Judith Chiwire v Zimtile (Pvt) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/646/16
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO.  LC/H/646/16

CASE NO. LC/H/1075/14

HELD AT HARARE

ON 12 OCTOBER 2016 & 21 OCTOBER 2016

BEFORE THE HON. MR. JUSTICE L.M. MURASI

IN THE MATTER BETWEEN:-

JUDITH CHIWIRE						APPELLANT

AND

ZIMTILE (PVT) LIMITED					RESPONDENT

(IN CHAMBERS)

MURASI J.,

I am dealing with this matter in terms of section 89(2) (a) of the Labour Act (Chapter 28:01). The parties to this matter have filed the requisite documents. The Registrar wrote to the Appellant informing her of the need to pay the Sherriff’s costs to enable the matter to be set down. There was no response to this letter. The matter has thus been referred to me for directions. As stated earlier, I have noted that both parties have filed their heads of argument and therefore I will proceed to determine the matter.

Appellant is appealing against the retrenchment award made by the Minister. The brief facts of the matter are as follows. Respondent made proposals to the appellant to retrench her and reduce operating costs. Discussions took place but the parties were not agreed on the specific retrenchment provisions. The matter was referred to the Retrenchment Board which subsequently made recommendations to the Minister. The Minister made the following award:

Service pay				2 months’ salary for every year worked

Severence pay			2 months’ salary

Relocation allowance		1 month’s salary

Medical aid				3 months’ salary

Payment plan			within 6 months

The appellant is dissatisfied with the award and has approached this Court for relief. The appellant’s ground of appeal is as follows:

“The Minister’s terms and conditions for the Appellant’s retrenchment are gross (?) and outrageous in their defiance of logic and common sense, in light of the Appellant’s personal circumstances and submissions made before the Retrenchment Board.”

I will deal with the Appellant’s submissions on the merits first. Appellant avers that the Minister did not take into account the company’s ability to pay as in the case of medical aid cover where the company had offered to pay six months medical aid cover, the Minister had only awarded there months’ worth of medical aid cover. The other issue which Appellant raised was the relocation allowance. It was stated that whilst several quotations had been submitted, the Minister had allowed only one month’s allowance without taking into consideration the quotations that had been submitted. It was further submitted that the Minister had not taken into account that the appellant was disabled and would not be able to easily find gainful employment. Further, appellant attacked the period in which the respondent was supposed to pay the retrenchment package. It was argued that there would be no financial difficulty in paying the package and thus the period of six months given by the Minister was unreasonable.

The respondent raised two points in limine. The first is that the appellant should have brought this matter by way of review and not appeal. The second was that the Court did not have the jurisdiction to determine the appeal. The appellant responded to these points in her heads of argument filed by her legal practitioner. Appellant fervently argues that the matter is properly before the Court.

It is trite that where a preliminary point is raised, the court is enjoined to make a determination on that point before proceeding to deal with the merits of the case. (See generally Heywood Investments (Private) Limited T/A GDC Hauliers vs Pharaoh Zakeyo SC 32/13) The question to be answered is whether the Act allows an appeal to be lodged with the Court against the Minister’s decision made in terms of section 12C of the Act. The Minister’s decision was made prior to the subsequent amendment of the Labour Act by Act 5 of 2015. The Minister’s powers, then, were derived from the provisions of section 12C (9) and (11) with sub-section (10) having been earlier repealed by Act 7 of 2005. The provisions in this section are clear. The legal issue is therefore whether a person aggrieved by the Minister’s decision made in accordance with the provisions is entitled to appeal to the Labour Court. Section 12C itself is silent.

One would then have to consider the provisions of the Act and determine whether the Court would have jurisdiction to entertain the appeal. Precedent has clearly stated that the Labour Court is a creature of statute and its jurisdiction and functions are to be found within the four corners of the statute. (See National Railways of Zimbabwe vs Zimbabwe Railways Artisans Union & Others 2005 (1) ZLR 341 (S)) The jurisdiction of the Labour Court is provided in section 89 thus:

“89 Functions, powers and jurisdiction of the Labour Court

(1) The Labour Court shall exercise the following functions-

(a) hearing and determining applications and appeals in terms of this Act or any other enactment; and

(b) hearing and determining matters referred to it by the Minister in terms of this Act; and

(c) referring a dispute to a labour officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the Labour Court considers it expedient to do so;

(d) appointing an arbitrator from a panel of arbitrators referred to in subsection (6) of section ninety-eight to hear an application;

(d1) exercise the same powers of review as would be exercisable by the High Court in respect of labour matters;

(e) doing such other things as may be assigned to it in terms of this Act or any other enactment..

