Elvis Machikiti v 1st Respondent Company & 2nd Respondents

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/597/16
HARARE 19 SEPTEMBER 2016
CASE NO.
JUDGMENT NO. LC/H/597/2016
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IN THE LABOUR COURT OF ZIMBABWE  	     JUDGMENT NO. LC/H/597/16

HARARE 19 SEPTEMBER 2016			         CASE NO. LC/H/LRA/40/16

AND 23 SEPTEMBER 2016

In the matter between:-

ELVIS MACHIKITI					Applicant

The application placed before me is for confirmation of a ruling made in terms of Section 93 (5) (c) of the Labour Act [Cap 28: 01] as amended.  The application is opposed.

Background Facts

The Applicant is a Designated Agent for the Employment Council for the Food and Allied Industries.  The 1st Respondent is a company duly registered under the laws of this country. It is also the former employer of the 2nd Respondents.   The 2nd Respondents are the former employees of the 1st Respondent.

The 2nd Respondents were employed on the basis of their contracts of employment which were terminated by 1st Respondent upon being given three months notice.  The 1st Respondent was relying then on Section 12 (4) of the Labour Court [Cap 28:01] which allowed for termination of contracts on notice. Following the gazetting of the Labour Act Amendment Act No. 5 of 2015 the 2nd Respondent requested 1st Respondent for payment of their terminal benefits.  When 1st Respondent failed to pay them they referred their claim for alleged unfair termination of notice and non-payment of terminal benefits to the Designated Agent (Applicant).  After considering the submissions by the parties the Applicant made a ruling in which he found that the 2nd Respondents’ claims were valid and that the 1st Respondent should comply with Section 12(c)(2) of the Labour Amendment Act No.5 of 2015  by paying the minimum retrenchment packages as set out therein.

The Applicant’s submission before me  is that the 1st Respondent having failed to comply with his ruling by the restitution day the Applicant seeks confirmation  of his ruling as prescribed in Section 93(5)(a) and (b) of the Labour Act [Cap 28 : 01] as amended by the Labour Amendment Act Number 5 of 2015.  The Applicant is not claiming any costs.  The Applicant’s prayer is for an order in terms of the draft order filed of the record.

Main Application

The 1st Respondent in its opposition papers opposes the main application and raises a counter-application.  In respect to the main application before the court the 1st Respondent’s position is that the ruling was wrongly arrived at. The 1st Respondent submission is that the Applicant misdirected himself in ordering that 1st Respondent should pay the minimum retrenchment packages since the 2nd Respondents were lawfully terminated at the material time by the 1st Respondent.  In regards the retrospective application of the provisions of the new Section 12(4) (a) the 1st Respondent’s attitude is that the provisions were on their face unconstitutional.  The 1st Respondent took the point before the Applicant who however did not rule on that point.  The 1st Respondent is again raising the same point and two others before the Labour Court through its counter application.

Counter-Application

The 1st Respondent in its counter-application submits an application for a referral in terms of Section 175(4) of the Constitution to the Constitutional Court of the following four issues.

Whether or not Section 18 of the Amendment Act violates Section 56(1) of the Constitution and should therefore be struck down;

Whether  or not Section 18 of the Amendment Act violates Section 3(2)K of the Constitution and should therefore be struck down;

Whether or not Section 93(5) of the Act as amended is in contravention of Section 169(1) of the Constitution.

Whether or not Section 93(5) of the Act as amended is in contravention of Section 68(1) and 69(2) of the Constitution.

On the basis of its submissions on these constitutional issues arising 1st Respondent submits that the court should hold in abeyance the current proceedings and refer these same issues to the Constitutional Court for determination.

The 2nd Respondent’s response to the application and the counter-application is basically that the application for confirmation of the ruling is properly placed before the Labour Court.  In regards the retrospective application of the provisions in Section 18(5) it is 2nd Respondent’s submission that the Parliament included these retrospective provisions in the Labour Amendment Act Number 5 of 2015  to address a specific problem and to safeguard the rights of employees.  It is 2nd Respondent’s further view that the application for referral is a time wasting ploy by the 1st Respondent.  The 2nd Respondent’s prayer is that the court strike off the counter-application as  it in any event   falls foul of the Constitutional Court Rules 2015 which require only matters that are not ‘frivolous or vexatious’  to be referred to that Court.

The Applicant in his reply both the main and the  counter-application placed before the court submits that his application for confirmation is properly before the court but however if,  the court is of the view that valid constitutional issues arise then the court ought to refer those issues to the Constitutional Court.

Constitutional Provisions

On the basis of Section 175(4) of  the Constitution  and the decision  in Chihara & Ors vs The Provincial Magistrate Francis Mapfumo No  &  The Prosecutor General  CC 612013  this court can  refer  any constitutional issue arising during proceedings before it provided the issue is not  frivolous or vexatious.  The effect of any such referral according to the Chihara decision is a deferment of the proceedings in the lower court pending a determination of the constitutional issues so referred.

In regards the meaning of the words “frivolous and vexatious” Gubbay CJ (as he then was) in the matter of Martin vs Attorney-General & Another.... 1993(1) ZLR 153(SC) stated as follows:

“In the context of s 24 (2), the word “frivolous” connotes, in its ordinary and natural meaning, the raising of a question marked by a lack of seriousness; one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it.  The word “vexatious”, in contra-distinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party, in full appreciation that it cannot succeed; it is not raised bona fide, and a referral would be to permit the opponent to be vexed under a form of legal process that was baseless.  See Young v Holloway & Anor [1895] P 87 at 90-91; Dyson v Attorney-General [1911] 1 KB 410 (CA) at 418; Norman v Mathews (1916) 85 LKB 857 at 859; S v Cooper & Ors 1977 (3) SA 475 (T) at 476 D-G; Fisheries Development Corporation of SA Ltd v Jrgensen & Anor 1979 (3) SA 1331 (W) t 1339 E-F”

On the basis of the law and the authorities cited the court is satisfied upon consideration of the issues that the 1st Respondent intends to place before the Constitutional Court that the issues are by no means frivolous or vexatious.  Those issues would need to be fully ventilated at the apex court before this court can proceed to determine the application before it.

In the event the following order is made;

The counter-application is allowed

The Constitutional issues, not being frivolous or vexatious, are, duly referred to the Constitutional Court in terms of Section 175(4) of the Constitution

The application proceedings before this court are consequently held in abeyance pending a determination of the issues before the Constitutional Court

There is no order as to costs.

Lunga Gonese Attorneys, 1st respondent legal practitioners