Mercy Dare v Farm & City Centre

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/706/16
HELD AT HARARE 8 JULY 2016
CASE NO: [NOT SPECIFIED]
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/706/16

HELD AT HARARE 8 JULY 2016				CASE NO LC/H/LRA/53/16

& 4 NOVEMBER 2016

In the matter between:

MERCY DARE				Applicant

And

FARM & CITY CENTRE			Respondent

Before The Honourables Makamure & Muchawa, JJ

Applicant			In person

For Respondent		Mrs T Manjonjo (Legal Practitioner)

MUCHAWA J:

This matter came before us as an application made in terms of section 93 (5a) and (5b) of the Labour Act [Chapter 28:01], as amended.  An order confirming the ruling of the applicant was sought.

The respondent opposed this application and filed a counter application seeking a referral of certain matters to the Constitutional Court.

The applicant is a labour officer who presided over a labour dispute pitting the respondent against two former employees, one Isabella Rutsito and Leo Shuro (the claimants).

The claimants were employed by the respondent at different times in divers capacities.  Both contracts of employment were terminated on notice, on 2 July 2015 at which point M Rutsito had served for 14 years whilst Mr Shuro had served for 26 years.  The claimants were claiming payment of compensation for loss of employment in terms of section 12 (4b) of the Labour Act as amended.

Even though the respondent opposed the claim for payment, the applicant found that the claimants were entitled to compensation for loss of employment and ordered that they be paid $2 149 and $4 966 respectively.

Application for confirmation

In the application for confirmation, the applicant moved the court to confirm her ruling as she had awarded the claims based on the provisions in section 12 (4a) and (4b) which state that not employer shall terminate a contract of employment on notice unless certain conditions are met and where such notice is given under subsection (4a) then the provisions in section 12 C relating to a minimum retrenchment package would apply.

The respondent’s Mrs Manjonjo submitted that the ruling by the labour officer was wrongly made and should not be confirmed because though a constitutional issue was raised before her, the applicant refrained from pronouncing a ruling on it.  The stance taken by the applicant of not ruling on the constitutional issue is said to be correct but proceeding to then order that respondent pays the minimum retrenchment package is what respondent takes issues with.  It is averred that the correct position is that the application for confirmation be held in abeyance pending the decision of the Constitutional Court on the issues sought to be referred to it in the counter application.

The Counter Application

In the counter application, Mrs Manjonjo, counsel for the respondent averred that they seek a referral of certain issues to the Constitutional Court in terms of section 175 (4) of the Constitution.

It is argued that section 18 of the Labour Amendment Act No 5 of 2015 in providing for the retrospective application to section 12 of the Labour Act in relation to every employee whose services were terminated on three months’ notice on or after 17 July 2015 is unconstitutional.

Miss Manjonjo argued that this provision which was relied on by the applicant to award compensation for loss of employment infringes sections 3 (2) (k) and 56 (1) of the Constitution.

The respondent also takes issue with section 93 (5) of the Labour Act, as amended.  It was argued that the procedure introduced in section 93 (5a) and (5b) makes the labour officer an interested party by turning him from an adjudicator to a litigant.

This same procedure is alleged to take away the right of appeal from the losing party.

Mrs Manjonjo contended that this very procedure was followed by the applicant and it infringes section 169 (1), 68 (1) and 69 (2) of the constitution.

The applicant submitted that in proceedings to issue the ruling and order, she was upholding the purpose of the Labour Act which is to ensure speedy and expeditious resolution of labour matters.   A referral of the matter of the Constitutional Court was alleged to be likely to cause a delay in the claimants enjoying justice and the respondent was alleged to be employing delaying tactics.

Disposal

The counter application, due to the prayer sought of staying the main application pending the decision of the Constitutional Court is best dealt with as a point in limine.  I will deal with the counter application first.

Section 175 (4) of the Constitution provides that where a constitutional matter arises in any proceedings before a court, the person presiding over the matter may, and if so requested by a party to the proceedings, must refer the matter to the Constitutional Court unless the request is considered to be merely frivolous and vexatious.

I am therefore enjoined to make the inquiry whether this request is merely frivolous and vexatious.  “Frivolous” connotes a lack of seriousness or a request that is devoid of merit, and “vexatious” means a question put forward to cause annoyance and which is not raised bona fide.  Martin v AG & Anor 1993 (1) ZLR 153 (S) at 157 C – F.

The issues raised are genuine issues on which the Constitutional Court is yet to make a pronouncement.

One cannot seriously  say that the question whether the law giver’s intention in providing for retrospectivity in section 18 of the Amendment Act is to take away rights such as the respondent’s right to give notice without paying a minimum retrenchment package, is a violation of section 56 (1) as read with section 3 (2) (k) of the Constitution.  These provide for equality before the law and the right to equal protection of the law as well as due respect for vested rights, respectively.

I believe the issue is with merit and has been raised bona fide.

As to the legality of section 93 (5) the issues arising from the new procedure cannot be dismissed as frivolous and vexatious.

I accordingly uphold the counter application and order as follows

The counter application by the respondent for referral of the Constitutional issues set out in paragraphs 2.1 and 2.2 hereunder is granted.

2.1 Whether or not section 18 of the Labour Amendment Act No 5 of 2015 violates sections 56 (1) and 3 (2) (k) of the Constitution of Zimbabwe, 2013, and should therefore be struck down.

2.2 Whether or not section 93 (5) of the Labour Act, as amended, is in contravention of sections 68 (1), 69 (2) and 169 (1) of the Constitution of Zimbabwe, 2013.

3.	The application in the main be and is hereby stayed pending the decision of the Constitutional Court.

………………………..

MUCHAWA J

…………………….			I agree

MAKAMURE J

Lunga Gonese Attorneys, respondent’s legal practitioners