Silas Hodza & 17 Others v Joubert Mining (Private) Limited & National Employment Council for Construction Industry

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/231/25
HARARE, 23 JUNE, 2025
CASE NO LC/H/357/25
SILAS HODZA & 17 OTHERS
APPLICANTS
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/231/25 HARARE, 23 JUNE, 2025		CASE NO LC/H/357/25

SILAS HODZA & 17 OTHERS	APPLICANTS

JOUBERT MINING (PRIVATE) LIMITED	1ST RESPONDENT

NEC FOR CONSTRUCTION INDUSTRY	2ND RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicants	- P. Gomo, Attorney

For 1st Respondent	-T. Shadreck, Attorney

For 2nd Respondent	-No Appearance

MUSARIRI, J:

Applicants applied to this Court for an order remitting their complaints of unfair labour practice by 1st Respondent to the 2nd Respondent for ‘hearing and disposal within 30 days’. The application was made in terms of Section 93 (6) b as read with Section 89 (2) c of the Labour Act hereafter called the Act. 1st Respondent opposed the application.

Applicants founding affidavit stated that,

“6.  Sometime in 2024, a referral was made on behalf of the Applicants for some unfair Labour practices to the National Employment Council for the Construction Industry through the Mutare Office. The Applicants were claiming unfair dismissal together with terminal benefits.

Sometime in June 2024 the 2nd Respondent advised that it could not deal with the matter as it was previously decided by the Labour Court on review under case number LC/H/1043/23, which matter was set aside determination made by National Employment Council for Mining Industries on the basis that the now 1st Respondent falls under National Employment Council for Construction Industry.

This ultimately left the Applicants without any recourse than to approach this Honourable Court for relief as provided by the law.

The Applicants wants the court to order the 2nd Respondent to hear and determine their grievances in terms of the act.

The application is merited as it is clear that the 2nd Respondent has refused and or neglected to hear and determine the Applicants’ issues that have been referred to it for conciliation and possible determination and or referral for arbitration in terms of the law.”

1st Respondent’s opposing affidavit countered that,

“7.	The application is improperly before the court for the following reasons;

7.1.  Firstly, I am being advised that the provisions of the Labour Act in terms of which the application has been made relates to the decision of a designated agent not that of an employment council which has been cited as the second respondent. The designated agent concerned is not before the court.

7.2  Secondly, the decision which is liable to be challenged in terms of S93 (2) of the Labour Act is that of refusal by the designated agent to issue a certificate of no settlement after the expiry of the period allowed for conciliation. That is not the decision which is the subject of the present application. In the instant case the designated agent simply declined jurisdiction. Applicants have not pleaded the law in terms of which this court being a creature of statute, should entertain their application.”

Background

The applicants worked for the 1st Respondent in various capacities at various times. By

letter dated 4 March 2024 applicants’ attorney referred a complaint of unfair dismissals and non-

payment of terminal benefits to 2nd Respondent marked for the attention of the Chief Designated Agent. On 13 June 2024 RB Ushamba (Designated Agent) wrote an email which read,

“Please be advised that I am not in a position to issue a notification for a conciliation hearing for the above mentioned dispute which has same claimants and terms of reference, that was dismissed by a Labour Court Judge. Doing so would be tantamount to resuscitating a case that was dismissed by a Labour Judge. The possible recourse is for you to launch an appeal to the Supreme Court, not to me a designated agent. Thank you.”

Analysis

Section 93 (6) of the Act (as amended in 2023) provides that,

“If, in relation to any dispute-

(b)  a labour officer refuses, 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 (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-

(ii)	for an order in terms of paragraph (c ) of subsection (2) of section eighty-nine, in the case

of a dispute of right.”

Assuming ad arguendo that the reference to a ‘Labor Officer’ includes a ‘designated agent’ the

starting point is Section 93 (3) which provides that,

“If the dispute or unfair labour practice is not settled within thirty days after the labour officer began to attempt to settle it under subsection (1), the labour officer shall issue a certificate of no settlement to the parties to the dispute or unfair labour practice.”

The Certificate of No Settlement is only issued after the expiry of thirty days after the officer began attempts to settle the matter. In casu the officer never began to attempt settlement.

In his aforesaid email he stated that would not issue the notification for conciliation. The notice would mark the beginning of an attempt to settle the matter. So the officer did not begin to attempt

settlement. The reason proffered was that he considered, rightly or wrongly, that he lacked jurisdiction to deal with the matter. In summary the officer did not refuse to issue a certificate of no settlement after the expiry of the conciliation period. Therefore section 93 (6) (b) does not apply to this case.

The application having been brought under an inapplicable statutory provision, must fail.

The Court is bolstered in this conclusion by the dicta in the case of

NRZ V ZRAU 2005 (1) ZLR 341 (S)

Per Ziyambi JA at 347A

“Thus before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application ‘in terms of this (Labour) Act or any other enactment.’ This necessarily means that the Act or other enactment must specifically provide for applications to the Labour Court, of the type that the applicant seeks to bring;….”

Conclusion

In light of the foregoing analysis it is concluded that the application ought to be dismissed as incompetent. However, the decision by the Designated Agent may be subject to appeal or review depending as applicants are best advised.

Wherefore it is ordered that

The application in terms of Section 93 (6) (b) of the Labour Act Chapter 28:01 be and is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E