Daniel Kungweva v Beach Consultancy (Pvt) Ltd t/a Aviation Ground Services

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/426/2014
HELD AT HARARE ON 10 FEBRUARY 2014
CASE
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/426/2014

HELD AT HARARE ON 10 FEBRUARY 2014	           	         CASE NO. LC/H/648/13

AND 04 JULY 2014

In the matter between:-

DANIEL KUNGWEVA			             		Appellant

And

BEACH CONSULTANCY (PVT) LTD t/a      			Respondent

AVIATION GROUND SERVICES

Before The Honourable B.T. Chivizhe, Judge

For Appellant		Mr. C. Chisasa

For Respondent		Mr. E. Jere (Human Resources Manager)

CHIVIZHE, J.

RULING

The matter was placed before me as an appeal against a determination by the Responsible Disciplinary Committee handed down on the 6th August 2013 which determination found the Appellant guilty on a charge of violation of Schedule Part J, Sub-section 2 (b) of the relevant Code of Conduct and consequently a dismissal penalty was imposed.

In the appeal proceedings before me the Respondent through Mr. Jere took a point in limine, that, Mr. Chrispac Chisasa who was appearing for the Appellant had no right of representation under the Labour Act, [Cap 28:01].  This was pursuant to a letter by the Acting Secretary General of ZCTU on 11 December 2013 wherein the said official in writing to the Senior Judge Labour Court sought a bar on Mr. Chrispac Chisasa on the basis that Mr. Chrispac was not representing ZCTU, secondly the Trade Union called National Airways Workers Union (NAWU), whilst being registered union was not affiliated to ZCTU.  The Vice President of NAWU had however subsequently written a letter confirming Mr. Chisasa’s status as being an officer in the Union.  It was Respondent’s submission however before the court that the letter so written by the Vice President of NAWU was fraudulent because Mr. Chisasa was neither a trade union employee or an officer.  He therefore had no right of audience before the Labour Court.

Mr. Chisasa in response submitted that he had a right representation on the basis of Section 52 of the Labour Act [Cap 28:01] he was an official of a registered union (NAWU).  He admitted to being a former employee of the Respondent and that he was during his tenure at the Respondent a chairman of the Workers Union Committee and Executive Branch Chairperson at the union level.  He also admitted that he was dismissed from employment with the Respondent but maintained that he remained a member of the union i.e. NAWU.  He had thus filed a letter from the Vice President of NAWU confirming his status as a union officer.

Mr. Jere in his reply still challenged Mr. Chisasa’s right of representation in the Labour Court on the basis that he was not an officer or employee of NAWU and that the letter by the Vice-President of NAWU was fraudulent.  He also submitted that Mr. Chisasa lost his membership when he was dismissed from employed.  He could not therefore lawfully represent a litigant.  He requested for a two week adjournment for purposes of producing the NAWU constitution in order to prove that Mr. Chisasa was neither an employee nor officer of the same.  The postponement was consequently granted.

The Respondent through its filing on the 18th of February 2014 submitted the NAWU Constitution.  In a supporting affidavit drawn by Mr. Eckford Jere he averred that the Respondent still remained opposed to the Appellant’ s representation by Mr Chisasa as Mr. Chisasa is neither a legal practitioner nor a trade unionist as required under Section 96 (4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013. It was further submitted that the previous Trade Union officials are no longer allowed to represent employees in any dispute in any court of law.  It was his further submission that by virtue of the provision in the NAWU constitution (copy tendered) Mr. Chisasa is not a trade union official.  He prayed that Mr. Chisasa remained barred from representing the Appellant.

Mr. Chisasa in his counter arguments raised the point that Respondent had filed an out dated Constitution for NAWU.  He, in turn, submitted what he claimed to be the current NAWU Constitution.  He also requested the court to, on the basis that Respondent had failed to file and serve on him the filings of the 18th of February, 2014, strike off the notice filing.  He further submitted that in any event the NAWU constitution filed by Respondent was illegal as it had been superseded by amendment No. 3 of 2009.  He accused Mr. Jere of prevaricating and changing his line of defence on at least two occasions.  He accused him of seeking to introduce constitutional provisions through the back-door.  He maintained that he had a right of representation under Section 92 (b) of the Labour Act [Cap 28:01] the constitutional provisions notwithstanding.  Mr Chisasa prayed that the court dismiss the point in limine and proceed to entertain the appeal on the merits.

