Rickson Meda v Ruwa Local Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/439/2013
HELD IN HARARE, JUNE 19, 2013
CASE NO. LC/H/230/2012
AND 25 OCTOBER, 2013
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/439/2013

HELD IN HARARE, JUNE 19, 2013			CASE NO. LC/H/230/2012

AND 25 OCTOBER, 2013

In the Matter Between

RICKSON MEDA					       	APPELLANT

And

RUWA LOCAL BOARD					RESPONDENT

Before The Honourable E. Makamure : J.

FOR THE APPELLANT     		: Mr N. Mazhetese (Legal Practitioner)

FOR THE RESPONDENT  		: Mr P. Ngarava (Legal Practitioner)

MAKAMURE  J.

At the conclusion of the hearing the hearing in this matter, I dismissed the appeal with no order as to costs.  The following are the reasons for the judgment.

This is an appeal against a determination by an arbitrator.  A dispute arose between the parties resulting in the appellant being suspended with effect from 19 December 2007.  In September, 2010 that dispute was referred to arbitration.  The Arbitrator determined that the dispute had prescribed as it was brought before a labour officer after two years from the time that it arose.  The Learned Arbitrator also found that there was no unfair labour practice committed by the employer and that the “continuing suspension” did not amount to an unfair labour practice as contemplated by the Labour Act Chapter 28:01 (The Act).

The Appellant was aggrieved by the determination and appealed to this Court on the grounds that the Arbitrator grossly failed to interpret the provisions of Section 94 of The Act; that the Arbitrator erred by dismissing the Appellant’s claim and that the award by the Arbitrator is grossly unreasonable and confusing and that no reasonable tribunal would come to such an outrageous conclusion.

The facts of this matter are fairly straight forward.  They are as follows:

The Appellant was suspended from duty on 19 December 2007.  A hearing was never conducted.  Correspondence on record shows that in September 2010 the Appellant approached the Ministry of Public Service Labour and Social Welfare (the Ministry) to have the dispute resolved.  It is clear that the Ministry was approached well after a period of two years had passed.  Section 94(1) provides that a labour officer shall not entertain a dispute or unfair labour practice unless such dispute was brought within two years from the time which it arose.  Section 94(2) of the Act then provides for the resolution an unfair labour practice which continued to exist up to the time it is presented to a labour officer, even after two years have passed.  In the submissions before the Learned Arbitrator it was observed that the Appellant at some point went to South Africa to seek “greener pastures”.  This averment was not challenged.  What was not challenged is taken to have been admitted.  What this means is that by looking for employment elsewhere the Appellant was no longer available for employment by the Respondent.  That conduct interfered with the continuing nature of the perceived dispute.  He repudiated his contract of employment with the Respondent.  (See Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988(1) ZLR 143(SC).  Thus reviving a dispute after a period of two years is contrary to the provisions of Section 94(2).  The Appellant could also have approached a labour officer in terms of Section 101(6) of The Act.  He did.  There is need for finality to litigation (See Ndebele v Ncube 1992(1) ZLR 288(S)).

In view of the foregoing, it is clear that the dispute had prescribed.  In the circumstances there is no merit in the grounds of appeal.  Consequently there is no merit in the appeal.

It was in view of the above that the appeal was dismissed with no order as to costs.

J. Mambara and Partners Legal Practitioners, Representatives for the

Appellant.

Ngarava, Moyo and Chikono Legal Practitioners, Representatives for the

Respondent.