Brian Mariza v National Foods Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/151/14
HELD AT HARARE ON 10th MARCH, 2014
CASE NO. LC/H/13/12
AND 14th MARCH, 2014
JUDGMENT NO. LC/H/151/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/151/14

HELD AT HARARE ON 10th MARCH, 2014   CASE NO. LC/H/13/12

AND 14th MARCH, 2014

In the matter between:-

BRIAN MARIZA 							Applicant

And

NATIONAL FOODS LIMITED					Respondent

Before the Honourable G. Mhuri, Judge

Applicant: 	In person

For Respondent: 	Mr. Chingoma (Legal Practitioner)

MHURI J.:

In a judgment LC/H/278/13 dated the 28th June, 2013, this Court remitted Applicant’s appeal for a re-hearing by an appropriate works council appointed sub-committee.  The appeal was to be considered within 45 days of receipt of the judgment.

In the event of a failure to meet the above 2 conditions, the court ruled that Applicant be deemed to be reinstated to his former position.

It is this last deeming provision that has given rise to this application by Applicant wherein he is seeking an order compelling Respondent to reinstate him to his original position without loss of salary and benefits in terms of this Court’s Order of the 28th June, 2013.

In the alternative as per the draft order Applicant is seeking an order compelling the sub-committee to issue an appropriate verdict of reinstatement pronounced at the end of the sub-committee’s deliberations of the 30th August, 2013.

A preliminary point was raised by Respondent, to the effect that this Court lacks jurisdiction to entertain such an application.  Reliance was made on the case of

NATIONAL RAILWAYS OF ZIMBABWE V ZIMBABWE RAILWAYS

ARTISANS UNION AND OTHERS SC 8/05.

POSTS AND TELECOMMUNICATION CORPORATION V CHIZEMA SC 108/04

It was argued that the Labour Court being a creature of statute can only hear and determine applications specifically mentioned in the Labour Act [Chapter 28:01] and this application is not one such application.

Applicant argued that, the Labour Court does not derive its jurisdiction exclusively from Section 89 but a litigant can also approach it in terms of Section 92D with matters arising from elsewhere.  His application being one such matter.

Reliance was made on the case of –

RELCOM LESOTHO (PRIVATE) LIMITED V MAFATLE, MAFATLE TELCOM LESOTHO (PRIVATE)LIMITED LAC/CIV/APN/05/08.

Let me hasten to point out that Section 92D of the Act refers to appeals to the Labour Court not provided elsewhere in the Act.

It reads:-

“A person who is aggrieved by a determination made under an employment code may, within such time and in such manner as may be prescribed, appeal to the Labour Court.”

It is clear from the said provision that it only applies to determinations made in terms of employment codes as these are not provided for in the Act unlike appeals against arbitral awards, appeals against a Minister’s action, direction, appeals against the Registrar of Labour’s decision, which are specifically provided for.

Moreover, what Applicant has placed before the Court is not an appeal but an application.   These are two distinct processes.  If the legislature intended to include applications in Section 92D it would have explicitly stated so.

As rightly submitted by Respondent’s Counsel, the Labour Court is a creature of Statute.  It derives its powers from the four corners of the Statute (The Act) and relevant subsidiary legislation.  Unlike the High Court which has unlimited jurisdiction, the Labour Court can only hear and determine those matters which it is specifically empowered to do by the enabling Statute.  One such application is an application in terms of Section 93(7)(ii) seeking an order of reinstatement or employment in a job in terms of Section 89(2)(c)(iii).  This Section does not cover a situation such as is obtaining in casu.

If Applicant was aggrieved by the manner in which the sub-committee was appointed, or by the manner in which the sub-committee handled the hearing i.e. according to Applicant initially pronouncing that he be reinstated and later changing it to a dismissal, he should have approached this Court on review as these are procedural irregularities.

Further, where a litigant by operation of a Court order has been reinstated, as in casu it does not make any legal sense to approach the same Court for an order to compel reinstatement.

This is tantamount to asking the Court to re-issue the same order. This serves no purpose at all in my view.

Applicant’s application not being founded on any provisions of the enabling legislation, this Court has no jurisdiction to entertain it.

To that end the preliminary point raised by Respondent is to be upheld.

Accordingly it is ordered that the application be and is hereby struck off with costs.

Dube, Manikai and Hwacha–Respondent’s Legal Practitioner