Bindura Rural District Council v Dangarembizi (N.O) & Zimbabwe Rural District Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/199/24
HARARE, 13 FEBRUARY 2024 & 30 APRIL 2024
CASE NO LC/H/438/21
In the matter between:-
BINDURA RURAL DISTRICT COUNCIL
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE    JUDGMENT NO LC/H/199/24

HARARE, 13 FEBRUARY 2024 & 30 APRIL    CASE NO LC/H/438/21

2024

In the matter between:-

BINDURA RURAL DISTRICT COUNCIL    APPLICANT

DANGAREMBIZI (N.O)    1st RESPONDENT

ZIMBABWE RURAL DISTRICT WORKERS    2nd RESPONDENT
UNION

Before the Honourable Kudya J
For the Applicant    T.S. Musundire

For the Respondent    T.E. Mudzuri (Legal Practitioner)

KUDYA, J:

This is an application for the review of the Designated Agent’s decision which resulted in him awarding members of the Zimbabwe Rural District workers Union an increment in housing and transport allowance which Bindura Rural District Council was obliged to pay as per the Designated Agent’s determination. The background to the matter is that Zimbabwe Rural District Council Workers Union approached the DA following a deadlock vis increments in housing, transport among other allowances which the union felt had to be awarded to its members. Parties filed with the Designated Agent the claim and the response to the claim. Further to those documents Zimbabwe Rural District Council Workers Union had to file a replication and if parties needed to have an oral hearing thereafter such would be communicated to the Designated Agent. There was a lag due to COVID restrictions from the time the parties met to the time when the DA released his determination. Bindura Rural District Council states that it was not served with the replication for it to decide whether or not to request for an oral hearing hence it got surprised to receive the determination yet it had not seen the replication let alone exercise its right to request an oral hearing.

Aggrieved by the determination Bindura RDC has now approached this court seeking that the proceedings leading to the Designated Agent’s award be set aside and that the increment issue be determined afresh. Bindura RDC advances the following grounds for review:

1) Designated Agent erred grossly by disposing of the matter based on written submissions yet there was no agreement to that effect. Such action violated its right to be heard.
2) DA erred grossly to determine matter without ascertaining whether Bindura RDC had been served with the replication which would then inform whether an oral hearing would or would not be requested.
3) DA exhibited bias by awarding an increment yet Bindura RDC was paying as per National Employment Council scale and had stated that it had no capacity to pay the sought after increment.
4) The DA wrongly concluded that Bindura Rural District Council had not tendered evidence to support its financial incapacity argument yet he had not given it an opportunity to do so.

In the result Bindura Rural District Council prayed that the application for review succeeds, that the Designated Agent’s determination be set aside, that the allowance matter be referred back for determination afresh and that each party bears its own costs.

In response to the application for review the Zimbabwe Rural District Council Workers Union maintained in limine that the deponent to the applicant’s founding affidavit had not been authorised by a board resolution to depose to the affidavit on behalf of Bindura Rural District Council. In its view the application was bad at law for lack of a resolution and had to be dismissed with costs. It however responded to the merits of the review in the following manner. There is no record from National Employment Council but one prepared by the parties and that is irregular.

1) Decision by the DA was regular and not reviewable since the ruling stated that a physical hearing had to be requested but Bindura did not request such so the DA’s award was made properly.
2) There was no prejudice emanating from the alleged non receipt of the replication and the attendant conclusion of the matter on the papers.


3) The award was made based on evidence. There was no proof of financial incapacity tendered hence there is no bias to complain about.

4) The DA concluded properly that Bindura had not tendered proof of financial incapacity so the award increment was well founded.

In the result the Zimbabwe Rural District Council Workers Union prayed that the review application be dismissed with costs and that the DA’s award be made to stand.

In its heads of argument the applicant maintained that it had made out a good case for review and the application had to succeed. Zimbabwe Rural District Council Workers Union in its heads of argument pointed in limine that Bindura had sued a wrong party as it had referred to it as Zimbabwe Rural District Council instead of the Workers Union. It concluded that on account of the ill citation the review application had to be dismissed.

On account of the points in limine raised by both parties it is imperative that such be disposed of before determining the merits of the review application.

