Roy Musarurwa & 53 Others v The Minister of Labour & 2 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/423/14
HELD AT HARARE ON 27 June, 2014
CASE NO. LC/H/APP/90/14
AND 1ST AUGUST, 2014
JUDGMENT NO LC/H/423/14
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/423/14

HELD AT HARARE ON 27 June, 2014			CASE NO. LC/H/APP/90/14

AND 1ST AUGUST, 2014

In the matter between

ROY MUSARURWA & 53 OTHERS				APPLICANTS

AND

THE MINISTER OF LABOUR					1ST RESPONDENT

THE RETRENCHMENT BOARD					2ND RESPONDENT

LAFARGE CEMENT (PRIVATE) LIMITED			3RD RESPONDENT

Before The Honourable B.T. Chivizhe, Judge

For the Applicants	:	Mr C. Chengeta – Legal Practitioners

For the Respondent	:	Mr T. Hussein – Legal Practitioners

CHIVIZHE, J.

The matter was placed before me as an application for condonation of late noting of an application for review.

The material background facts to the matter are as follows:

The Applicants are former employees of the 3rd Respondent.  In March 2012 the parties entered into a negotiating process for the retrenchment of the Applicants.  The process culminated in a retrenchment certificate issued by the Minister on 22nd May, 2012.  The Applicants after a period of two years instituted proceedings in the Labour Court to appeal against the Minister’s decision allowing for retrenchment of the Applicants.  On the 31st of January 2014 the Labour Court dismissed the appeal for lack of jurisdiction on the basis that the Labour Act [Cap 28:01] makes no provision for an appeal against the Minister’s decision granted under Section 12(c) of the Labour Act.  The Applicants have now instituted an application for review with this Court in terms of Section 89(d1) of the Labour Act [Cap 28:01]. Because however the application is being made two years after the proceedings a quo the Applicant filed an application for condonation of late noting of the application for review.

In the founding affidavit, Roy Musarurwa, who represents the 54 Applicants in this matter, submitted that, after the retrenchment certificate was issued by the Minister on the 22nd of May, 2012 they had noted an appeal against the determination with the Labour Court.  Despite the noting of the appeal the Respondent had proceeded with the retrenchment exercise and paid retrenchment benefits into the Applicants’ bank accounts.  The appeal was however dismissed for want of jurisdiction on the 31st of January, 2014.  It was his submission that the delay in seeking for review was occasioned when the Applicants erroneously pursued an appeal firstly, with the Labour Court then with the Supreme Court. The Applicants had thereafter noted an application for review before the High Court.  Having then realised the proper procedure to follow was to seek for review in terms of Section 89(6) of the Labour Act the Applicants withdrew both matters before the Supreme Court and High Court.  The Applicants were now seeking for condonation before the Labour Court for the late noting of application for review. It was the Applicants’ submission that the delay was therefore not deliberate or wilful and they also had good prospects of success on review.

The application was opposed by the Respondent on the basis of three grounds.  Firstly, that on the face of it, the application for condonation is not valid as Rule 16 under which the application is purportedly being made refers to Section 97(1)(c) and (d) of the Labour Act [Cap 28:01] which section has been repealed and not replaced.  There is consequently no statutory power granted to the Labour Court to review the decision of the Retrenchment Board and the Minister. Secondly, the Labour Court has previously declined jurisdiction. The Applicants having then approached the Supreme Court and High Court the matters are still pending before the same courts.  Thirdly, the retrenchment order having been lawfully granted the Applicants were then paid out benefits which they duly accepted. They are therefore deemed to have waived their rights to challenge the retrenchment order.

On the date of hearing, Mr Chengeta, Counsel for the Applicants submitted that he had since filed and served Respondent with the notice of withdrawal in respect of the Supreme Court. In respect of the High Court matter he would be in a position to file same after the proceedings.  He however reiterated the submissions in respect of the application for condonation and prayed that condonation be granted.

