Regiment Murira and Edgar Kutsawa v Unilever Zimbabwe (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/170/2020
HARARE, 29 JULY 2020
CASE NO.LC/H/188/19
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO.LC/H/170/2020

HARARE, 29 JULY 2020 			           CASE NO.LC/H/188/19

AND 31 JULY 2020

In the matter between:-

REGIMENT MURIRA						1ST APPELLANT

EDGAR KUTSAWA							2ND APPELLANT

And

UNILEVER ZIMBABWE (PRIVATE) LIMITED     		RESPONDENT

1ST APPELLANT		-	IN PERSON

2ND APPELLANT		-	IN PERSON

FOR RESPONDENT  	-	 MR D. MATAWU

MURASI, J:

This is an appeal against the decision of MS MAGANI N.O handed down on 27 August 2019.

A brief background of the matter is pertinent.

Appellants were employed by the respondent.  Following the purported termination of their employment contracts on retirement, they approached the Labour Officer.  When conciliation failed, the matter was referred to arbitration.  The arbitrator found in favour of the appellants.  Respondent appealed to the Labour Court.  This Court, in a judgment by CHIVIZHE J, dismissed the appeal and upheld the arbitrator‘s decision.  This meant that respondent was supposed to pay to the appellants monies due to them as determined by the arbitrator.  Applicants were paid these sums of money in 2017.

Applicants later “discovered” that the respondent had not paid some of the monies due to them.  They filed a complaint of unfair labour practice.  The parties approached the Designated Agent who attempted to conciliate the matter.  When this failed, the Designated Agent issued a Certificate of No Settlement and proceeded to make a ruling on the matter.  The appellants are dissatisfied with this determination and have appealed to this Court.

In its response, respondent raised a point in limine.  This was to the effect that the matter was improperly before the court.  The affidavit filed by TAWANDA ANDREW CHIURAYI on behalf of the respondent which is at page 4 of the record, reads in relevant part:

“IN LIMINE

3. The Labour Act does not make provision for an appeal against a draft ruling which is against the employee.

4. The Labour Court, therefore, does not have jurisdiction to deal with this appeal and the appeal must be dismissed with costs”

At the commencement of the proceedings Mr Matawu	who appeared for the respondent, stated that he was still raising the preliminary point as indicated in the Notice of Response.  He reiterated the fact that a draft ruling was not appealable.  He further submitted that the reference made by appellants to the Drum City in their answering affidavit did not assist them as that case did not assist them did not specifically state that a party who was an employee and had a draft ruling against him/her could lodge an appeal.  He further argued that the Labour Act did not provide for such a procedure.  This, he insisted, showed that the appeal in question was improperly before the Court.  The Court therefore had no jurisdiction to entertain the matter.

The appellants were given an opportunity to respond to these submissions.  First appellant was the spokesperson for the two appellants.  This was confirmed to the Court by the second appellant.  When asked to respond, first appellant dwelt on the genesis of the dispute between respondent and them.  First respondent made no attempt to address his mind to the issue at stake.  The Court repeatedly referred first appellant to what had been stated by respondent’s Counsel, but no submissions in respect of the preliminary point were forthcoming.  First appellant was content to relate to the Court what had transpired and which had led to the present proceedings.  He informed the Court that the documents filed on their behalf were prepared by his nephew who had legal training but was not a legal practitioner.  He could not inform the Court whether he understood what was contained in those documents.  What he knew was that what they had to argue was the issue of time.  To this, the Court understood him to mean prescription which was the main issue they had appealed against.  First appellant did not therefore address the Court on the point in limine raised by respondent’s Counsel.

Sensing that, first appellant’s responses could prejudice second appellant, the Court also requested him to make submissions at regards the point in limine raised by respondent’s Counsel.  The Court was of the view that even though second appellant had agreed with first appellant that the latter be the spokesperson he could be in a position to address the issue.  Alas, he was in no better position.  The Court read the Designated Agent’s ruling and the documents filed by the two appellants and inquired of second appellant whether he appreciated the nature of the proceedings before the Court.  Second appellant replied in the positive.  The Court thereafter requested the second appellant to make submissions in light of the explanation given.  Second appellant was unable to do so.  The Court had therefore to record that he had no submissions to make.

The Court then reverted to first appellant hoping that he had understood the explanation.  He failed to make any submissions.  This means that there were no submissions forthcoming from the appellants as regards the preliminary point raised by the respondent.

Respondent has raised the issue of jurisdiction.  This issue has been the subject of interpretation in many a precedent.  In MEDICINES CONTROL AUTHORITY OF ZIMBABWE V NATHAN TORONGA AND OTHERS SC10/17, GWAUNZA JA (as she then was) had this to say at page 7 of the cyclostyled judgment:

“Jurisdiction in simple terms can be defined as the power or competence of a particular court or tribunal to hear and determine an issue brought before it.  A plea of jurisdiction therefore attacks the competence of a court or tribunal to hear and determine the matter.  It follows that a Court or tribunal that has no jurisdiction, for

whatever reason, to entertain a matter is not in a position to go beyond the question of its jurisdiction to determine any other issue to do with the dispute in question.”