A reading of the unambiguous provisions shows that the section reveals that the Labour Court’s jurisdiction is limited to applications and appeals that are provided for in terms of the Act. Where the statute refers to ‘in terms of any other enactment’ one has in mind specific legislation which gives the Labour Court jurisdiction to only deal with those matters referred in terms of the particular legislation. For example, the Public Service Regulations, Statutory Instrument 1 of 2000 allows litigants to approach the Labour Court pursuant to decisions made by the Disciplinary Authority.

It should be further noted that the Labour Act clearly provides for litigants to approach the Labour on appeal where such litigant is dissatisfied with the decision of an administrative body. For example, where any person is aggrieved by the decision of the Registrar, he/she may appeal to the Labour Court in terms of section forty seven of the Act. Section ninety-eight allows a litigant to appeal to the Labour Court where he/she is dissatisfied with the decision of an arbitrator. In casu, the original section 12C does not provide that a litigant may appeal to the Labour Court where he/she is aggrieved by a decision of the Minister.

I am inclined to agree with the views expressed by the respondent in this instance that what the appellant should have done is to approach the Court by way of review. As the statute stands, I am of the view that there is no provision for approaching the Court on appeal. To this I am fortified by the views expressed by McNALLY JA (as he then was) in Gwalazimba vs PG Merchandising Ltd & Anor 1993 (2) ZLR 215 (S). In that case the court was dealing with a matter that had been referred to the Labour Relations Tribunal (the Labour Court’s predecessor). In that matter the respondent had argued that the Labour Relations Tribunal did not have jurisdiction to hear the appeal against the Minister as there was no provision for an appeal from the Minister’s decision and that the Minister could only be taken on review to the High Court. (This was before the amendment of the Act which subsequently gave the Labour Court review powers similar to those of the High Court in labour matters.) The Court had this to say at page 216 C-E:

This submission is undoubtedly correct. The Tribunal is a creature of statute and can only hear appeals as provided for in the Labour Relations Act 16 of 1985. Section 106 of the Act (unamended by Act 12 of 1992 because the Tribunal hearing was over seven months before Act 12 of 1992 came into effect) provides specifically for it hear appeals from any determination, direction or decision of the Minister in terms of ss 25, 55, 84 and 86 of the Act. None of these is relevant.

The section further provides for it to hear and determine appeals ‘in terms of any section of the Act where an appeal lies to the Tribunal.’ Own emphasis)

The Regulations to which I have referred above, contained in SI 371/1985, do not provide for an appeal under s 2, although they do so provide in matters arising under s 3. Nor is any general provision for an appeal made in s 17 of the Act, in terms of which these Regulations were made.”

The Regulations referred to above were later to be included in the Act. What is clear from the above-cited paragraph is that the Labour Court is a creature of statute. It cannot wander outside the four corners of the statute to look for jurisdiction where this is not provided in the Act. I have already enumerated the provisions which exist in the Act which provide for appeals to the Labour Court. The erstwhile section 12C does not provide for such an avenue to the appellant. Even if I were wrong in making the above finding, I would still be bound by the principle of precedent. This principle was described by CAMERON JA in True Motives 84 (Pty) Ltd v Mahdi [2009] Zasca 4 para 100.4 in the following manner:

“The doctrine of precedent, which requires courts to follow the decisions of coordinate and higher courts in the judicial hierarchy, is an intrinsic feature of the rule of law which is fundamental to our Constitution. Without precedent there would be no certainty, no predictability and no coherence. The courts would operate in a tangle of unknowable considerations, which all too soon would become vulnerable to whim and fancy. Law would not rule. The operation of precedent and its proper implementation, are therefore vital constitutional questions.”

It is thus my considered view that the Act does not provide an appeal freeway where a litigant is dissatisfied by the decision of the Minister which decision would have been made in terms of section 12C. The appeal, therefore is improperly before the Court. The first point in limine ought to be upheld. It is therefore not necessary to consider the other points raised in this appeal.

In the result and for the afore stated reasons the Court makes the following Order:

1. The respondent’s point in limine is upheld.

2. The appeal, being improperly before the Court, be and is hereby struck off the roll.

3.  There is no order as to costs.