Regis Mabika v Innsor Africa Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/306/2016
HARARE, 17 MARCH 2016 &
13 MAY 2016
CASE NO LC/H/01/2016
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/306/2016

HARARE, 17 MARCH 2016 &				        CASE NO LC/H/01/2016

13 MAY 2016

In the matter between

REGIS MABIKA								APPELLANT

Versus

INNSCOR AFRICA LIMITED						RESPONDENT

Before the Honourable E T Muchawa J

For the Appellant	In Person

For the Respondent    A K Maguchu (Legal Practitioner)

MUCHAWA J:

This is an appeal against a determination by the Minister for Labour and Social Services of 19 December 2013, in which he approved a proposed retrenchment package for the appellant.

The Minister acted in terms of section 12 C (9) of the Labour Act [Chapter 28:01] and in the proposed retrenchment package he excluded a quarterly bonus and a cellphone allowance, amongst other things.

The appellant filed an appeal before this court following an application for condonation of late noting of an appeal.

The grounds of appeal before me are stated as follows:

The Honourable Minister grossly misdirected himself when he failed, without giving any reasons for such failure, to award my claims based on the contract of employment in respect of quarterly bonuses and cellphone allowances outstanding as at the date of my retrenchment (Annexure “B”).

The contract of employment (Annexure “A”) was signed on 17 July 2006 between me and the respondent, which the respondent decided to unilaterally vary during the course of my employment.

The appeal is opposed. The respondent raises the point in limine that this court has no jurisdiction to entertain this appeal as the decision to approve the proposed retrenchment is not subject to appeal in this court.

In response, the appellant sought enlightment as to whether there is a prohibition against lodging an appeal in the Labour Act.

Mr Maguchu for the respondent measured up to the task. I agree with him that this court has not been clothed with jurisdiction to hear an appeal against a determination of the Minister which is done in terms of section 12C (9) of the Labour Act.

Section 89 (1) of the Labour Act sets out the functions, powers and jurisdiction of the Labour Court. It provides:

The Labour Court shall exercise the following functions—

Hearing and determining applications and appeals in terms of this Act or any other enactment; and

Hearing and determining matters referred to it by the Minister in terms of thus Act; and

Referring a dispute to a labour officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the Labour Court considers it expedient to do so;

Appointing an arbitrator from a panel of arbitrators referred to in subsection (6) of section ninety-eight to hear and determine an application;

(d1) exercise the same powers of review as would be exercisable by the High Court in respect of labour matters.

Doing such other things as may be assigned to it in terms of this Act or any other enactment.

The jurisdiction of the Labour Court is therefore spelt out in section 89 (1) (a) to (e).

A right to appeal is not a fundamental right. It has to be given in order to be exercised. It is a statutory right. (See Zimbabwe Education Scientific Social &	 Cultural Workers Union v Welfare Educational Employers Association SC 11-2013).

The Labour Act provides for appeals to the Labour Court by a person who is aggrieved by a determination made under an employment code in terms of section 92D.

In section 98 (10) the Labour Act provides for appeals to the Labour Court on a question of law in respect to decisions of an arbitrator.

I was not shown, nor did I find a provision in the Act providing for an appeal to the Labour Court against the minister’s approval of a retrenchment order.

I am not satisfied that this appeal is an appeal “in terms of this Act or any other enactment.” The Labour Act does not specifically provide for this kind of appeal to the Labour Court nor is there any other enactment that does so that I have been directed to. (See National Railways of Zimbabwe v Zimbabwe Railway Artisans union & Ors SC 8-05 at p 7 – 8 and Tamanikwa & Ors v Zimbabwe Power Development Fund SC 53-13).

Accordingly this appeal is dismissed with costs for want of jurisdiction.

Dube, Manikai & Hwacha, respondent’s legal practitioners