In a bid to resolve the issue the court on the 5th March, 2014 granted an order directing the Vice President of NAWU to file a supporting affidavit attesting as to Mr Chisasa’s status in the union and other relevant information.  The Vice-President of National Airways Workers Union filed an affidavit in which he averred that Mr. Chisasa is a member and an official of the Trade Union.  He averred that Mr. Chisasa’s right to belong to any trade union of his choice was derived from section 65 of the Constitution.  He submitted Mr Jere’s actions amounted to interference with operations of Trade Union and were thus in breach of the provisions in Labour Relations (Protection against any acts of interference between workers organization and employing organization regulation), 2003.  He further submitted that Mr. Chisasa is a fully paid member and in any event he had already appeared in the Labour Court in other proceedings (copy of judgment tendered in proof) Mr. Chisasa had a right to belong to any trade union of his choice – reference was made to decision in POSB vs Chimanikire HH 30/2005and to the Freedom of Association (Trade Unions) ILO Organisation Convention No 87 and 98 guaranteeing freedom to join any trade union of choice.

Both parties in submissions before me made reference in one way or the other to Constitutional provisions and relevant ILO conventions.  These are however are not important for a resolution of the issue before the court which is whether or not Mr. Chisasa has a right of representation before the court.  In this respect Section 92 of the Labour Act provides as follows:

A party to a matter before the Labour Court may appear in person or be represented and appear by –

a legal practitioner registered in terms of the Legal Practitioners Act [Chapter 27:07]; or

an official or employee of a registered trade union or employers organization of which the party is a member.

It is clear that in terms of the provisions in Section 92 (b) of the Labour Act [Cap28:01] it is only a Legal Practitioner or a Trade Unionist who has right of representation in the Labour Court.  The Respondent in the present proceedings challenged Mr. Chisasa’s right of representation on the basis that he is neither a member nor an official of NAWU.  The Respondent having so challenged his right of representation the onus shifted to Mr. Chisasa to prove that he is indeed a member and most importantly an official of NAWU.  Mr. Chisasa however initially placed reliance on the letter by the Vice-Chairman of NAWU in which he attested to the fact that Mr. Chisasa is an official of NAWU.  The Respondent having again challenged that letter as being fraudulent the court directed the Vice-President of NAWU to file with the court such proof in affidavit as to show Mr. Chisasa’s status in the relevant union.  The Vice-Chairman filed an affidavit form which, apart from making reference to the constitution provisions and ILO Convention reiterated the previous position that Mr. Chisasa is a member and official. The affidavit in my view is really of no probative value.  The Vice-Chairman did not tender any proof as to show that Mr. Chisasa is either a member or an official of NAWU.  He also failed to indicate clearly the basis on which Mr. Chisasa would be considered an official even after his dismissal from employment on the 29 August, 2013.

The Vice-Chairman in his affidavit raised arguments based on alleged interference by the employer organization in trade union business; Mr. Chisasa’s right to freedom of association under the Constitution and ILO Conventions.  The Respondent is in my view entitled to raise the issue of representation as a party to the proceedings.  Whilst it is clear Mr. Chisasa has rights under the Constitution that include the freedom of association that right can only be exercised subject to the provisions of an Act of Parliament.  In this case the Labour Act [Cap 28:01] provides that one can only represent another employee where it has been established that he is either a legal practitioner or a Trade Union official. This Mr. Chisasa has failed to do before this court. On the basis of the facts and the submissions before me  I am not satisfied that Mr. Chisasa has a right of representation before the Labour Court.  In the circumstances he is not properly before this court.

The appeal is consequently struck out.