Brewing and Distilling Employers Association v Brewing and Distilling Workers Union & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H//2024
HARARE, 22 OCTOBER, 2024
CASE NO LC/H/847/24
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H//2024

HARARE, 22 OCTOBER, 2024			  CASE NO LC/H/847/24

In the matter between:-

BREWING AND DISTILLING EMPLOYERS  			APPLICANT

ASSOCIATION

And

BREWING AND DISTILLING WORKERS			1ST RESPONDENT

UNION

And

E MACHIKITI (N.O)

And  							                       2ND RESPONDENT

TP RUZIWA (N.O)	               3RD RESPONDENT

Before the Honourable Kudya J

For the Applicant				K.  Ncube (Legal Practitioner)

For the 1st Respondent			T.  Goro (Legal Practitioner)

For the 2nd Respondent			No appearance

For the 3rd Respondent			No appearance

KUDYA, J:

This is an application for the review of proceedings by Designated Agents Machikiti and Ruziwa, which proceedings resulted in an order dismissing the preliminary point by the respondent employer association and the success of the workers union, the claimant’s claim.

The background to the matter is that, the applicant Brewing and Distilling Employers Association referred to in this judgment as Employers Association and the Brewing and Distilling Workers Union referred to in this judgment as Workers Union went before the 2 Designated Agents following a dispute around negotiations of wages and wages and benefits etc.

The Union was requesting that the arbitrators direct the Association to abide by the rule of law and proceed to arbitration as agreed by the parties. The Association stated that it was trying to have a successful conclusion of the negotiations between the parties.  It therefore prayed that the Union’s claim be dismissed.

In the determination of the issue, 2 points in limine arose, that is, prescription and jurisdiction.  The Association argued that the claim had prescribed and that the Designated Agents lacked jurisdiction to determine the matter.

The Designated Agents ruled against the preliminary points and upheld the Union’s claim.  The Association was aggrieved by the Designated Agents’ determination so it filed a review application with this court.  The review applicant is the subject of this judgment.

When parties appeared before this court on 22 October 2024 an issue around the record of proceedings arose.  Parties continued with their submissions on the understanding that the record would be filed at a later stage.  At the conclusion of the hearing the court reserved judgment on the terms that the Designated Agents were directed to file the record of proceedings in the matter within 10 days of the date of reservation of the judgment.

Parties were granted leave to file supplementary submissions by 15 November 2024 if they were of the view that something had arisen from the record to be filed by the Designated Agents which they viewed as not having been adequately addressed  by the pleadings as they stood on 22 October 2024.

In compliance with the court’s directive, the Designated Agents filed the record in IECMS on 29 October 2024.  As at the time of writing this judgment 21 March 2025 it is clear that, since the deadline of 15 November 2024 lapsed with none of the parties filing any supplementary submission, nothing new arises from the record filed on 29 October 2024.  The court can therefore, safely conclude that, all what parties wanted the court to address is what is contained in the pleadings as they were on 22 October 2024 with the addition of the record on 29 October 2024.

The Association raised 4 review grounds but their main thrust is that the Designated Agents lacked jurisdiction to deal with the matter and that the matter had prescribed.  On the other hand the Union also filed a comprehensive response to the review application but the main thrust being that the Designated Agents had the requisite jurisdiction and that the matter had not prescribed.

For clarity of record it is principally these 2 issues which will be addressed al beit with the fleshing out contained in the body of the review grounds and the response thereto.  The 2 issues are discussed below:

Jurisdiction

The Association says that the Designated Agent did not have power to make a binding determination on the parties.  It states further that the Designated Agents did not find that it had committed an unfair labour practice of failing to negotiate in good faith.  It went on to say that the Designated Agents had not issued a certificate of no settlement before making their order.  It stated further that these were Designated Agents and not labour officers so they could not competently deal with the matter as they did.  It stated further that the proceedings had been handled as an appeal yet there was no decision to appeal.  The Associated also said that the decision did not have an operative part of what would happen to the determination.  It finally stated that, the Designated Agents could not competently order that parties go to arbitration on account of the deadlock without making a finding that, the Association had committed an unfair labour practice.

In response to the issues around the Designated Agents’ jurisdiction, the Union maintained that:

The Designated Agents had power to determine the dispute between the parties.  It placed reliance on a document signed by the Association and the Union on 12 June 2016 headed :Ground Rules for 2016 wage negotiations. It reasoned that, the ground rules empowered the Designated Agents to determine the matter so there was nothing remiss about the Designated Agent dealing with the claim.  It went on the state that, the Designated Agents’ order that the Union claim succeeds spoke clearly to the finding that the   Designated Agents had agreed with it that the Association was negotiating in bad faith.  It went on to state that no certificate of settlement was required as the Designated Agents did not sit as conciliators on the matter.  The Union went further and stated that, the Designated Agents correctly used their powers to redress a dispute which had occurred within their industry of operation.  It stated that, the matter was not an appeal but a claim as set out in their papers which referred to claimants and respondent.  It concluded that there was no gross irregularity attendant on the determination as it stated clearly that the Union claim should succeed.

A reading of the proceedings before the Designated Agent shows clearly that, the parties were actively engaged in the negotiations up to the time of the deadlock which saw them going to the Designated Agents. The court observed that, somewhere in the Designated Agents’ record claimants were referred to as appellants referred to the claimants as appellants. A reading of the whole body of the determination however shows that such was a typing error since, in all the pleadings that there was only reference to claimant and respondent.

It is settled that technical niceties should not result in an upsetting of proceeding unless the technicality can be adjudged prejudicial to the   party.  See Nyahuma v Barclays Bank SC67/05.It is clear that, the typo error of referring to the claimants as appellant is of no moment.  It is thus dismissed.

A reading of the ground rules shows that, parties agreed that where they disagreed they had to go before an arbitrator.  Parties agreed to this rule so the Association cannot resile from it stating that it was adjudged to be negotiating in bad faith.  It is settled that parties are bound by their contractual terms, no matter how onerous the contractual conditions can be. See Magodora v Care International SC24/14. It is clear that, the conciliation -arbitration debate in Isoquant which the Association tries to rely on does not apply to the facts of this case.

The case at hand was a clear case of voluntary arbitration agreed upon by the parties so parties had to be bound by what they agreed upon. The relief in the determination is set out clearly that the Union’s claim succeeds. The Union papers are clear that, the referral to arbitration was clearly sought in the claim and was allowed by the ground rules.  The argument about jurisdiction is therefore misplaced.  There was therefore, nothing remiss about the dismissal of that point in limine.  The jurisdiction and gross unreasonableness argument therefore fails.

Prescription

The record is replete with evidence that parties were actively engaged in the negotiations until they reached a deadlock.  There was therefore no prescription to talk about.  The prescription argument therefore fails.

In the ultimate it is clear that the review application is without merit.  It should be dismissed.

IT IS ORDERED THAT

Application for review being without merit in its entirety,  it be and is hereby dismissed with costs on the legal practitioner client scale

Gill, Godlonton and Gerrans,                       Applicant’s Legal Practitioners

Tsunga Law International,                            Respondent’s legal Practitioners