Elvis Machikiti N.O. v Dairibord Zimbabwe Limited and G. Maisiri and 6 Others

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IN THE LABOUR COURT OF ZIMBABWE
LC/H/659/16
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/659/16

CASE NO. LC/H/LRA/47/16

HELD AT HARARE

ON 20 SEPTEMBER 2016 & 21 OCTOBER 2016

BEFORE THE HON. MR. JUSTICE L.M. MURASI

IN THE MATTER BETWEEN:-

ELVIS MACHIKITI N.O.					APPLICANT

AND

DAIRIBORD ZIMBABWE LIMITED			1ST RESPONDENT

AND

G. MAISIRI AND 6 OTHERS				2ND RESPONDENT

Applicant							In Person

For 1st Respondent					Miss L. Shambamuto

No Appearance for 2nd Respondent

MURASI J.,

At the conclusion of the oral submissions I made an Order confirming the Ruling by the Applicant in the following manner:

“1. The application for confirmation of the Draft Ruling by the Applicant be and is hereby granted.

2. The 1st Respondent be and is hereby ordered to comply with Applicant’s Ruling with effect from 30 days from the date of this order.

3.     There is no order as to costs.”

I further indicated that the reasons for granting the order would follow. The following are the reasons.

2nd Respondent (hereinafter referred to as the employees) were employed by 1st Respondent in various capacities. They all reached retirement age and left employment. The employees were entitled to receive pension emoluments in terms of their contracts of employment. During the tenure of their employment, the employees entered into a pension scheme with a Fund styled Comarton Consultants (Pvt) Ltd. The Fund duly calculated the pension emoluments due to the employees and informed both the 1st Respondent and the employees. On receipt of this information, the employees were dissatisfied and engaged their union. The union in turn approached the 1st Respondent and stated that the Collective Bargaining Agreement provided that in situations as the present, where paltry amounts were  paid out, 1st respondent was enjoined to make good the difference between the actual pension paid out and what the employees would have realised had they been paid a gratuity. 1st Respondent was not in agreement and the matter ended up with Applicant who determined that 1st Respondent should pay to the employees the various amounts calculated by the employees in their respective claims.

At the commencement of the oral hearing, the Applicant stated he abided by the documents filed of record and had nothing to add. Miss Shambamuto, for 1st Respondent stated that she  abided by the documents filed of record and had nothing to add, for 1st Respondent, also stated that she abided by the documents filed of record and had nothing to add. The Court inquired of Miss Shambamuto whether she still wanted to raise the point in limine as outlined in her heads of argument and she confirmed this position. The 1st Respondent, in brief, submitted in the heads of argument that the employees were not entitled to any further payments as they had benefited from the Pension Fund in terms of the Pensions and Other Benefits Act, (Chapter 16:01). It was argued that for the employees to be awarded the further payments as prescribed by the Collective Bargaining Agreement was to encourage unjust enrichment. It was further submitted that the CBA could not override the Act and to that extent was null and void. Miss Shambamuto further submitted in those heads of argument that to the extent that there was this inconsistency between the contract (CBA) and the Act, the contract was therefore a nullity. It was further argued that the employees had entered the agreement with the Pension Fund voluntarily and thus could not be heard to say it was unfair.

It is trite that a court, before which an interlocutory application has been made, should not proceed to determine the matter on the merits without first determining that application. (See Heywood Investments (Private) limited T/A GDC Hauliers vs Pharaoh Zakeyo S 32/2013) 1st Respondent has raised the point in limine that 2nd Respondent, as cited, is not a legal persona and therefore there was no application before the Court. The 1st Respondent went on to cite a plethora of cases which dealt with such an issue. The matter should be addressed in a two-pronged manner. 1st Respondent avers that because 2nd Respondent is not a legal persona, then there is no application before the Court. This is clearly an erroneous view to hold. 2nd Respondent is not the Applicant. The Applicant is properly before the Court and thus it cannot be held that there is no application before the Court. If, and underline the word if, the 1st Respondent was correct in holding that view, it could have applied to have 2nd Respondent’s citation expunged from the record as the Applicant was properly before the Court. The second issue is that the 2nd Respondent was clearly identifiable from the documents filed with the Applicant. The case law referred to by 1st Respondent deals with cases where the claimants have not been identified in the papers. I drew this to the attention of Miss Shambamuto. For example, page 14 of the record shows the employees clearly listed in the proceedings before the Applicant. This case is clearly distinguishable from the cases cited by the 1st Respondent. The Court also drew this to the attention of Miss Shambamuto and her response was that these were instructions from client. The point in limine is therefore without merit and should be dismissed.

It is my view that 1st Respondent made an erroneous interpretation of the law. 1st Respondent predicates its view that the CBA, being subsidiary legislation, cannot override the ‘Principal Act’. In this case the 1st respondent takes the view that the Pensions Act is the ‘Principal Act’. The Court reminded Miss Shambamuto that the CBA was promulgated in terms of the Labour Act. It therefore forms part of that Act. The CBA, which is Statutory Instrument 34 of 2012, in section 26 thereof, grants to employees in peremptory terms, sums of money to be derived where an employee receives less pension emoluments than what that employee would have realised were he/she to receive a gratuity. It is trite that courts are not there to make any law but to implement the law. The provisions in section 26 of the CBA are clearly unambiguous. Precedent has shown that where the words used are precise and unambiguous, then no more is necessary than to expound them in their natural and ordinary sense. The natural and ordinary sense in that provision is that where an employee receives a figure less than he/she would have realised had he/she been given a gratuity, then the employer is enjoined to pay the difference. Should the Court have recourse to the Pensions Act as urged by 1st Respondent? I think not. The provisions of section 2A (3) of the Labour Act (Chapter 28:01) are clear. The section provides:

“3. This Act shall prevail over any other enactment inconsistent with it.”

Asked by the Court to address on the above point, Miss Shambamuto stated that she did not have any more submissions as those were her instructions from the client.

It has been stated that a Court ought to look to nothing more and should not forsake the written law in order to implement the notion of equity. This has been urged on the Court by 1st Respondent. As already stated elsewhere in this judgment, the provisions dealing with the matter in case are clearly provided in the statute. It is my view that the Applicant was correct in holding that 1st Respondent was enjoined to pay the employees the respective sums of money as ordered.

The Court makes the following Order:

1. The application for confirmation of the Draft Ruling by the Applicant be and is hereby granted.

2. The 1st Respondent be and hereby ordered to comply with Applicant’s Ruling with effect from 30 days from the date of this Order.

3. There is no order as to costs.

MATSIKIDZE & MUCHECHE- 1st Respondent’s legal practitioners.