Chamunorwa Muchekesi v Richmark Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT, NO LC/H/336/2024
HARARE, 24 MAY 2024
CASE NO LC/H/313/24
19 AUGUST 2024
CHAMUNORWA MUCHEKESI
APPELLANT
RICHMARK ZIMBABWE (PVT) LTD
RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 24 MAY 2024
19 AUGUST 2024

CHAMUNORWA MUCHEKESI

RICHMARK ZIMBABWE (PVT) LTD

Before the Honourable G. Musariiri Judge:

For Appellant - Mr W. Kamusasa, Attorney
For Respondent - Mr T. Ndoro, Attorney

MUSARIRI, J:

At the onset of oral argument in this Court, respondent raised three (3) points in limine which appellant opposed. The points shall be dealt with ad seriatim.

1. That the appeal is improperly before the Court for failure to exhaust domestic remedies
The point is expatiated in respondent’s heads of argument thus,

“6. The two provisions state that after the conclusion of disciplinary proceedings in terms of the Code of Conduct of an Employment Council, the aggrieved party should have recourse to a Designated Agent of an Employment Council if there is one for his undertaking and he is covered by the Collective Bargaining Agreement in such an Industry. Alternatively, he should approach a labour officer by way of appeal if there is no Employment Council for his industry or undertaking.

7. This means that exclusively jurisdiction to hear appeals from disciplinary hearings held in terms of Employment Codes of Conduct now lies with the Labour Officers (inclusive of Designated Agents), regardless of what the provisions of the Employment Code may be. Therefore, it is only persons who are grieved by the determination of a Designated Agent/Labour Officers, who have an automatic right of appeal to the Labour Court. A workplace determination by the employer is therefore not appealable to the Labour Court until the remedies provided in terms of sections 63(3b) or 105(5) as amended by Labour Amendment Act 11 of 2023.”

Per contra appellant argued in his heads of argument that


“8. The Labour Amendment Act of 2023 did not oust this Court’s jurisdiction to hear appeals directly from the workplace. Though the new section 93 of the Labour Act inserted by the amendment explained the jurisdiction of Labour Officers to conciliate and determine labour disputes, this does not ipso facto preclude an aggrieved Appellant from directly approaching the Labour Court from the workplace.

a. Section 89(1)(a) of the Labour Act as read with section 92 D continues to govern labour appeals to this court. These provisions have not been impeached, suspended or repealed.”

This Court is persuaded that a party can still appeal a workplace determination directly to this Court in terms of section 92 D (Part XI) of the Labour Act Chapter 28:01. The Labour Amendment Act No 11 of 2023 did not repeal section 92D which allows for direct appeals from the workplace. The amendments relied on by respondent only affected section 93 and 101 of Part XII of the Act.

2 That the appeal is fatally defective by reason of non-joinder of the Designated Authority:

In the course of oral argument respondent abandoned this point. Nothing further needs be said about the point.

3 That the appeal is fatally defective because the grounds of appeal are not clear and concise:

This point has been dealt with tersely in respondent’s heads of argument thus,

“27. In this current matter before the court, the appellant has set out grounds of appeal which are lengthy and sometimes repetitive and the Respondent has experienced difficulties in determining the legal causes which are underpinning this appeal. Accordingly, the Respondent prays that this appeal is dismissed with costs based on the above preliminary points.”

No attempt has been made to deal with each of the grounds to show the point which respondent wished to make. In other words, respondent expected the Court to go through the heads and make out a case for it. That is most certainly not the function of this Court or any other court. It is up to a party to plead its own case. The court’s role is to determine the merits of the case/s presented by the parties. The point alleged thus remained unsubstantiated.


CONCLUSION:

All the points raised by respondent lack substance and ought to be dismissed as devoid of merit.

Wherefore it is ordered that

1. The Respondent’s points in limine be and are hereby dismissed;

2. The Registrar of this Court is directed to re-set the matter for continuation on the earliest available date; and

3. Costs shall be costs in the cause.

G MUSARIRI
J-U-D-G-E
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