Simangaliso Nehowa v MSF Holland & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/04/2021
HARARE, 18 OCTOBER 2017
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/04/2021

HARARE, 18 OCTOBER 2017			    CASE NO. LC/H/LRA/440/17

AND 19 FEBRUARY 2021

In the matter between:-

SIMANGALISO NEHOWA					Applicant

And

MSF HOLLAND							1st Respondent

And

ELIJAH MANYEZA							2nd Respondent

Before Honourable B.T. Chivizhe, Judge

Applicant				In person

For 1st Respondent		Mr O. Matizanadzo (Legal Practitioner)

2nd Respondent			In person

CHIVIZHE, J:

There has been an inordinate delay in the hand down of this judgment. My most sincere apologies to the parties involved. This is an application for confirmation of a draft ruling made on the 27th February 2017 by the Applicant in her capacity as Designated Agent for the NEC Welfare and Educational Institutions. The application is premised on the provisions of Section 95 (5a) and (b) of the Labour Act [Chapter 28:01] hereafter referred to as (the Act.)

The material background facts are as follows. The First Respondent is a private international organisation locally referred to as a private voluntary organisation. The Second Respondent was employed by the First Respondent as a Human Resources Assistant. He was engaged on the basis of a number of fixed term contracts of employment the last one of which was for the period extending from the 1st of January 2015 to 31st December 2015. The 2nd Respondent was suspended from work sometime in 2015 on allegations of having committed an act of misconduct. Pending the disciplinary hearing which was to be convened under the provisions of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 (hereinafter referred to as “S.I. 15 of 2006” the second Respondent resigned from work. Prior to his resignation the parties had been communicating. They had and exchanged correspondence on the issue of a social package which Second Respondent believed he was entitled to but the First Respondent position  was that he was not entitled to the same.

The Second Respondent initially referred a claim to the Labour Officer.  That claim was however dismissed by the Labour Officer on the basis of lack of jurisdiction to preside over claims arising out of provisions of a Code such as the issue of gratuity. The Second Respondent thereafter referred the matter to the National Employment Council for the Welfare and Educational Institutions in Zimbabwe. At the hearing held before the now Applicant the First Respondent raised the preliminary point of jurisdiction of the National Employment Council for the Welfare and Educational Institutions in Zimbabwe to determine the matter in the light of the fact that the Second Respondent was a Managerial employee. The First Respondent’s position was that jurisdiction in such circumstances rested with the Labour Officer.  After hearing the parties’ arguments on the preliminary point taken the Applicant then issued the draft ruling which is the subject of the present proceedings. In her ruling the Applicant found that the NEC Welfare and Educational Institutions in Zimbabwe had jurisdiction to hear the matter as the Second Respondent, being a non-managerial employee, was covered by the provisions in Statutory Instrument 102 of 2014, and the Labour Act [Chapter 28:01].  The Applicant consequently dismissed the preliminary point taken by the First Respondent for lack of merit.

THE APPLIICATION

Applicant referred the draft ruling to this court for confirmation. The application is opposed by the First Respondent and supported by the second Respondent. Through their Notice of Response the First Respondent oppose the application on three fronts. Firstly, that the ruling should not be confirmed as it is premised on gross misdirections of the facts and on the law. Secondly, that the Applicant erred and grossly misdirected herself by purporting to have powers and to then determine that the position of the Second Respondent was that of a non-managerial employee where clearly she had no jurisdiction to make such a determination, Thirdly, that the Applicant erred and grossly misdirected herself by disregarding the facts and evidence tendered before her to show that the position of Second Respondent was actually a managerial position.

The Second Respond is in support of the application. The Second Respondent position is that the Applicant had jurisdiction to determine the matter.  She correctly arrived at the conclusion that he was a non-managerial employee based on the position that his benefits were the same as found in the Collective Bargaining Agreement: Welfare and Educational Institutions, 2014.  The Second Respondent also disagrees with the First Respondent submission that he ought to have challenged his position as a non-managerial employee during the tenure of his employment and not after the termination of employment.

PARTIES SUBMISSIONS

The parties appeared before this Court and made submissions in line with their positions as reflected in the papers filed before the hearing. The Applicant submitted that her ruling that NEC Welfare and Educational Institution had jurisdiction in the matter was sound on the basis of the provisions of the law as captured in Statutory Instrument 111 of 2004 as well as Statutory Instrument 102 of 2014. She also submitted that her finding that second Respondent was a non managerial employee was correct based on the facts and evidence.

She prayed for confirmation of her draft ruling.

