Joseph Kanengoni v Elnour United Engineering Group (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/478/16
HELD AT HARARE 27 JULY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/478/16

HELD AT HARARE 27 JULY 2016				CASE NO LC/H/LRA/37/16

& 5 AUGUST 2016

In the matter between:

JOSEPH KANENGONI  						Applicant

And

ELNOUR UNITED ENGINEERING GROUP (PVT) LTD		Respondent

Before The Honourable Chivizhe, J

Applicant			J Kanengoni 	 (Designated Agent)

For Respondent		Ms Drury  (Legal Practitioner)

CHIVIZHE, J:

The matter was placed before me as an application for confirmation of a ruling made in terms of Section 93 (5) (c) of the Labour Act [Cap 28:01].  The application was opposed.

Background Facts

The Applicant is a Designated Agent with the National Employment Council under the Construction Industry (NEC Construction) duly appointed under the provisions of Section 63 of the Labour Act. The Respondent is a company, duly registered under the laws of Zimbabwe.

Various claimants, who are not joined to this application, approached the National Employment Council for the Construction Industry alleging under payment of wages, non-payment of overtime, notice-pay and scrap allowances. They were also seeking payment of the minimum retrenchment package. The Respondent opposed the matter on the basis that the claimants were not its employees.   After hearing the matter and upon consideration of the evidence placed before him the Applicant concluded that the claimants were employed by the Respondent. The Applicant therefore found that the claim for underpayment of wages was valid and that the claimants were entitled to payment for overtime and scrap allowance.  He further found that since the claimants had resigned they were not entitled to notice pay or compensation package.

The Applicant’s submission was that the Respondent having failed to comply with his ruling by the restitution day given as 20th of May, 2016 the Applicant was seeking for confirmation of his ruling as prescribed  in Section 93 (5) (a) and (b) of the Labour Act [Cap 28:01] and amended by the Labour Amendment Act Number 5 of 2015. The Applicant was also claiming costs of suit as quantified in Annexure 4 to his papers. The Applicant therefore prayed for an order in terms of the Draft order filed of record.

Points in Limine

The Respondent in its opposition papers raised three points in limine. In the first point Respondent was challenging the Applicant’s authority to hear the matter. Section 63 (3) (a) of the Labour Act requires designated officers to be issued with certificates of appointment.  The applicant had however failed to produce same.  The Applicant having however, on the date of hearing, produced before the court his valid certificate of appointment the Respondent then abandoned this point.  The point in limine therefore stands as dismissed.

The second point in limine was to the effect that different versions of the ruling had been placed before the court.  Firstly there was a version that had been issued to the Respondent after the Applicant made his ruling.  There was yet another version of the ruling which was annexed to the application which according to the Respondent was materially different from the first.  The Respondent in the course of proceeding opted to hold in abeyance this point in limine as it is related to the merits of the application. That concession in my view was properly taken.

The last point in limine taken was that the provisions in Section 95 (5) (a) (b) (c) of the Labour Act [Cap 28:01] on which the present application is premised are unfair and unconstitutional.  The argument was taken that Section 93 (5) (c) by making provision that in the event that the Labour Officer makes a determination in terms of the section the matter must be referred to the Labour Court for confirmation and for the establishing of a ‘restitution’ day by which the employer must pay or comply with the ruling of the Labour Officer that provision is inherently unfair to the employer.  The basis is that there is no provision set out for the right of an employer to appeal to the Labour Court against the labour officer’s ruling.

The further argument taken was that the provisions as presently cast will result in employers resorting to independent contracts or short term fixed contracts in a bid to avoid the route of engaging the NECs and the Labour Officer.  It was submitted that this would result in employees being short changed as they will no longer have security of employment.  On this basis Section 93 (5) (c) therefore infringed Section 24 of the Constitution which provides for the adoption of reasonable polices and measures.

It was also Respondent’s further submission that Section 93 (5a) also contravenes Section 56 (1) of the Constitution which provides for equality of all persons before the law and the right to equal protection and benefit of the law.

It was respondent’s contention that by being denied the right to appeal employers were being treated unfairly.  They were not being treated equally.  The determination by the Labour Officer is only made as against one party the employer. Further the employees who are parties in the original dispute before the Labour Officer are however excluded from the application procedure before the Labour Court. They are not granted an opportunity to present their case and in the event of the Labour Court dismissing the application by the Labour Officer the employees have not been afforded a right to appeal against that decision.

The point was also taken that Section 93 (5a) of the Labour Act  also violates the provisions in Section 69 (1) of the Constitution.  Section 69 (1) provides for the right to a fair hearing.  The basis is that in the application procedure the employer is not accorded the right to reply which is granted to the Labour Officer. This is in sharp contrast to the ordinary position in an appeal case where the employer has the right to reply following submissions by the employee party.

