Fidelity Printers and Refineries (Pvt) Ltd v Fidelity Printers and Refineries Retrenchees

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/623/13
HELD AT HARARE ON 7TH NOVEMBER 2013
CASE
JUDGMENT NO LC/H/623/13
---------




IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/623/13

HELD AT HARARE  ON 7TH NOVEMBER 2013	      CASE NO LC/H/485/13

AND 22ND NOVEMBER 2013

In the matter between:-

FIDELITY PRINTERS AND REFINERIES (PVT) LTD		    Appellant

And

FIDELITY PRINTERS AND REFINERIES RETRENCHEES	    Respondents

Before The Honourable  Justice L.M. Murasi, Judge

The Honourable Justice L Kudya, Judge

For Appellant		Advocate T Mpofu

For Respondents		Mr P Mabundu (Legal Practitioner)

MURASI, J

Appellant is dissatisfied with the decision of the Arbitrator.  Appellant raises several grounds of appeal which are as follows;

The Arbitrator erred at law in finding that the dispute had not prescribed opting to resolve a legal point on the basis of preference as opposed to real evidence.

The Arbitrator erred at law in finding that the retrenchment exercise was illegal and void when there are separate agreements between the employer and each individual employee and the Works Council approved both the retrenchment and the package.

The Arbitrator erred at law in finding that the employer could resile from the individual agreements entered into with their employer.

The Arbitrator erred at law in finding that he had jurisdiction.

The Arbitrator erred at law in deciding the whole despute on technicalities and preferences as opposed to dealing with the matter on the merits.

The Arbitrator erred at law in referring the matter back to the Retrenchment Board for recommendations to the Minister when the Minister had already approved the retrenchment.

Appellant raised a point in limine at the beginning of the proceedings.  It

was  submitted that there were no Claimants before the Arbitrator as they are not known.  Appellant averred that a litigant may be a natural person or artificial entity and in casu there is no such entity in law known as the Retrenchees Committee.  Appellant further stated that the attempt by Respondents to submit a list of persons to the Arbitrator did not cure the problem as the founding documents should be clear as to who the litigants are.  Appellant submitted that though this was the first time this issue was being raised, a point of law can be raised on appeal.

Respondents’ submissions were that the omission to supply the names initially was not fatal to the case as the persons were individually known.  Respondents’ Counsel further stated that the list was supplied to the Arbitrator and Appellant long ago and should not be a bar to proceedings going on as no one was really prejudiced by the omission.

The Court notes that no founding affidavits were filed with the Arbitrator and this Court.  In making a decision on the point in limine the Court is guided by precedent.

In Retrenched Employees of National Breweries Limited as represented by Nathan Mudondo vs National Breweries Limited and Another  SC 292/01, Cheda JA had occasion to make a decision on a similar matter.  On page 2 of the cyclostlyed judgment, the learned Judge says,

“There is not even a single supporting affidavit from any of the employees concerned.  It is just his word to that effect.  This is certainly insufficient.  There should be a proper mandate to represent parties in an action of this nature...

In addition, the Court must be satisfied that such party authorised the

other to represent it, as an order for costs could be made against the losing party including the party that is represented.”

Further at page 3, the Judge has to say,

“I should point out that this is different from a class action, and that even in a class action one cannot just allege that he or she has been authorised by others to represent them.  The authority to represent others will have been given by a Judge in a Court application.”

The Court finds that the above-quoted case and dicta from the learned Judge apply to the present case.  Respondents have not regularised their appearance before both the Arbitrator and this Court as required by law.  A ruling on the point in limine also affects the decision of the Arbitrator as regards whether the Claimants were properly before him.  In the result, the point in limine has merit and should succeed.

It is ordered:

That the point in limine being with merit, be and is hereby upheld.

The decision of the Arbitrator dated 25th June 2013 is hereby set aside.

There is no order as to costs.

......................

L.M. Murasi

Judge

..................  I agree

L Kudya

Judge

Coglan, Welsh & Guest, Appellant’s Legal Practitioners

Mabundu Law Chambers, Respondents’ Legal Practitioners