In simple language, the above on joins a Court or tribunal to determine whether it is endowed with the requisite jurisdiction before proceeding to deal with the merits of the matter.  Respondent in casu has averred that the determination made by the Designated Agent was a draft ruling against the employee.   It was averred that a draft ruling is not subject to appeal in the circumstances.

The issue to be determined is whether this was a draft ruling as averred by the respondent.  The procedure was eloquently addressed in ISOQUANT INVESTIMENTS (PRIVATE LIMITED) t/a ZIMOCO V MEMORY DARIKWA CCZ 6/20.  The Learned Chief Justice had this to say at page 30 of the cyclostyled judgment:

“A designated agent may only exercise one power over a dispute.  He or she may redress the dispute or attempt to redress it.  He or she cannot do both.  If he or she chooses to redress the dispute by hearing and determining the issues in dispute, he or she cannot at the same time attempt to redress the dispute.  It is clear from the provisions of s63 (3a), as read with s93 (1), of the Act that a designated agent can only proceed in terms of s93 of the Act if he or she has not redressed the dispute.  He or she would be attempting to settle the dispute through conciliation.  There can be no attempt to settle a dispute which has been addressed.”

What does this imply?  There should be a clear paper trail that the Labour Officer or designated Agent proceeded to deal with the matter in terms of s93 of the

Act.  This would be evidence that the parties subjected themselves to the process of conciliation.  There should be evidence that this process failed by the resultant issuing of a Certificate of No Settlement.

“After properly discharging his/her functious as a conciliator in terms of s93 (1) of the Act, a Labour Officer (read designated agent) can issue a certificate of no settlement to the parties to the dispute or unfair labour practice in terms of no settlement is issued to the parties to the dispute or unfair labour practice when conciliation has failed or at the end of the thirty day period or any further period agreed between the parties”.  (Page 19)

The further procedure is explained at page 22. It is explained thus:

“Parties cannot agree to have a dispute of right dealt with other than in terms of s93 (5) (c) of the Act.  The reason is that s93 (5) (c) of the Act places the responsibility of making a ‘draft ruling’ on the Labour Officer (read designated agent).  He or she is required to make a ‘draft ruling’ on the merits of the disputes as gathered from the conciliation process and after issuing a certificate of no settlement.  At that stage the matter would no longer be entirely in the hands of the parties whom the Labour Officer would have been assisting to reach a settlement of the dispute by agreement”

A reading of the record shows that there is a certificate of no settlement at page 17 which was issued by the Designated Agent on 18 July 2019.  The certificate cites the parties to the dispute.  It shows that the dispute was “Referred to conciliation on 08 May 2019.  The certificate also shows that the dispute “remained

unresolved as 08 July 2019”.  Prima facie, the document shows that the dispute was referred to conciliation.  This is evidence that the Designated Agent was utilising the route prescribed in s93.  As stated in the ISOQUANT CASE supra, the Designated Agent issued a certificate of No Settlement as prescribed in s93 (3) of the Act.  The Designated Agent thereafter made a “draft ruling”.  A Labour Officer would be required to show evidence that he/she consulted  his/her senior before proceeding to make the draft ruling.  In my view the decision made by the Designated Agent in casu would fall under the process of a “draft ruling” both in terms of the statute and precedent.  Having found that the this decision falls under the “draft ruling” category, the next issue to be decided is whether a party to the disputes is capable of appealing against the ruling.  This was answered by the Learned Chief Justice in the ISOQUANT CASE supra.  At page 22 of the cyclostyled judgment, he had this to say:

“At this stage, the Labour officer (read designated agent) directs that the employer or anyone who is found guilty of an unfair labour practice must cease or rectify the infringement by paying a certain amount of money.  The ruling has no legal force at this stage.  An employee cannot enforce a “draft ruling”.  Both the employer and the employee cannot seek a review or appeal against the ruling at this stage since it will be a ‘draft’.  It is a suspended ruling, which must not be taken as a direction that the money be paid there and then.  It is an interlocutory ruling in abeyance and not a final ruling.  It is a ruling that is made pending the decision of the court aquo, which may subsequently give final legal effect to the ‘draft ruling’  “

Elsewhere in this judgment I made a finding that the Designated Agent issued a certificate of no settlement when conciliation proceedings failed to settle the dispute between the parties.  I also referred to the fact that this was in compliance with s93 (3) of the Act.  I also indicated that the procedure utilised by the

Designated Agent was that prescribed in s93 of the Act.  This shows that the ruling made by the Designated Agent had all the marks of a “draft ruling”.  l have referred to precedent which shows that a party cannot seek review of or appeal against a ‘draft ruling’.

In the result, the point in limine raised by the respondent ought to be upheld.

The Court makes the following order:

The point in limine, being with merit, be and is hereby upheld.

The appeal be and is hereby struck off the roll as it is improperly before the Court.

Each party to meet its own costs.

COGLAN, WELSH AND GUEST     -      Respondent’s Legal Practitioners