Ranganai Simon and Two Others v Centra Feeds

### Preamble
JUDGMENT LC-H-618-14
IN THE LABOUR COURT OF ZIMBABWE
HARARE 9TH SEPTEMBER, 2014
LC/ORD/H/79/13
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IN THE LABOUR COURT OF ZIMBABWE

HARARE 9TH SEPTEMBER, 2014 			LC/ORD/H/79/13

AND 26TH SEPTEMBER, 2014

In the matter between;

RANGANAI SIMON AND TWO OTHERS 		APPLICANTS

VS

CENTRA FEEDS 						RESPONDENT

Before the Honourable B.T Chivizhe, J.

For Applicants: Mr T. Masomera (Trade Union)

For Respondent: Mr N. Chikama (Human Resources Manager)

CHIVIZHE, J.

The matter was placed before me as an application for an order in terms of Section 93 (7) of the Labour Act [Cap 28:01]. Whereas initially the Applicants were three one of the Applicants withdrew his matter. The two Applicants before the court were Ranganayi Simon and Cosmas Bhasera.

In his founding affidavit the 1st Applicant, Ranganayi Simon averred on oath that; he was a former employee of the 1st Respondent. The 2nd Respondent is a Designated Agent for National Employment Council for the Food Industry. He was the conciliator in the two disputes that have given birth to the present application.

The 1st Applicant averred that he, along with the 2nd Applicant were dismissed by the Respondent following disciplinary proceedings under Statutory Instrument 15 of 2006. The two charges levelled were ‘acts of conduct inconsistent with the expresser implied conditions of employment contract’ and ‘wilful disobedience to a lawful instruction’. The Applicants had appealed internally to the Managing Director who dismissed their appeal. They had then referred their appeal to the National Employment Council Designated Agent for the Food Industry. They had also referred a second dispute to the same Designated Agent being a complaint of an unfair labour practice. The parties had agreed that both disputes would be conciliated before the same Designated Agent.

1st Applicant further averred that the parties failed to agree on any of the issues. The Designated Agent having then failed to issue a certificate of no settlement as required under the provisions of the Labour Act and further, having failed to refer the matters to arbitration the Applicants were bringing an application before the Labour Court in terms of Section 93 (7) (b) of the Labour Act. They were consequently seeking in relief an order in terms of Section 89 (2) of the same Act. The draft order sought reads as follows;

IT IS ORDERED THAT

The dismissal of Ranganai Simon and Cosmas Bhasera be and is hereby set aside.

The 1st Respondent is ordered to reinstate Ranganai Simon and Cosmas Bhasera to their original positions without loss of pay and benefits with effect from the date of dismissal.

The short time working agreement was not approved by the workers and therefore 1st respondent must pay the full salaries of Ranganai Simon, Cosmas Bhasera and Taurai Vandira for the period of illegal short working hours, minus what was already paid.

1st Respondent must case immediately the unfair labour practice of intimidation of employees and must recognise the freedom of employees to join trade unions of their choice and not interfere in the trade union business of employees.

The Respondent in its response to the application raised the point that the matter was prematurely before the Labour Court as the matter was still pending before the NEC Designated Agent for the Food Industry. The Court consequently raised with the Applicants the jurisdiction issue, as to whether the matter was properly before the Labour Court.

In elaboration of the point the Applicant’s Representative relied on the provisions in the Act. He submitted that the requirements under Section 93(7)(b) of the Labour Act had been fully met. The requirements were essentially three, firstly the application had to be made where the Designated Agent or Labour Officer had failed or refused to issue a Certificate of No Settlement. The second requirement which is in the alternative was whether she or he had failed to refer the matter to arbitration for whatever reason. Thirdly the parties must have failed to agree to an extension in the case. It was his submission that in casu, all three requirements had been met. The dispute was referred on the 9th of August, 2013. Up to the time of filing of the present application i.e. 11th of November, 2013 the Disciplinary Agent had not issued a Certificate of No Settlement, neither had he referred the matter to compulsory arbitration. On that basis the Labour Court had jurisdiction to deal with the matter.

The Respondent in reply submitted that on the date of hearing the Designated Agent had, after hearing the parties submissions, directed that the parties attempt an out of court settlement. The parties were for that purpose given two weeks to meet and attempt a resolution of the issues. They were to, upon failure to settle, revert back to the Designated Agent. It was the Respondent Representative’s submission that the parties had however failed to settle as directed by the Designated Agent. The Respondent had advised telephonically the Designated Agent who had then invited the parties to appear before him. The parties had however not done so. The Applicant, had according to the Respondent deliberately refused to go back to the Designated Agent. The application was thus improperly before the Labour Court.

The Applicant’s Representative in counter submission conceded that the Designated Agent had indeed directed an out of court settlement. It was his submission however that the parties had failed to meet as the Respondent through the Human Resources Manager were not keen to deal with the Representatives’ Trade Union as they did not recognise the Trade Union. The Designated Agent had been advised of the failure to settle. It was the Representative’s submission that even in the absence of any evidence on record to show that the parties had approached the Designated Agent for a second notification to be issued the Labour Act provision were however very clear. At the expiry of 30 days and in the absence of an agreement by the parties to an extension either party can approach the Labour Court directly in terms  of  Section 93 (7) (b). It was his submission that the application therefore was properly before the Labour Court.

Section 93 (7) (b) of the Labour Act provides as follows;

“(7)	If, in relation to any dispute or unfair labour practice

(b) 	a labour officer refuses, for any reason, to issue a

certificate of no settlement in relation to any dispute or unfair labour practice after the expiry of the period allowed for conciliation under subsection (4); any party to the dispute may, in the time and manner prescribed, apply to the Labour Court – (i) for the dispute or unfair labour practice to be disposed of in accordance with paragraph (b) of subsection (2) of section eighty-nine, in the case of a dispute of interest; or

Law Development Commission, Zimbabwe

(ii) for an order in terms of paragraph (c) of

Subsection (2) of section eighty-nine, in the case of a dispute of right.”

There are therefore three important considerations under which an Applicant can be referred to the Labour Court.

A labour officer has to have refused for any reason to issue a certificate of settlement.

The period of conciliation has to have expired.

Any extension period granted in the matter ought to have also expired.

It is clear in casu that the thirty day period had clearly expired. No period of extension having been granted that condition is inapplicable in this matter. From the parties submissions it is clear that the parties have not referred the matter back to the Designated Agent after failure to settle the matter. There is nothing on the record to show that matter went back to Designated Agent. The Designated Agent clearly has not refused, for whatever reason to issue a certificate of no settlement in the matter. Indeed no such averment has been made by the Applicants. The argument raised by the Applicant that provisions in Section 93 (7) (b) allow for an application directly  to the Labour Court upon expiration of 30 days does not in my view hold water. The section provides for an application to be made where the circumstances clearly show the Labour Officer, in this case the Designated Agent, has  refused, for whatever reason, to issue a Certificate of No Settlement.

It follows therefore that the application is improperly before the court. The matter is still pending before the Designated Agent. The application clearly stands to be dismissed. Because of the time this has taken the Designated Agent should proceed to either settle the matter or refer in terms of Section 93.

It is accordingly ordered as follows:

The application is dismissed with no order as to costs.

The matter is hereby remitted to the same Designated Agent to proceed to either settle the matter or refer the matter to arbitration in terms of Section 93 within 14 days of the date of this order.