Lilford Nhandara (Labour Officer) v Petromoc Exor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/819/2016
HARARE, 4 NOVEMBER 2016 &
13 JANUARY 2017
CASE NO LC/H/LRA/199/2016
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/819/2016

HARARE, 4 NOVEMBER 2016 &			CASE NO LC/H/LRA/199/2016

13 JANUARY 2017

In the matter between

LILFORD NHANDARA (LABOUR OFFICER)			APPLICANT

Versus

PETROMOC EXOR						RESPONDENT

Before the Honourable Muchawa J

The Applicant in person

For the Respondent	R Mutasa (Legal Practitioner)

MUCHAWA J:

In this matter, the applicant came before me to seek confirmation of a ruling and order made in a matter involving the respondent and one Kennedy Chinosengwa (the claimant).

Before the applicant, the claimant was appealing against an unfair dismissal. A conciliation hearing was held and it was unsuccessful.

It was then agreed that the claimant would file its submissions in writing by 3 February 2016 and the respondent would file its on by 10 February 2016. Thereafter the claimant would file its replication by 17 February 2016. A hearing was tentatively set for 22 February 2016 at 12 p.m.

Contrary to the agreement, the claimant still had not filed its statement of claim by 26 February 2016. Such statement of claim was only then prepared sometime in March 2016.

Meanwhile, the respondent’s representatives, on 26 February 2016 had written to the applicant requesting that he invoke the provisions of Article 25 of the Arbitration Act [Chapter 7:15] which states:

“Unless otherwise agreed by the parties, if, without showing sufficient cause—

The claimant fails to communicate his statement of claim in accordance with article 23 (1), the arbitral tribunal shall terminate the proceedings.”

The applicant did not respond to this request but proceeded to determine the matter on the basis of the belated statement of claim on 1 August 2016 and ordered the reinstatement of the claimant without loss of salaries and benefits with effect from the date of dismissal.

Mr Mutasa, counsel for the respondent raised a preliminary issue that they had filed an application for rescission of judgment before the applicant which had still not been dealt with.

The applicant explained that such application for rescission was made after this application in casu was already filed here. He submitted that he had not found an appropriate provision giving him power to handle an application for rescission. This point is appreciated by the respondent and the parties sought the court’s direction on how to proceed. I reserved my ruling. This is it:

In casu the applicant as labour officer initially handled the dispute in terms of section 93 (1) as he attempted to settle such dispute through conciliation. As at 22 January 2016, the dispute remained unresolved and the applicant issued a certificate of no settlement.

In making the ruling and order now before me, the applicant proceeded to act in terms of section 93 (5)(c). He was not acting as an arbitrator nor did he refer the matter to arbitration. This is why that ruling and order have been brought for confirmation in terms of section 93 (5a) and (5b).

In making a ruling, the labour officer is enjoined to make a finding on a balance of probabilities as to whether or not the alleged unfair labour practice has happened and resolve the dispute of right or unfair labour practice by way of an appropriate order.

In balancing probabilities an adjudicating authority selects a conclusion which seems to be the more plausible or credible one from among several conceivable ones, even though that conclusion is not the only reasonable one. (See Ebrahim v Pittman N O 1995 (1) ZLR 176 (H) at p 184 E – 185F.

What I have before me is not a ruling made, upon a finding on a balance of probabilities. There were no other options placed before the applicant to enable him to carry out his function.

There does not seem to be a provision which allows a person in the applicant’s shoes to issue a default judgment, as he did. If he does so, then he fails to act in terms of section 93 (5)(c). There is also no provision for granting a rescission of judgment.

As the applicant is not acting as an arbitrator in exercising this function, then the Arbitration Act cannot be taken to apply to this dispute as provided in section 98 (2) which makes the Arbitration Act applicable to disputes referred to compulsory arbitration.

My role is to grant this application with or without amendment. I have however found that the applicant did not exercise his functions as set out in the Labour Act. The parties sought my directions and appropriate order. This is it:

The ruling and order of the applicant is set aside.

The matter is remitted back to a different labour officer who should proceed to resolve it in terms of section 93 (5)(c) of the Labour Act within thirty days of this order.

Makonore Attorneys, respondent’s legal practitioners