John Karimazondo and 2 Others v Titan Drilling (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/172/24
HARARE, 31 JANUARY, 2024
CASE NO LC/H/827/23
15 APRIL 2024
JOHN KARIMAZONDO AND 2 OTHERS
APPELLANTS
TITAN DRILLING (PVT) LTD
RESPONDENT
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JUDGMENT NO LC/H/172/24

CASE NO LC/H/827/23

JOHN KARIMAZONDO AND 2 OTHERS

APPELLANTS

TITAN DRILLING (PVT) LTD

RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellants - Ms N. Matongwana, Unionist

For Respondent - Mr M. Ncube, Attorney

MUSARIRI, J:

On 17th November 2022 at Harare, Designated Agent (DA) V. Tasiyana issued a determination. He dismissed appellants’ (employees) claims of unlawful termination by respondent (employer). The employees then appealed to this Court. The appeal was made in terms of Section 92D of the Labour Act Chapter 28:01. The employer opposed the appeal. The grounds of appeal were quadruple thus;


“1. The designated agent erred in upholding the preliminary point raised by respondent that the matter had prescribed.

2. The designated agent erred in failing to consider that the matter was referred to the NEC by the Labour Court.

3. The designated agent erred in failing to consider that the matter was referred to the labour officer in time.

4. The designated agent failed to consider that the matter was before the courts.”

On 16 May 2019 the employees filed claims of unlawful termination of employment by the employer. On 16 December 2020 Labour Officer (LO) T. Munyanyi ordered the employer to reinstate the employees or he would quantify damages *in lieu* of reinstatement. Munyanyi then applied to this Court for the confirmation of his ruling. On the 23rd March 2022 this Court struck the matter off the roll. On 24th March 2022 the employees filed a fresh claim of unfair dismissal with the NEC for the Mining Industry. The matter was heard by DA Tasiyana who issued the **determination** under appeal in **casu**.

**Determination**

The determination ruled that;

“It is ordered that:

1. The point **in limine** on prescription is upheld.
2. Accordingly, the matter is dismissed with no order as to costs.”

It is apparent that the employer raised the preliminary point that the employees’ claims had prescribed by the time they filed their claim with the NEC on 24 March 2022. In their claim the employees stated that they were “summarily terminated” on 20\textsuperscript{th} March 2019. Over 3 (three) years had lapsed before the claim was filed with the NEC.

**Analysis**

The employer relied on Section 94(1) of Part XII of the Act which provides that;

“…no labour officer shall entertain any dispute or unfair labour practice unless--a) it is referred to him; or b) has otherwise come to his attention; within two years from the date when the dispute or unfair labour practice first arose.”

This Section should be read together with Section 63(3a) which provides that;

“A designated agent… shall… redress or attempt to redress any dispute which is referred to the designated agent … and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

Therefore, the two-year limit placed on a Labour Officer equally applies to a Designated Agent. The claim in casu was wrongfully brought to the DA after the two-year limit.

The ground that the matter was referred to the NEC by the Labour Court is untenable. The order issued by the Court simply struck the matter off the roll. The fact that the matter had previously been referred to a labour officer on time is unhelpful either. This appeal is seized with the matter referred to the DA in 2022. The fact that the matter was before the Court whilst prescription tolled is neither here or there. In any event interruption of prescription by court proceedings only applies where the proceedings are prosecuted to a successful conclusion. In casu the conclusion was a dismissal thus judicial interruption cannot apply.


Conclusion

The conclusion by the DA that the matter had prescribed was well grounded in fact and law. Therefore, the appeal against his determination ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

1. The appeal be and is hereby dismissed; and

2. Each party shall bear is own costs.

G. MUSARIRI
J-U-D-G-E
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