Cainos Chingombe V CITY OF Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/200/2021
HARARE, 20 SEPTEMBER 2021
5 NOVEMBER 2021
CASE NO LC/H/64/21
---------


IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/200/2021

HARARE,  20 SEPTEMBER 2021&		   CASE NO LC/H/64/21

5 NOVEMBER 2021

In the matter between:-

CAINOS CHINGOMBE					APPLICANT

AND

CITY OF HARARE					RESPONDENT

Before the Honourable Kudya J

For the Applicant		Prof. L. Madhuku  (Legal Practitioner)

For the Respondent		R. Zinhema (Legal Practitioner)

KUDYA, J:

This is an application for the review of the decision of the respondent Council to reverse a resolution which had resulted in the applicant employee’s reinstatement following a labour dispute between the 2 parties.

The basis for review is two fold.  It is argued that the employer’s conduct of reversing the reinstatement resolution it had passed on the employee’s case was an illegal act as it went contrary to the provisions of Sec 12(3) of the Labour Act.	Secondly it is argued that the employer lacked jurisdiction to rescind its previous decision to reinstate because it did not possess the power to carry out such a rescission of its resolution. In the result the employee prayed that the review application succeeds with costs on a legal practitioner client scale.  It seeks that the reversal of the reinstatement of the applicant being an illegality be set aside.  In the same spirit it is prayed further that the rescission decision having been made by a party without jurisdiction it also be set aside.

In response to the review application the employer first took the point that it lacked jurisdiction to reinstate the employee by a Council resolution in a matter where the employee had been subjected to due disciplinary process and dismissed accordingly. It contended on the merits that it was not illegal for it to rescind an irregular resolution as the Urban Council Act empowered it to revise its resolutions.  It contended further that it had the requisite jurisdiction to rescind its earlier resolution. In the result it prayed that the point in limine be upheld together with the main merits.  It also reasoned that if the court was inclined to grant the review relief it had to note that the relief set out by the applicant fell short by not providing for reinstatement relief with an alternate of damages.

It therefore finally concluded that the review application had to fail in its entirety. For expediency and ease of reference both the point in limine and the merits were argued by the parties at the same times. In like manner the judgment decides both the point in limine and the merits together as these are intricately linked with each other.

Resolution/Disciplinary Action debate

In this regard the employer reasons that it erroneously made a resolution to reinstate yet the employee had been dismissed following due process in the form of disciplinary proceedings.  A reading of the pleadings on file speaks to the fact that the parties haggled over the employee’s dismissal for quite a while with some of the matters spilling into the High court and the Supreme court.  It is within that context that the employer was seen reinstating the employee.  It would thus be irregular for it to argue now that it erred to reinstate the employee where he had been disciplined under due process. The point being of no merit should therefore fail.

Illegality

It is settled law that whatever action the employer had to take vis the employment contract had to be done within the confines of the law.  See Sec 2A Labour Act setting out the purpose of the Act. In like manner Sec 12 B (1) sets out how the employee could be lawfully relieved of his job.  It is clear that the employer acted contrary to the law by approbation and reprobation that is by reinstating the employee and rescind the reinstatement.  Once he was finally back in his job it chose to come up with a counter resolution then dismissed him on that.  It is patently clear that all such actions were illegal and indeed make the decision susceptible to review.

Jurisdiction

It is equally settled law that where an Act is inconsistent with the labour Act such  Act should be constituted as deferring to the labour Act.  Whilst it is granted that the employee through the Urban Councils Act has powers to review its own decision it is imperative to note that it is not every decision that such applies to. All Labour disputes are clearly regulated by the Labour Act See Chingombe v City of Harare SC 177/20 where the judge reasoned that the jurisdiction of the High Court was ousted in a matter where it sought to deal with a labour review as a mandamus issue.  In like manner it cannot be gainsaid that the employers power had to be exercised within the confines of the labour Act. Once the employer had reinstated the employee it was no longer within its powers to rescind the decision contrary to the Labour Act.  If it indeed had a genuine excuse to revisit its earlier decision it had to follow due process as per the law. The fact that it did not do so makes for a good case for review at the employee’s instance. The jurisdiction argument being merited should succeed.

Reinstatement relief and  alternative of damages

It is settled law that review relief only seeks to correct the process and not the substance of a matter. See Khan v  Provincial Magistrate HC-39-06.  To that extent it is not necessary for the court if it were persuaded that a good case for ground of review existed to go into the substance of the matter and order reinstatement or damages.  See Muringi v Air Zimbabwe 1997 (2) ZLR. The argument advanced by the employer on this aspect is therefore without foundation or and should not succeed.

Costs

It is an inherent right of all parties to seek appellate or review relief where they view their decision affecting them as being out of step with what they consider the correct legal position.  It would therefore be unfair to grant a punitive costs order where no abuse of court process is clear See Mahembe v Matambo  HC-H-13-03. The court is satisfied that each party was within their rights to defend their position so no good case for a punitive order of costs has been made out. It follows therefore that costs on the ordinary scale should meet the justice of the case.

IT IS ORDERED THAT

The application for review being merited it be and hereby succeeds. The decision to rescind the employee’s reinstatement is set aside. Employer pays costs on the ordinary scale

Madhuku Law Chambers, Applicant’s Legal Practitioner

Gambe Law Chambers, Respondent’s Legal Practitioner