Tichafara R. Viriri v Christian College of Southern Africa & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/42/2021
HARARE, 19 NOVEMBER 2020
CASE   NO
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/42/2021

HARARE, 19 NOVEMBER 2020			     CASE NO LC/H/APP/544/19

AND 9 APRIL 2021

In the matter between:-

TICHAFARA R. VIRIRI						Applicant

And

CHRISTIAN COLLEGE OF SOUTHERN AFRICA		1st Respondent

And

ANGELICA MUDYIWA						2nd Respondent

Before Honourable B.T. Chivizhe, Judge

Applicant 			In person

For 1st Respondent	Ms S. Baira (Legal Practitioner)

2nd Respondent		In default

CHIVIZHE, J:

This is an application for condonation of late filing of an application for confirmation of a ruling issued by the Applicant in the dispute between the1stand 2nd Respondent. The application is opposed by the 1st Respondent. The 2nd Respondent has not responded to the application. The 2nd Respondent, was also in default on the date of the hearing despite proper service having been effected on her.

The application is for condonation of late filing of an application for confirmation of a ruling issued by the Applicant in the dispute pitting the 1st and 2nd Respondent. Through his Founding Affidavit the Applicant avers that he is a Designated Agent for the Employment Council for Commercial Sectors of Zimbabwe. It is in that capacity he is empowered to depose to the Founding Affidavit. The 2nd Respondent, who is a former employee of the 1st Respondent referred a claim of non-payment of salaries, unlawful deductions and non-payment of terminal benefits. The Applicant further avers that after hearing the matter he issued a draft ruling on the 3rd of June, 2019. He however failed to lodge the application for confirmation of his draft ruling within the time frame stipulated by the Labour Court Rules. In explanation he states that the omission was not wilful he could not bring the application on time as the 2nd Respondent who stands to benefit from the confirmation of his draft ruling did not have the capacity to fund the processing of the application within the 30 days as required under the rules of this court. He further submits that administratively it is the obligation of the employee party to meet the costs of the application and then claim these costs from the employer party.  He submits that there is no discernible prejudice to the administration of justice were this court to grant condonation for the late filing of the application. He prays for an order as per the Draft Order.

The 1st Respondent through its Notice of Opposition is opposed to the granting of the application for condonation. Through the Opposing Affidavit of Margaret Dairai Mbizvo, whose designation is given as Executive Director, the 1st Respondent avers that the application is improperly placed before the court as the Applicant in his capacity as a Designated Agent had no locus standi to file an application for confirmation of a draft ruling under the provisions of Section 93 of the Labour Act [Cap 28:01]. The 1st Respondent has also raised further technical problems with the application, that the application dos not meet the standard requirements for an application for condonation, for example, there has been no reasonable explanation for the delay, the explanation tendered for the delay has not been supported with evidence, there is no accompanying affidavit from the 2nd Respondent confirming the averments made by the Applicant. The 1st Respondent also challenges the averments by Applicant that the costs of the application should be borne by the 2nd Respondent. 1st Respondent contends that the Applicant should foot his own costs as he is the Applicant in the matter.  On the basis of these grounds the 1st Respondent prayer is for dismissal of the application with costs on a higher scale for lack of merit.

On the date of hearing there appeared the Applicant and 1st Respondent’s Legal Counsel. Ms S. Baira, for 1st Respondent in oral submissions addressed on the points in limine as taken through the Notice of Opposition and Heads of Argument. She submitted as the first point that the Applicant had no jurisdiction as a Designated Agent to file an application for confirmation under Section 93 of the Labour Act [Cap 28:01] .

This was particularly after that the recent judgment of the Constitutional Court in the matter of Isoquant Investments (Private) Limited t/a Zimoco  vs Memory Darikwa CCZ 6/20 had clarified the role of Designated Agents. Designated Agents were precluded from making an application for confirmation in circumstances where they have proceeded to redress the dispute as between the parties. It was Ms Baira submission that the Applicant in this case had indeed proceeded to redress the dispute. The application for condonation was therefore improperly before the court.

Ms Baira submitted as a second point that in any event Section 93 (5) of the Labour Act [Cap 28:01] as interpreted by the Constitutional Court in the same matter made specific mention of an application by a Labour Officer to the Labour Court for confirmation of a draft ruling. No provision is made for an application for confirmation to be made by a Designated Agent. On this basis her prayer was for the dismissal of the application for condonation as it was improperly before the court.

Mr Viriri, the Applicant, in his response countered the position taken by 1st Respondent. His submission was, contrary to the 1st Respondent’s position, the Constitutional Court in the Isoquant matter had outlined two scenarios. Firstly where a Designated Agent had at the hearing attempted to redress the dispute the Designated Agent would not be expected to file an application for confirmation before the Labour Court. The second scenario was where the Designated Agent had issued a Certificate of No Settlement and then proceeded to utilise the conciliation method. The Designated Agent was entitled in such a scenario to apply for confirmation of his draft ruling before the Labour Court. It was Mr Viriri submission in this case he had issued a Certificate of No Settlement and then adopted the conciliation method. On that basis the intended application for confirmation would be properly before the Labour Court. His prayer was for the Court to grant the application for condonation as sought.

Ms S. Baira, in reply, reiterated that the application for condonation was improperly before the court as the Applicant had also not followed a lawful process to arrive at the draft ruling the Applicant intended to have confirmed before the court. The Applicant had not conducted conciliation as required he had merely asked the parties to file written submissions and thereafter issued a draft ruling. It was her contention on the basis of the findings in the Isoquant decision the intended application for confirmation would be improperly before the court. The application for condonation therefore stood to be dismissed.

