Priscillah Mgazi v Grain Marketing Board & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/136/2021
HARARE, 1 JULY 2021
CASE NO. LC/H/27/20
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/136/2021

HARARE, 1 JULY 2021	                                      CASE NO. LC/H/LRA/03/21

AND 10 SEPTEMBER 2021

In the matter between:-

PRISCILLAH MGAZI						Applicant

And

GRAIN MARKETING BOARD					1ST Respondent

And

CONSTANCIA DZENGA						2ND Respondent

Before Honourable B.S. Chidziva, Judge

Applicant				In person

For 1st Respondent		Mr S.  Bhebhe (Legal Practitioner)

For 2nd Respondent		Mr S. Hofisi (Legal Practitioner)

CHIDZIVA, J:

This is an application for a Draft Ruling of 27th January by Labour Officer

P Mgazi. The draft ruling is couched as follows:

“In light of the above I make the following ruling.

The respondent is be and hereby ordered to reinstate the claimant without loss of salary and benefits.

The reinstatement is with effect from date of unlawful termination of contract.

I so determine.”

The brief facts of the matter are that the 2nd Respondent was employed by the 1st Respondent on a five year fixed term contract for the period 1 July 2016 to 30 June 2021. The contract was however, terminated on notice and the notice expired on 31 December 2021. Aggrieved by this termination the Respondent then approached the Applicant with a claim of unlawful dismissal.

When the parties appeared before this court Mr Bhebhe submitted that the 2nd Respondent had failed to file her response and Heads of Arguments within 10 days of applicant’s application The 2nd Respondent failed to give reasons for non-compliance with the rules and she was duly barred.

The Applicant in her submissions applied for confirmation of the proceedings. She however stated that she had an oversight on the draft ruling by not stating an alternative for reinstatement.

Mr Bhebhe who was representing the 1st Respondent submitted that:

(i)	Applicant had granted an incompetent relief in that she ordered

reinstatement without the determination for damages in lieu of reinstatement and failed to determine the issue of damages which was before her. Therefore this court cannot grant, amend or confirm the drat ruling.

(ii)	The applicant also based her finding on the fact that 1st Respondent had relied on a wrong provision, an issue which was not raised or argued by the parties.

What is to be decided by this court is whether or not.

(i)	The applicant based her findings on an issue which was not before her.

(ii)	Applicant granted an incompetent order.

Issue not Raised by the parties

It was the applicant’s finding that 1st Respondent had used a wrong section in terminating the claimant’s contract and yet this issue was not before the court.

When the parties appeared before the applicant the 2nd Respondent’s argument was whether or not the 1st Respondent could ignore the terms and conditions in the contract of employment and resort to using section 12 (4) (a) of the Labour Act. The 2nd Respondent also implored the Tribunal to decide whether notice of termination was invalid for want of compliance with the contract of employment.

The 2nd Respondent’s contract of employment was terminated in terms of Section 124 (a) of the Labour Act. She was given 3 months’ notice. Applicant stated that section 72 (4) (a) deals with termination on three months’ notice of contracts without limit on contracts of two years or more.

She went on to state that section 12 (4a) (c) regulates termination of a fixed term contract on notice. According to her finding the 1st Respondent mixed up the two sections although section 12 (4a) (c) is the one provide for in the new Labour Amendment No. 5 of 2015.

The Applicant in my view did not make any findings on the issues that were raised by the parties. She went on a frolic of her own to address one issue that had not been raised by the parties. I therefore agree with the 2nd Respondent’s submission that applicant did not make a finding on an issue that had not been raised by the 2nd Respondent.

It is a trite principle of law that the function of the court is to determine issues placed before it. This was stated in the case of CENTRAL AFRICAN BULDING SOCIETY VS PENELOPE DOUGGLAS STONE & ORS SC 15/21 where the court held that:

“It is trite that the court’s duty is to determine disputes as presented before it and not to go on a frolic of its own.”

The same sentiments were expressed in the case of Nzara & Ors v Kashumba & Ors Sc 18/18 where it was also held that:

“This position has become settled in our law. Each party places before a prayer he or she wants the court to grant in its favour.”

In so far as this issue is concerned I find merit in the 2nd Respondent’s argument.

In competent Order:

The applicant in her submissions stated that she had an oversight on the draft ruling by not stating an alternative of damages in lieu of reinstatement. In the case of Mandiringa & Ors v National Social Security Authority 2005 (2) ZLR 329 the court held that;

“An award that orders the reinstatement of the applicant without awarding a specified amount in damages in lieu of the reinstatement is incomplete and consequently incompetent.”

In the absence of an alternating order of damages in this case it therefore means that the order is incompetent.

In the case of Air Zimbabwe (Pvt) Ltd v Mateko & Ors SC 180/20 it was held that:

“The purpose of the confirmation proceedings is to test the substantive correctness or fairness of the draft ruling.”

In my view the applicant failed to determine the issues that were brought before her. Furthermore she made an incompetent order. In the circumstance, therefore the court finds that the application lacks merit.

It is therefore ordered that the application for confirmation be and is hereby dismissed with costs.

Chirorwe & Partners, 2nd Respondent’s Legal Practitioners

Kantor & Immerman, 1st Respondents’ Legal Practitioners