**IRREGULAR RECORD BEFORE THE COURT**

It is noteworthy that what was filed before the court were the claimant’s submissions, the respondents response and the DA’s determination. At the end of the record there are hand written the notes before the DA of a purported quantification of the allowances. What is clear from what is on record is that there is no clear record of what happened before the DA and what was agreed upon save for the terse statement in the award that the matter could be concluded post the replication.

The court observed that even when parties appeared in the labour court the issue of the replication continued to raise its ugly head. It is granted that the DA could have seen it but there was no evidence to show that Bindura RDC had been served with the same for it to make an election of an oral hearing or not. The court concluded therefore that the absence of a clear record of proceedings before the DA clouded the issue about how the allowances were arrived at. It also need be noted that at the labour court the DA was not served with the review process neither was he invited to file a response to the same. Being that as it may the court observed that DAs like all adjudicators deal with a lot of cases and answers to how they would have handled matters can only lie in the record of proceedings which can then show how the decision was arrived at. Suffice to conclude that the anomaly about the record suggests that there was a gap in the manner in which the determination was arrived at.


RESOLUTION

It is settled that where a resolution is put into issue the remedy to that is to ask that one be furnished See **Dube v PSMAS SC-73-19**. The issue being capable of being resolved by production of the resolution puts to rest the query raised about the resolution.

WRONG CITATION

It is settled that labour matter should not be dismissed on technicalities that do not resolve the meat of the case See **Mapondera v Freda Rebecca SC-81-22** In the case at hand the founding affidavit states with sufficient clarity that the \(2^{nd}\) respondent is Zimbabwe Rural District Council Workers Union so the error in mismanning the entity in the application heading does not resolve the matter as such can be corrected by typing out the correct name. The point being without merit is dismissed. Having disposed of the points in limine what remains is to determine the merits of the review.

Grounds 1 2 and 4

These are combined for the reason that they all speak to the issue of the right to be heard. It is clear that the parties agreement was that the decision to request an oral hearing would only arise once the replication had been furnished. It is clear from the papers and submissions by the parties that the replication found its way to the DA but not to the Bindura Rural District Council. That scenario means that it was difficult to conclude that Bindura had waived its right to be heard post the replication. The court is of the view that the DA in his invitation to the parties gave time lines for the filing of the documents including the replication which meant that the replication was also a vital document in the determination of the matter. It was imperative that the DA had to satisfy himself whether or not Bindura had received the replication for him to be able to proceed with determining the matter on the papers. That he did not do so such creates the impression that he breached Bindura’s right to be heard to that extent. It also need be observed that the DA states in his determination that he considered the replication so if indeed there were issues needing clarity or beefing up by Bindura it had to be invited to do so. It is only after it would have spurned that chance that the DA could conclude the matter on the papers. The 3 review grounds being merited should therefore succeed.

Ground 4

It is settled that allegations of bias should not be imagined but clearly demonstrated See **Nhari v Z.A.B.G. SC-6-20**.


In the case at hand Bindura concluded that the DA was biased in his determination since it was paying NEC negotiated salaries, and had sort of struck a compromise on certain allowances figures with the union and furthermore it was performing below capacity. A reading of the determination says that no evidence of financial incapacity had been tendered by Bindura but when that is viewed in the face of the broader comment vis the replication it becomes difficult to say that Bindura had failed to tender evidence. If it had been given the opportunity, it might have done so. Being that as it may the mere fact that the DA then concluded the matter without such clarity can not be said to be a demonstration of bias. It could simply be a failure to appreciate how one had to handle the issue which was placed before him. The court is satisfied that the bias bar has not been demonstrated hence the ground should fail.

Zimbabwe Rural District Council Workers Union hastened to comment that there was no prejudice demonstrated by the DAs conduct vis the allowances. Bindura however a different opinion. The allowance determination is an obligation to be borne by Bindura of RDC hence before such could be assumed its computation had to be arrived at properly. In the ultimate it is clear that the determination was arrived at in circumstances which were in breach of Bindura RDC’s right to heard. The determination should therefore be vacated.

**IT IS ORDERED THAT**

Review grounds 1, 2 and 3 being merited the review be and hereby succeeds. Review ground 4 being without merit it be and is hereby dismissed. The determination by the DA is set aside.

The issue of allowances is to be determined afresh before a different DA.

Each party bears own costs.

*Lawman Law Chambers, Respondent’s Legal Practitioners*
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