Mr T. Hussein, for the Respondent, in adhering to heads filed, raised the procedural issues. On the merits he reiterated that the retrenchment process had been lawfully conducted the Applicants had willingly accepted the benefits in terms of the retrenchment order.  The Applicants were however seeking to obtain a greater package.  They were however precluded from doing so as they evidently waived their rights to challenge the retrenchment exercise when they accepted the retrenchment package.  He referred to the case of Chidziva & Ors vs. Zimbabwe Iron & Steel Company Ltd 1997(2) ZLR 368(S).

The first point raised in opposition is a jurisdictional issue.  It behoves that the court address that point initially.  The point raised is that Rule 16 under which the application is noted refers to Section 97(1) (c) or (d) of the Labour Act [Cap 28;01] which Section has since been repealed and not replaced.  In the circumstances the application for condonation is not permissible in terms of the regulations and is thus improperly before the court.  The Applicants have not responded to the point.

It is clear that Section 89(1)(d1) of the Labour Act confers the Labour Court with similar review powers as the High Court in respect of labour matters.  The implementation provision in Rule 16 of the Labour Court Rules, Statutory Instrument 59 of 2006 however erroneously refers to Section 97(1)(c) or (d) of the Labour Act instead of Section 89(1)(d1) which is the enabling provision. Section 16(1) reads as follows;

“(1)	A person wishing to seek review of proceedings referred to in Section 97(1)(c) or (d) of the Act shall, within 21 days from the date when proceedings are concluded (Rule 16).  …………………………”

There was clearly an error by the drafters of the Rules as indeed Section 97(1)(c) and (d) were repealed by Section 34 of Act 7 of 2005. This however does not detract from the clear intention of the legislature in the enabling Act i.e. the Labour Act to endow the Labour Court with the same review powers as the High Court. It also does not invalidate the application before me. I would consequently dismiss the first issue. The Applicants having belatedly filed the withdrawal notice in respect of the High Court review application the second point is also consequently dismissed.

The principles that ought to guide the Court in an application for condonation such as this one are very clear. They include;

The extent of delay

The explanation therefore

The prospects of success on appeal

I shall proceed to address these factors in relation to the application before me.

In terms of Labour Court Rules, a party seeking to note an application for review to the Labour Court must do so within 21 days from the date proceedings are concluded (Rule 16). The retrenchment order in this case was granted on 22nd May 2012.  The application for review is therefore being made over two years after the conclusion of those proceedings. There has clearly been an inordinate delay.

The explanation tendered by the Applicants for the delay is that they erroneously approached different court forums in search of relief until they finally realised the Labour Court was the correct forum.  The explanation tendered sounds unreasonable considering that Applicants were at all times represented by a Legal Practitioner.

Even if the explanation could be considered reasonable the most important issue however is whether they have good prospects of success in their application.

An application for review before the Labour Court under Section 89 9(d1) of the Labour Act is based on the same grounds as the High Court.  A party therefore has to show any form of procedural irregularity, bias, lack of jurisdiction, or gross unreasonableness that would warrant an interference with the decision by the Retrenchment Board and the Minister.  The Applicants in their papers allege that the Minister acting on recommendations from the Retrenchment Board erred in the following respects.

He failed to recognise that the 3rd respondent had not followed the proper retrenchment procedures.

He failed to adopt the parties last negotiating positions of 29th of March 2012 when a deadlock was declared.

He failed in adopting most of the employer’s submissions to the detriment of the workers’ positions.

Firstly the grounds have not been raised with sufficient clarity for the Court to determine whether they are based on any of the grounds referred to supra.  Secondly, Applicants in oral presentation before the Court Mr Chengeta sought to introduce new evidence from the bar. There was no evidence presented to justify the claims that the Minister erred in the exercise of his powers granted under the Act. No minutes were placed before the Court to justify Applicant’s submissions. Finally in respect to the merits the Applicant failed to rebut the presumption that by accepting the benefits they waived their rights to challenge the retrenchment order. The Court was aptly referred to the matter of Chidziva & Ors vs Zimbabwe Iron and Steel Company Ltd. 1997 (2) ZLR 368 (S).

In the circumstances the application for condonation of late noting of an application for review stands dismissed.

Pundu & Company, Legal Practitioners for the Applicants.

Hussein & Ranchod, Legal Practitioners for the Respondents.