Ruwo Hamadziripi v African Banking Corporation Limited t/a Banc ABC

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/827/2014
HARARE, 28 OCTOBER 2014
CASE NO LC/H/827/2014
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/827/2014

HARARE, 28 OCTOBER 2014 &			  CASE NO LC/H/236/2013

19 DECEMBER 2014

In the matter between:

RUWO HAMADZIRIPI						          APPLICANT

Versus

AFRICAN BANKING CORPORATION LIMITED			RESPONDENT

t/a BANC ABC

Before The Honourable E Muchawa	:	Judge

(IN CHAMBERS)

MUCHAWA J:

This is an application for leave to appeal against my judgment in which I allowed the respondent’s appeal.

In that case I had been called upon to determine the following:

Whether the agreement of 10 June 2011 between the Banking Employers Association of Zimbabwe (“BEAZ”) and the Zimbabwe Banks and Allied Workers Union (“ZIBAWU”) constituted a valid and enforceable CBA which is binding on the parties in the matter before me.

Whether clause 2 of the Collective Bargaining Agreement (CBA) Banking undertaking (SI 273 of 2000) exempted the Employment Council from following the provisions of the Labour Act when amending SI 273 of 2000.

Whether the respondent was entitled to salary “shortfalls” beyond 31 December 2012 being the date of expiry of his contract of employment.

I found that sections 79 (1) and 80 (1) and (2) of the Labour Act [Cap 28:01], make registration and publication by the Minister essential pre-requisites for a CBA to be effective and binding. Consequently I found that the agreement of 10 June 2011 between BEAZ and ZIBAWU did not constitute a valid and enforceable CBA binding on parties before me.

I further found that clause 2 of the CBA SI 273 of 2000 did not exempt the Employment Council from following the provisions of the Labour Act when amending SI 273 of 2000.

On the last issue I found that the applicant (respondent in the main matter) could not claim and be awarded salary “shortfalls” beyond the expiry of his fixed term contract.

The applicant is essentially taking issue with my interpretation of section 82 of the Labour Act. It is alleged that I misread this section and made it subordinate to section 80 of the Labour Act.

I was pointed to some arbitrators who are now following my judgment as it is binding upon them yet they hold a contrary view and the far reaching effect of my judgment.

The application for leave to appeal is opposed. The respondent argues that the application does not raise a question of law as required by section 92 F (1) of the Labour Act regarding appeals to the Supreme Court.

Reference was made to the Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S) case for what a question of law is.

I believe that by questioning my interpretation of the Labour Act, the issue raised by the applicant qualifies as a question of law. It clearly falls into the category of “a question as to what the law is.” The Supreme Court is being asked to determine what the true rule of law is on the issues already stated above.

I believe that I provided well-reasoned arguments for my conclusion on the law. It may however be that the Supreme Court may reach a different conclusion on my interpretation of section 82 of the Labour Act which I am alleged to have not read completely as well as its relationship to section 80 thereof.

My decision, which has a binding effect could well benefit from further scrutiny by the Supreme Court bench.

It is for the above reasons that the application is allowed.

Accordingly I order as follows:

The applicant’s application for leave to appeal to the Supreme Court be and is hereby granted in terms of the applicant’s draft Notice and Grounds of Appeal.

Each party to bear its own cost.

Kantor & Immerman, respondent’s legal practitioners