Sebastian Vengesayi v Chinhoyi University of Technology

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/533/16
HELD AT HARARE 9 JUNE 2016
CASE NO
JUDGMENT NO LC/H/533/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/533/16

HELD AT HARARE 9 JUNE 2016				CASE NO LC/H/APP/12/16

& 9 SEPTEMBER 2016

In the matter between:

SEBASTIAN VENGESAYI					Applicant

AND

CHINHOYI UNIVERSITY OF TECHNOLOGY			Respondent

Before The Honourable Hove, J

For Applicant			T Marume (Legal Practitioner)

For Respondent		S Mushonga (Legal Practitioner)

HOVE J:

This is an application for condonation to enable the applicant to file its appeal against the decision of the labour officer out of time.

The respondent raised a preliminary point and argued that the new Amendment Act No. 5/2015 does not allow for the procedure adopted by the applicant.  The new provisions do not provide for an appeal against the decision of a labour officer nor for an application to the Labour Court.  It was argued that the Labour Court is a creature of statute and cannot do anything outside the four corners of the parent Act. The Labour Act [Chapter 28:01] as amended.

The new provisions in terms of Act No. 5/2015 which came into effect in August 2015 provides that after a labour officer makes a ruling, it is the labour officer who applies for confirmation of that ruling.  No provision for appeals and or application is made in terms of that provision.

The applicant argued that they are at this stage merely seeking condonation not to set aside the decision of the labour officer.  Further they argue that the application is in terms of s.93 (7) (b) of the Labour Act as read with section 89 of the Labour Act.  It was submitted that the Amendment Act did not repeal S.93 (7) (b) of the Act.  So one can still bring applications in terms of S93 (7) (b).

Section 93 (7) (b) provides as follows;

“(7) If, in relation to any dispute or unfair labour practice-

After a labour officer had issued a certificate of no settlement in relation to the dispute or unfair labour practice, it is not possible for any reason to refer the dispute or unfair labour practice to compulsory arbitration as provided in subsection (5); or

A labour officer refused, for any reason, to issue a certificate of no settlement in relation to any dispute or unfair labour practice after the expiry of the period allowed for conciliation under subsection (3) or any extension of that period under subsection (4)”

Any party to the dispute may in the time and manner prescribed, apply to the

Labour Court.

for the dispute or unfair labour practice to be disposed of in accordance with paragraph (b) of subsection (2) of section eighty-nine in the case of a dispute of interest; or

for an order in terms of paragraph (c) of subsection (2) of section eighty-nine, in the case of a dispute of right.

The provisions of section 93 (7) (b) allows a party to approach the Labour Court by

way of an application in cases where a labour officer refuses to issue a certificate of no settlement.

In casu, the applicant is seeking to approach the labour officer on appeal and the labour officer states that the intended appeal is late and he cannot entertain it, unless the Labour Court condones the delay in noting the appeal.

The Labour Act does not give this court the jurisdiction to entertain applications for late noting of appeals before labour officers.  The labour officer cannot in its rulings or decision confer upon the court jurisdiction that is not conferred in terms of the parent Act.  Section 93 (7) (b), as indicated refers to situations where the labour officer refuses to issue a certificate of no settlement and not to situations where a labour officer makes a decision that he has got no jurisdiction to entertain a matter that is brought to him outside the stipulated time lines.

This court cannot exercise its powers under section 93 (7) (b) in the circumstances of this case.

The court therefore has no jurisdiction to entertain this application and on that basis the court finds it unnecessary to consider all the other issues placed before it.  The following order is made:

Order

application be and is hereby dismissed on the basis that the court has no jurisdiction to hear the application.

Each party will bear its own costs.

Matsikidze & Mucheche, applicant’s legal practitioners

Mushionga Mutsvairo & Associates, respondent’s legal practitioners