reading of the statute shows that the labour officer is prevented from intervening  where there are proceedings or likelihood of proceedings arising in terms of a Code of Conduct.  A Code of Conduct will ordinarily provide for issues such as general conduct of employees at the workplace, issues of misconduct and the procedure of dealing with such misconduct.  Appellant has not shown the Court that there were indeed such proceedings contemplated at the workplace.  In fact, the opposite is true.  Respondent and other employees had engaged appellant in meetings of the Works Council and with the shareholder aimed at resolving then issue.  There was no progress made in those meetings.

The Court, in reading the provisions of the Act is of the view that the situation contemplated in the Act is not of the kind in casu.  The legislature must have contemplated a situation where the matter is clearly to be dealt in terms of the Code of Conduct which would involve matters of discipline.  It would be stretching the imagination too far to contemplate a situation where the Code would provide for a complaint system for the non-payment of wages by the employer.  This falls under unfair labour practices as envisaged in Part III of the Act.  This is a matter which would require a referral to external arbitrators for resolution.  As already stated elsewhere in this judgment, the matter was already in the hands of the Labour Officer who had issued the Certificate of Settlement.

The Court has to consider another ancillary matte.  Appellant has not stated that the award by Arbitrator Ndlovu was erroneous.  In fact, appellant’s representative stated that his instructions were to challenge Arbitrator Kwaramba’s jurisdiction.  This line of thought is surprising.  Arbitrator Kwaramba’s award is firmly based on Arbitrator Ndlovu’s award and the latter was not appealed against.  The award by Arbitrator Ndlovu is binding on both parties and it is not comprehensible that appellant would want to dwell on Kwaramba’s award and not the original award which is binding on it.  A reading of Arbitrator Kwaramba’s award shows that appellant did not challenge his jurisdiction at the hearing.  Whilst a party may raise a point of law at any stage the absence of jurisdiction is a matter which should be brought on review and not as a substantive issue on appeal.  The matter should be dismissed on that basis.

The Court, after an analysis of the submissions and the law is of the view that the issue of jurisdiction was raised as an after thought as it was not raised before Arbitrator Kwaramba.  Secondly, a reading of the grounds of appeal reveals that it was not raised in those grounds by the appellant.  Thirdly, and most importantly, as already alluded to, a plea of the absence of jurisdiction by a tribunal is brought by way of an application for review.  The Court has stated that the Labour Officer was already seized with the matter having issued a Certificate of Settlement.

In the result, the Court finds the appeal to be devoid of merit and is accordingly dismissed.

The Court makes the follows order:

The appeal be and is hereby dismissed.

The arbitral award dated 18 November 2013 by Honourable Arbitrator Kwaramba be and is hereby upheld.

There be no order as to costs.