Mr O. Matizanadzo, for the First Respondent, submitted that the draft ruling could not be confirmed as it was fundamentally flawed at law. The Applicant had erroneously relied on Section 6 of Statutory Instrument 111 of 2004. The section was inapplicable to the circumstances of the case. The second reason for not confirming the draft ruling was that Applicant concluded that Second Respondent was a non-managerial employee when she clearly had no jurisdiction to make such a determination. Such jurisdiction lay with the Labour Court on the basis of Section 46 of the Labour Act [Cap 28:01]. The position had been reaffirmed in Farayi Katsande vs IDBZ CCZ 9/17 (copy judgement tendered).

Mr Matizanadzo further submitted that the Applicant had also made serious errors of facts in arriving at her conclusion that Second Respondent occupied a non-managerial position. The finding was contrary to the evidence placed before her.  The evidence in the record pointed to the fact that Second Respondent occupied a managerial position e.g. his job description, his duties which included recruiting of staff, training of staff, job evaluation of employees as well as hiring/firing of employees. The Applicant therefore grossly erred in arriving at the conclusion that Second Respondent was non-managerial staff. On this basis it was First Respondent’s prayer that the draft ruling be set aside.

Mr Manyeza submitted that the draft ruling was properly arrived at by the Applicant. He was employed as a non-managerial employee. The matter had been properly referred to the National Employment Council for Welfare and Educational Institutions.  He disputed the submission by First Respondent that his position was not graded. Under the provisions of Statutory Instrument 102 of 2014 Section 2(b) employees may be added from time to time. The fact that an employee is not graded would not disentitle one from enforcing the rights as set under the Collective Bargaining Agreement. He further submitted that his contract and job description did not indicate he was a managerial employee. He also disputed that he was carrying out managerial functions at the work place – his duties were according to him clerical duties.

Mr Matizanadzo, in reply ,insisted firstly that the Second Respondent functions fell in the ambit a of managerial position, secondly the fact that Second Respondent reported to a manager did not disqualify him from being a manager, thirdly the issue of the contract was irrelevant, fourthly the evidence in the record in any event pointed to him playing managerial functions.

POINT RAISED MERO MOTU

After listening to submissions by the parties the Court raised a point mero motu as to whether the Applicant had jurisdiction to deal with the dispute in view of the fact that Second Respondent was a ‘former’ employee. The parties filed supplementary heads of argument accompanied with authorities. The First Respondent position was that the Applicant had jurisdiction to determine disputes pertaining to rights vested during the subsistence of contract and disputes pertaining to payment of wages/benefits upon termination of employment. The Applicant however in this case had no jurisdiction to determine classification of Second Respondent as a managerial or non-managerial employee. Such jurisdiction rested in the Labour Court by virtue of Section 46 of the Labour Act [Chapter 28:01].  It was First Respondent further submission that the Applicant also had no jurisdiction in view of the employment relationship having been terminated between the parties.

The Second Respondent submitted that the Applicant had jurisdiction to entertain the matter as he was pursuing benefits accrued to him during the life of his employment contract with First Respondent. He relied on Section 3 of the Labour Act [Cap 28:01] as well as authorities in Newton Madzikwa vs Twenty Third Century Systems (Pvt) Limited HH 29-14, HC 10360/12. He further submitted that contrary to First Respondent position an unfair Labour Practice can still be committed by a ‘former’ employer where the employer fails to pay outstanding benefits as outlined in Section 13(1) (d) of the Act. The Applicant was therefore well within her powers when she entertained the claim and when she classified his position as a non-managerial employee.

RULING

In the court’s ruling on the issue as to whether the Applicant had the jurisdiction to entertain the claim in view of the position that the termination relationship had terminated by the time matter was placed before her the court was persuaded by the Second Respondent submissions.  To the extent that the Second Respondent was pursuing what was essentially benefits accrued to him during the life of his employment contract with First Respondent the claim was properly placed before the Applicant. I therefore dismiss the point taken mero motu.

In regards the main application however my finding is the application clearly stands to be dismissed on the basis of a fundamental error and misdirection on the part of the Applicant. The court finds that Applicant clearly erred and grossly misdirected herself when she proceeded to determine that the position of Second Respondent was that of a managerial employee when she clearly had no such jurisdiction to make such a determination. It is common cause such jurisdiction ordinarily vest in the Labour Court by virtue of Section 46 of the Labour Act [Cap28:01] Section 46 reads as follows:

“In the event of any dispute as to-

the extent or description of any undertaking or industry; or

whether any employees are managerial employees;

the matter shall be referred to the Labour Court for determination.”

The Court was also aptly referred by the First Respondent to Farayi Katsande & Anor vs IDBZ CCZ 113/2013 where the Apex Court dealt with a matter involving the application of Section 46 (b) of the Act. On this ground I am satisfied that the application for confirmation of the draft ruling made by the Applicant is fundamentally flawed as it was based on a gross misdirection on the facts and the law.

The application is accordingly dismissed with no order as to costs.

NEC Welfare & Educational Institutes in Zimbabwe, applicant’s legal practitioners

Matizanadzo & Warhurst, 1st respondent’s legal practitioners