Faith Mupangani v B W Kahari and Lusia T Mafunga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/743/2016
HARARE, 25 JULY 2016 &
18 NOVEMBER 2016
CASE NO LC/H/LRA/85/2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/743/2016

HARARE, 25 JULY 2016 &				  CASE NO LC/H/LRA/85/2016

18 NOVEMBER 2016

In the matter between

FAITH MUPANGANI						APPLICANT

Versus

B W KAHARI							1st RESPONDENT

And

LUSIA T MAFUNGA						2nd RESPONDENT

Before the Honourable Kudya J

The Applicant in Person

For the Respondent     P Nyeperayi (Legal Practitioner)

KUDYA J:

This is an application for the confirmation of a ruling by a labour officer in terms of section 93 (5) of the Labour Act as amended. The facts giving rise to this application are that the 2nd respondent (“the employee”) approached a labour officer after conciliation had failed in a matter where she claimed that the first respondent (the employer) had terminated her employment irregularly on notice. After hearing both parties on the matter the applicant (labour officer) ruled that indeed the employee’s employment had been terminated irregularly. In the result she ordered that the employee be reinstated to her original position without loss of pay and benefits. The employer was also ordered to pay the employee seven months’ worth of back pay totalling $3 375-00 judging from her monthly salary of $450-00. The order in question was meant to be satisfied within thirty days from the date of its making that is thirty days from 27 June 2016.

The labour officer is obliged by law as per the new Labour Amendment Act to present before the Labour Court and seek that his/her order be confirmed by the Labour Court.

It is in the spirit of that law that the labour officer has applied in the instant case to have her order confirmed. Whilst the employee supports the confirmation the employer is vehemently opposed to the said confirmation.

The labour officer contends that her order is good at law as it correctly interpreted the law and applied it to the facts of the matter which was at stake before her. In particular she contends that the labour amendment makes it clear that an employer cannot terminate on notice except in the circumstances listed in the Act that is by mutual consent or per a recognised Code of Conduct.

She maintains that since that did not happen in the case at hand it therefore means that the employee’s job was unlawfully terminated and she is therefore legally entitled to be reinstated to her original position without loss of salary or benefits or that she be paid damages in place of the reinstatement in a mutually agreed amount or amount quantified by the court.  She underscored the clear retrospective application of the said law and maintained that since there is no ambiguity in that retrospective phrasing it follows that same has to be followed throughout.

In response to the application the employee agreed in toto with the submissions by the labour officer and prayed that the said award be indeed confirmed by the Labour Court. On the other hand the employer was adamant that the ruling did not deserve to be confirmed. In fact it prayed that the ruling be set aside and that it be substituted by an order stating that the employee was not irregularly dismissed and that the employer owes her nothing. The employer argued that the law taking away the employer’s right to willy nilly hire and fire employees was a bad law vitiating the Constitution and deserving of being struck off as being a bad law.

It is important to observe that confirmation proceedings in the context of the amended Labour Act though now common place do not have a set procedure setting out how they should be disposed of. Resultantly when the Labour Court is seized with such applications it seems to be at large to deal with same as a review or appeal or both. It is only and until the law is set clearly as to what procedure should be followed that the court would be able to know how to deal with such matters. Being this as it may the court decided to deal with the confirmation as seeking the correctness or otherwise of the order both from a substantive and a procedural perspective. In essence what the court ought to do was to decide whether the order to be confirmed can be said to be in substantial compliance with justice. It is from these two levels that the instant application is decided.

Substantive

On this plane what is clear from the facts of the matter which were presented before the labour officer is that before her was a matter where an employee had indeed had her termination done outside the law. As indicated by the labour officer the labour amendment admits of no ambiguity that is on retrospective application. To go against the spirit of that law would be to do a injustice on the matter.

The law as quoted by the parties admits of retrospective application of legislation   In the court’s view there was therefore nothing remiss about the labour officer concluding that the employer had flouted the law. Whether the labour officer used the dismissal or termination term does not detract from the fact that the employee lost her job prematurely and the primary remedy for that was indeed reinstatement Uited Bottlers v Kaduya SC 63-05. In the same light the labour officer made it clear that the employee’s salary then was without debate hence her calculus from date of wrongful termination to date of reinstatement could not be said to have been irregular. It is indeed trite that evidence be led on quantification proceedings Redstar v Mabika SC 52-05  but it is clear that the figure awarded could be ascertained with sufficient clarity without calling for further evidence than the admission between the parties.

The court is therefore satisfied that it has no cogent basis to ask that the labour officer’s order be vacated on the substantive plane.

Procedural

It is pertinent to note that the case at stake does not have any procedural technicality that the labour officer’s order can be said to be tainted with, warranting it to be vacated. What only needs to be spoken about technically is the argument which the employer sought to introduce about the labour amendment being ultra vires the Constitution. Apart from the mere say so no submissions were made on that matter imploring the court to refer the argument to the Constitutional Court for a declaration of nullity of the said law. To that extent references to the constitutionality or otherwise of that law therefore remained for what they were. In the result the court was not persuaded that it had reason to refuse to confirm the ruling on the basis of this argument.

Ultimately it is clear that the labour officer’s ruling was sound at law and it had to be confirmed.

IT IS ORDERED THAT

The labour officer ruling of 27 June 2016 in the matter between Lusia Mafunga and Kahari legal practitioners be and is hereby confirmed with costs.

Costa & Madzonga, 1st respondent’s legal practitioners