Finally the Respondent took the point that Section 93 (5a) infringed on the rights of the employer to have access to the courts in terms of Section 69 (3) of the Constitution. This, so it was submitted, is clear in that where the employer feel that the Labour Officer has misdirected himself in anyway the employer has no automatic right to approach the Labour Court. Rather the employer has to wait until the Labour Officer approaches the Labour Court for confirmation.  There is also no time limit  clearly set out within which the Labour Officer should act. On this basis clearly Section 93 (5a) contravenes the provisions of Section 69 (3) of the Constitution.

On the basis of the above submissions  Respondent, through counsel, requested that this court decline to confirm the award and instead refer the matter to the Constitutional Court for a determination on the constitutionality of Section 93 (5a) of the Labour Act [Cap 28:01]

The Applicant in counter submitted that Respondent was approaching the court with dirty hands. It was Applicant’s contention that Respondent should comply with his ruling first and then approach  the Constitutional Court thereafter.  The Applicant relied on the decision in  Econet v The Minister of Public Service, Labour & Social Welfare & Others 2016 ZWSC 31 where the Supreme Court in similar circumstances directed Econet to first purge itself by complying  with the High Court decision.  In its reply it was submitted on Respondent’s behalf that the Respondent did not have dirty hands.  The provisions in the Labour Act [Cap 28:01] are very clear that the ruling by the Labour Court only becomes enforceable upon confirmation by the Labour Court.  On the basis of provisions in Section 93 (5) (b) the award only becomes enforceable 30 days  after the ruling  is confirmed by the Labour Court.

The objection by the Applicant is without merit.  Firstly it is trite that the principle of dirty hands has no application in the Labour Court as it is not provided for by Law.  See CFI Retail (Private) Limited vs Eric Masese Manyika SC 8/2016.  Even if the principle was applicable the facts and circumstances in this case do not show that Respondent has dirty hands such as to be denied audience before the court.  Section 93 (5) (b) of the Labour Act clearly shows that the award becomes enforceable 30 days after this court’s  confirmation  of the ruling by the Labour Officer.  Section 93 (5a) (b) reads as follows:

(5a) A labour officer who makes a ruling and order in terms of subsection (5) (c) shall as soon as possible-

make  an affidavit to that effect incorporating, referring or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not being earlier than thirty days from the date that the application is set down to for hearing (the “”return day” of the application) to do or pay what the labour officer ordered under subsection (5) (c) (ii) and to pay the costs of the application.

It is clear in casu the ‘return day’ and ‘restitution day’ have not passed. The circumstances are distinguishable from the Econet case referred to by Applicant. The Respondent does not have dirty hands neither is it in contempt of court.

Constitutional Provisions

The Respondent submitted that the referral to the Constitutional Court was proper

and in accordance with Section 175 (4) of the present Constitution.  It was also

Respondent’s further submission that Section 175 (4) being a replica of the Section

24 (2)  of the old Constitution on the basis of the decision of Chihava & Ors vs The Provincial Magistrate Francis Mapfumo NO & The Prosecutor General CC 6/2015    this court can refer  any constitutional issue arising during proceedings before it provided the issue is not frivolous or vexatious.   Further the effect of such referral would be a formal determent of the proceedings before the lower court pending a determination of the constitutional issues so referred.

Section 175 (4) of the Constitution provides as follow:

(4) If a constitutional matter arises in any proceedings before a court, the person presiding over that court may and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or not she considers the request is merely frivolous or vexatious.

The threshold for a referral to the Constitutional Court is clearly set very high.  In order for such a request to be granted a party so requesting has to establish before the court that the request is not frivolous or vexatious. As to the meaning of the words ‘frivolous’ and ‘vexatious’ GUBBAY CJ (as he then was) in the matter of Martin v Attorney General & Another 1993 (1) ZLR 153 (SC) stated as follows:

“In the context of s 24 (2), the word “frivolous’’ connotes, in its ordinary and natural meaning, the raising of a question marked by a lack of seriousness; one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it.  The word “vexations”, in contra-distinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party, in full appreciation that it cannot succeed; it is not raised bona fide, and a referral would be to permit the opponent to be vexed under a form of legal process that was baseless.  See Young v Holloway & Anor [1895] P 87 at 90-91; Dyson v Attorney-General [1911] 1 KB 410 (CA) at 418; Norman v Mathews (1916) 85 LKB 857 at 859; S v Cooper & Ors 1977 (3) SA 475 (T) at 476 D-G; Fisheries Development Corporation of SA Ltd v Jrgensen & Anor 1979 (3) SA 1331 (W) at 1339 E-F.”

On the basis of the authorities the court is satisfied upon consideration of the issues the Respondent wishes to have placed before the Constitutional Court that the issues are by no means frivolous or vexatious.  The issues have to be fully ventilated before this court can proceed to determine the application before it.  For these reasons therefore the following order is granted.

The point in limine is upheld.

The constitutional issues raised, not being frivolous or vexatious, are duly referred to the Constitutional Court in terms of Section 175 (4) of the Constitution.

The application proceedings before this court are held in abeyance pending a determination of the issues before the Constitution Court.

There is no order as to costs.

Honey & Blackenberg, respondent’s legal practitioners