LOCUS STANDI

The first point in limine taken by the 1st Respondent is that the Applicant has no locus standi to file an application for confirmation of a draft ruling. In oral submissions Ms Baira emphasised that the Labour Act [Cap 28:01] makes provision for the application for confirmation of a draft ruling by a Labour Officer under Section 93 (5). No similar provision is made for Designated Agent. On this basis the 1st Respondent submission is the application before the court is a nullity. Mr Viriri in response placed reliance on the Isoquant decision. His submission was in that decision the Constitutional Court had clarified the role of Designated Agent. The Court had outlined the circumstances under which the Designated Agent could resort to the provisions in Section 93 of the Labour Act [Cap 28:01].

The point in limine clearly stands to be dismissed. The court is persuaded by submissions by the Applicant. It is indeed correct as observed that the Constitutional Court in Isoquant matter also clarified the role of the Designated Agents in relation to confirmation procedures under Section 93. The judgment noted that the Designated Agents of National Employment Councils are ordinarily empowered to redress/remedy any unfair situation in their areas of jurisdiction. This is on the basis of Section 63 (3a) as read with Section 63(3b) of the Labour Act. Section 63 (3a) and (3b) provides as follows;

“63 (3a)	A designated agent of an employment council who meets such qualifications as may be prescribed shall, in his or her certificate of appointment, be authorised by the Registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention; where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered, and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.

(3b)	Where a designated agent is authorized to redress any dispute or unfair labour practice in terms of subsection (3a), no labour officer shall have jurisdiction in the matter.”

The Constitutional Court in Isoquant went further to find that when a Designated Agent has redressed the dispute in terms of the two sections then Section 93 of the Labour Act [Cap 28:01] does not apply. The matter can only be brought before the Labour Court by way of an appeal or review. The Court also noted that Section 93 of the Labour Act would only apply where the dispute has not been redressed. This is the case where the Designated Agent would have attempted to resolve the dispute through conciliation. The Court critically stated as follows;

“Section 93 of the Act does not create an avenue for the validation of a final decision that is made by a designated agent in terms of s 63(3a) of the Act. It only creates an avenue where a designated agent adopted the process of attempting to settle the dispute through conciliation in accordance with the provisions of s 93 of the Act.”

On the basis of the findings in Isoquant the issue of Designated Agent having no locus standi to apply for confirmation of draft ruling as taken by 1st Respondent clearly cannot be sustained. The point stands to be dismissed.

The 1st Respondent has also taken a second point in limine that in regards the present proceedings the Applicant is precluded from making the application for confirmation of his draft ruling as he has already redressed the dispute between the parties. The application for condonation is therefore improperly before the court. The Applicant in response submitted that the application was properly before the Labour Court. He was placing reliance on the Isoquant decision. His submission was in this case he had attempted conciliation and thereafter issued a Certificate of No Settlement. He had thereafter made a ruling which is subject to confirmation under the provisions of Section 93 (5) of the Labour Act [Cap 28:01]. On that basis the point taken by 1st Respondent had no merit.

The record of proceedings clearly shows that the matter was referred to Applicant in terms of Section 63 (3a) of the Labour Act [Cap 28:01]. The record also shows that the Applicant had an oral hearing where the claimant was represented but 1st Respondent was in default. The Applicant in his ruling appears to have considered the oral/written submissions by the parties and came up with a ruling directing 1st Respondent to pay a total of $6 421-00 as payments for salaries and gratuity. It would appear on this basis that 1st Respondent submission that the Applicant did redress the dispute has merit.

It is also clear that Applicant did not follow a lawful process to arrive at his draft ruling. The Constitutional Court in Isoquant decision clearly laid down the parameters to be followed by a Labour Officer before he or she comes up with a draft ruling that is then referred to this court for confirmation. It is pertinent to refer to pages 11 to 19 of the judgment. The court emphasised the importance of conciliation and the procedure to be followed. The parties must be granted an opportunity to seek to redress the dispute by agreement. The court captured it as follows;

“This means that a matter that is not a product of compliance with the procedural and substantive requirements of these provisions would not fall within the class of matters over which the Labour Court would have jurisdiction in terms of s 93(5a) of the Act. It would not be a matter which would be the subject of the procedure for bringing such matters to the court a quo, as prescribed under s 93(5a) of the Act. Bringing such a matter to the court a quo, under the guise of invoking the procedure prescribed in the subsection, would not validly institute proceedings in that court in terms of s 93(5a) of the Act. The court quo would not have a valid matter over which to exercise jurisdiction.”

The Applicant in this case did not comply with the requirements as provided for under S93 (1) of the Act before issuing a Certificate of No Settlement. The record of proceedings indicates that the Applicate requested and received written submissions from the parties. In his Founding Affidavit he clearly states that in arriving at his decision/ruling he relied solely on written submissions by the parties. This approach however was specifically condemned by the Constitutional Court in the Isoquant decision. On page 20 of the decision the court stated thus;

“It would not be compliance with the requirements of a compulsory process of conciliation, provided for under s 93(1) of the Act as a pre-condition for the issuance of a certificate of no settlement, to call upon the parties to submit statements of claims and response followed by submission of heads of argument before a certificate of no settlement is issued.”

It must follow therefore as night follows day that the application for confirmation intended to be placed before this court amounts to a nullity. The application for condonation is consequently improperly placed before this court as there is potentially no basis for this court to invoke and exercise its jurisdiction in terms of S93 (5a) of the Labour Act [Cap 28:01] where the process followed in arriving at the draft ruling is patently unlawful.

In the circumstances the application for condonation ought to be dismissed as I hereby do.

Matsikidze Attorneys at Law, 1st Respondent’s legal practitioners