Faith Mukarakate v Harare Municipal Medical Society

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
HARARE, 17 JANUARY 2024, AND
21 MAY 2024
JUDGEMENT NO LC/H/230/24
CASE NO LC/H/838/23
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE
HARARE, 17 JANUARY 2024, AND
21 MAY 2024

JUDGEMENT NO
LC/H/230/24
CASE NO LC/H/838/23

In the matter between:-

FAITH MUKARAKATE
APPLICANT

AND

HARARE MUNICIPAL MEDICAL
SOCIETY
RESPONDENT

Before the Honourable
Kachambwa
J

Mr M.M. Ndebele and Mr V.
Revesai

For the Appellant:

For the Respondent:
W. Chishiri

KACHAMBWA, J:

The Appeal

1 This is an appeal for a matter heard in terms of the National Code, S.I. 15 of 2006. The appeal was filed on the 23rd of October 2023. This was after the promulgation of Amendment Act No 11 of 2023. This amendment amended subsection (5) of Section 101. The amendment is to the effect that a party aggrieved by a ruling at the workplace or the process may appeal to a labour officer. Instead of doing so the appellant appealed directly to the Labour Court. A point in limine on the impropriety of the procedure was taken. The appeal was struck off on the 16th of January
2024. The appellant has asked for reasons for the judgment. So here be they.

The Amendment

2. The striking off of the appeal was based on the interpretation of the amendment of section 101(5) of the Labour Act [Chapter 28:01]. The amendment is a proviso which reads;

“Provided that at the conclusion of such proceedings and Notwithstanding anything to the contrary in an employment code, at the instance of any party aggrieved by those proceedings may appeal to a labour officer within 30 days of the conclusion of the proceedings whereupon the labour officer shall attempt to conciliate the dispute in terms of section 93 or exercise any other power provided for in that section.”

Section 101(5) to which was added the proviso reads –

“Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall be intervene in any such proceedings.”

3. The appellant’s argument was that the labour officer had no appeal jurisdiction on the matter. On one hand he said that the proceedings started before the coming into effect of the amendment. What started was the application for condonation but the appeal was filed after the promulgation of the amendment. It was argued that the filing was delayed by the introduction of the IECMS and therefore, the appellant should not be held responsible for the delay. He also argued that a labour officer or the National Employment Council did not have jurisdiction in terms of the industry code. However he could not cite the relevant section but could only confess that the parties had infact agreed that the industry code did not cover managerial employees of which the appellant was. The national code has to apply.


4. The appellant relied on the case of **Tafadzwa Sakarombe and Anor v Montana Carswell Meats (Pvt) Ltd SC 44/2020** which held that the labour officer does not have appeal powers for a matter that would have been resolved in terms of an employment code. Put to him that in fact that is what Labour Amendment Act No 11 of 2023 sought to correct he just remained adamant that the appellant should have direct access to the Labour Court for its appeal.

5. On the other hand the respondent’s argument was that the decision in **Montana Carswell Meats supra** is exactly what the amendment sought to change. With the appeal being filed after the amendment came into effect the process had to follow the new law. The amendment was tailor made for the mischief in **Carswell Meats**. It gave the labour officer appeal powers which the case had said he/she did not have.

**Analysis**

6. The relevant amendment is a reversal of the case the appellant sought to rely on. The appeal was filed after the amendment came in to effect. The appeal must be filed in terms of the new provisions.

**Disposition**

7. The appeal having been filed after the amendment had come into effect it has to be in terms of the new law. Appeal is with the labour officer. Accordingly the appeal is improperly before the court. It should therefore be struck off. No argument was put forward for costs not to follow the result and none presents itself on the face of it. It is therefore ordered that:


The appeal be and is hereby struck off with costs.
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