Legend Moyo (N.O.) v Delta Beverages & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/171/2021
HARARE, 30 SEPTEMBER, 2021
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/171/2021

HARARE, 30 SEPTEMBER, 2021		     CASE NO. LC/H/LRA/675/18(A)

AND 22 OCTOBER, 2021

In the matter between:

LEGEND MOYO (N.O.)							Applicant

Versus

DELTA BEVERAGES						 	1st Respondent

INNOCENT MAISIRI							2nd Respondent

Before The Honourable Kachambwa J;

For Applicant:					V. Ncube

For 1st Respondent:					K. Ncube

For 2nd Respondent:					E. Maponga

KACHAMBWA J:

This is an application by a designated agent, for the confirmation of his draft ruling. It is in terms of section 93 (5a)(a) and (b) of the Labour Act, Chapter 28:01 (the Act). The first respondent (the employer) raised two points in limine to the application. The first point is that the designated agent is not a labour officer and therefore may not apply for confirmation of his draft order in terms of section 93 of the Act. The second point is that the second respondent did not exhaust the local forum in terms of the workplace code of conduct.

It is pertinent to point out that the proliferation of arguments on preliminary points in the Labour court has become a complete business on its own. This has become a near hindrance to the efficient disposal of the cases on the merits. Parties rarely concede even on issues that are clear. It is a disturbing habit.

The Designated Agent’s Authority

The position of the designated agent to fall under section 93 (5a) (a) and (b) of the Act is discussed in the case of Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa SC 6/20. For now there is no other clearer authority and one would have thought that that case has laid bare the process for the application of section 93.

From pages 30 to 33 the court goes to great length to explain the process of section 93. The designated agent is indeed empowered with the same authority as the labour officer. Where the designated agent has authority over a case the labour officer is outsted. The requirements for a draft ruling to be amenable for registration are spelt out that-

1.	there must be an attempt to conciliate.

2.	the parties are not reconciled.

3.	the designated agent issues a certificate of no settlement.

4.	the designated agent makes a draft ruling.

The case is clear that the certificate of no settlement is proof that there was an attempt to conciliate. It must be there otherwise the ruling is disqualified for confirmation. The designated agent has to do one- not both i.e he/she either attempts to conciliate in which case a certificate of no settlement will be required or he determines the matter in which case the matter is finalized and is not for confirmation but appeal.

In the present case there is no certificate of no settlement. On that ground alone the matter does not fall under confirmation proceedings. Secondly this is a default decision. It was not decided on the merits as the other party did not put forward its side of the story. The designated agent did not consider any merits although that is otherwise the route he had taken by not issuing a certificate of no settlement. That being so means that the designated agent had taken a route that would lead to a definite decision. Now that this is a default decision it is for the “winning” party to execute it and not for the designated agent to apply for confirmation. The party in default has the opportunity to apply for rescission if it needs to. However for the purpose of the present case we also have to consider whether the matter was properly before the designated agent.

A designated agent may apply for confirmation of his/her ruling in terms of section 93 (5a) (a) and (b) if he/she has followed the correct procedure.

Exhaustion of Local Forum

There is a code of conduct at the workplace. It is common cause that the process was failed by the head of department who did not make his ruling. One hopes that he has been duly charged of some misconduct for this. In terms of section 10.6 “If the head of department is unable to resolve the grievance to the satisfaction of the employee the grievance will be brought to the attention of the Works Council”. This is the route to follow. By not making a decision the head of department had failed to resolve the grievance to the satisfaction of the employee. The employee must approach the Works Council.

It is also conceivable that the employee could raise a grievance against the head of department to the effect that he had not made a decision on the appeal before him and therefore was hindering the process. The employee could also apply for a mandumas against the head of department. Any of this should have forced the head of department to make a decision. But it is inconceivable as to how one could be allowed to behave like that and cause all this inconvenience that flows out of the company and into the courts. How the management has allowed this to happen is difficult to understand.

The second respondent has argued that section 101 (6) of the Act is applicable to the situation. It says that;-

“If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3) the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three”.

Paragraph (e) of subsection (3) of section 101 talks of the notification to any person who is alleged to have committed an act of misconduct, that proceedings are to be commenced. So if the matter is not determined within 30 days from that date any aggrieved party may take the matter to a labour officer. In the case at hand the matter was determined. It only stopped at an appeal stage. Therefore it does not qualify for reference to the labour officer. The matter has been pushed into a cul de sac but otherwise it was started within 30 days of notification.

Resolution

The second respondent could not take his matter to the labour officer. He has to exhaust the local forum first. Consequently the matter is also improperly before this court. The point in limine on exhaustion of local forum is upheld It is accordingly ordered that;

The application be and is hereby dismissed with costs.