Mbada Diamonds (Pvt) LTD V Stanford Mangwiro

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/563/2016
HARARE, 11 JULY 2016
CASE NO LC/H/445/2015
& 9 SEPTEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/563/2016

HARARE, 11 JULY 2016				         CASE NO LC/H/445/2015

& 9 SEPTEMBER 2016

In the matter between

MBADA DIAMONDS (PVT) LTD						APPELLANT

Versus

STANFORD MANGWIRO							RESPONDENT

Before the Honourable Maxwell J

For the Appellant	A Marara (Legal Practitioner)

For the Respondent     K Chisekereni (Legal Practitioner)

REASONS FOR RULING

MAXWELL J:

At the hearing of this matter I upheld a point in limine and indicated that reasons would follow. These are they:

The respondent was employed by the appellant as a security guard. He signed a contract for the period 1 November 2013 to 31 October 2014. He was notified that his contract would not be renewed. The respondent claimed under payment of salary from February 2013 to October 2014. The arbitrator held that there was underpayment of wages and ordered that the appellant pays an acting allowance for the period 5 February to 31 October 2014. The appellant appealed to this court.

In heads of argument and at the hearing of the matter, Counsel for the appellant raised the preliminary issue that the arbitrator had no jurisdiction to preside over NEC employees. Counsel made reference to section 101 (5) of the Labour Act [Chapter 28:01] which states that no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code. Counsel for the respondent had no meaningful submissions to make except to point out that the appellant does not dispute the substantive award and has not suffered any prejudice.

The issue of jurisdiction is a question of law and can be raised at any time. See Netherburn Mine v Muchakata 1996 (1) ZLR 153. The issue of prejudice is immaterial as parties cannot confer jurisdiction on an adjudicating authority where such jurisdiction has not been conferred on that adjudicating authority by statute. See Mutumwa v National Dairy Co-operative Limited 1996 (1) ZLR 341.

Section 101 (5) is very clear. It states:

“Notwithstanding this part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.”

Subsection (6) allows the labour officer to entertain a matter which is not determined within thirty days of the notification that proceedings are to be commenced against a party alleged to have breached on employment code. It has not been submitted that the proceedings in this case fall under subsection (6) of section 101 of the Labour Act [Chapter 28:01]. As such it follows that the proceedings were improperly brought before the labour officer and subsequently the arbitral award is based on an improper procedure. The statement of Lord Denning in McFoy v United Africa Company Limited (1961) 3 ALL ER 1169 at 1172 is apposite.

“If an act is void, then it is in law a nullity … Every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

The arbitral award therefore cannot stand. It resulted from a flawed process in which the labour officer had no jurisdiction. Accordingly the preliminary issue succeeds.

The following order is therefore appropriate.

The arbitral award dated 6 March 2015 by Honourable K Pisirai be and is hereby set aside.

Mutamangira & Associates, appellant’s legal practitioners

Zvinavakobvu Law Chambers, respondent’s legal practitioners