Garikayi Makota v Masimba Construction (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/93/21
HELD AT HARARE ON 7TH JUNE, 2021
CASE NO. LC/H/119/20
JUDGMENT NO. LC/H/93/21
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO. LC/H/93/21

HELD AT HARARE ON 7TH JUNE, 2021               CASE NO. LC/H/119/20

AND 16TH JULY, 2021				       X REF: LC/H/LRA/67/17

In the matter between:-				       X REF: LC/H/APP/383/17

X REF:LC/H/APP/313/18

GARIKAYI MAKOTA							Appellant

And

MASIMBA CONSTRUCTION (PRIVATE) LIMITED			Respondent

Before the Honourable Mhuri, J.

For Appellant		:	Mr. L.T. Nyama (Legal Practitioner)

For Respondent 	:	No Appearance

MHURI J.

After hearing appellant’s legal practitioner on the issue of Respondent’s failure to attend court for this appeal hearing, I directed that the hearing proceeds in terms of Rule 37 (b) of this court’s Rules, Statutory Instrument 150 of 2017.  The Rule provides,

“Where a party fails to appear at a hearing, the Court may.  According to the nature of the case, or as the justice of the case requires –

……………………………………………………

Proceed with the hearing on the merits.

…………………………………………………… ”

On the 26th October 2020, the Designated Agent for the National Employment Council for the Engineering Iron and Steel Industry of Zimbabwe (The Designated Agent) issued an Order to this effect,

“Whereupon after reading the documents filed of record and hearing submissions from both parties, I therefore order that the point in limine raised by the Respondent be and is hereby upheld”

This is an appeal against the above Designated Agent’s ruling on the sole ground that

“The Designated Agent misdirected herself when she ruled that the appellant’s claim had prescribed.”

Appellant’s prayer was that –

“1.	The appeal be allowed.

2.	The award given by the Designated Agent dated the 26 October 2020 be set aside and be substituted by the following:

“that the matter be remitted to the Designated Agent for quantification.”

3.	Respondent shall pay costs of suit.”

In response to the Court’s query as to whether this prayer was proper, Appellant’s legal practitioner submitted that it was not properly couched and that it should read –

The ruling by the Designated Agent be and is hereby set aside and

An order for quantification of damages in lieu of reinstatement should be carried out within 3 months of this Order.

A brief summary of the historical background of this case is as follows:

On the 11th April, 2016 the Designated Agent issued a ruling in which she ordered respondent to constitute a disciplinary hearing committee to hear appellant’s matter before the 30th April, 2016 upon failure of which the employee (appellant) would resume work on the 2nd May, 2016.

The Designated Agent’s order was not complied with by Respondent which prompted the appellant to write to the Designated Agent to apply to the Labour Court for confirmation of the ruling.

On the basis of appellant’s letter of request dated the 19th September, 2016, the Designated Agent filed the application with the Labour Court on the 23rd February, 2017 (LC/H/LRA/67/17)

On the 14th June 2017 the application was set down for hearing but the Designated Agent and appellant were in default, as a result the application was struck off.

On the 20th September, 2017 the Designated Agent filed with the Labour Court an application (LC/H/APP/383/17) for the reinstatement of the application for confirmation.  The application was dismissed for being improperly before the court.  (Judgment No. LC/H/732/2017)

On the 2nd May, 2018 the Designated Agent filed with the Labour Court an application LC/H/313/18 for condonation of late noting of an appeal against judgment LC/H/732/2017.

The application was by consent of all parties, struck off the roll on the 19th September, 2018, through Order LC/H/ORD/854/2018.

The effect of the Labour Court Order of the 19th September, 2018 was that the Designated Agent’s ruling remained a draft ruling as it stands not confirmed by the Labour Court.

By a letter dated the 2nd April, 2019 to the Respondent, Appellant demanded damages in lieu of reinstatement in the sum $35 000,00 to be paid before the 22nd April, 2019.  Respondent denied any obligation on its part to reinstate Appellant through its letter dated the 16th April, 2019.

By another letter dated the 12th September, 2019 appellant notified Respondent of his intention to refer the matter to the National Employment Council for quantification of damages, which referral he eventually did on the 20th March, 2020.

The Designated Agent set down and heard the application on the 13th October, 2020 and issued her ruling on the 26th October, 2020 which ruling is the basis of this appeal.

I now turn to consider the appeal.

At the beginning of the hearing, the Designated Agent heard a point in limine raised by the Respondent which put into question the Designated Agent’s jurisdiction to hear the application.  To quote verbatim the Designated Agent’s minutes at page 8 of the record,

“At the beginning of the hearing the respondent raised a point in limine in which he indicated that the Designated Agent did not have jurisdiction to handle the matter without an order from the Labour Court.  He further stated that the application for confirmation of the ruling that was done to the Labour Court was dismissed because applicant had failed to attend the hearing and an application for reinstatement was done but it was again dismissed.  He therefore stated that without an order from the court the Designated Agent lacks jurisdiction to deal with the matter.”

Over and above this point, the Designated Agent mero motu raised the issue of prescription as the first ruling was issued on the 11th April, 2016.

In her analysis of the submissions made in respect of these two points, the Designated Agent held that the point raised by Respondent held water.  She observed that there was no Order from the Labour Court directing her to entertain the matter.  She also observed that the fact that appellant was pursuing a civil suit against the National Employment Council at the High Court, this should not have stopped him from applying for quantification of damages within 24 months as per section 94 of Labour Act [Chapter 28:01].

The Designated Agent‘s ruling after analysing the parties’ submissions, was as stated earlier that

“…………I therefore order that the point in limine raised by Respondent be and is hereby upheld.”

In essence, she declined to hear the application on the basis that she lacked the jurisdiction to do so because the Labour Court did not clothe her, through an order with the jurisdiction to do so.  Indeed prescription was discussed but it was not the deciding factor why the Designated Agent declined to entertain the application.  Her ruling is quite clear and if prescription was to be a ground for declining to hear the application, she could have simply stated so in her ruling.

Appellant’s ground of appeal is based not on the issue of jurisdiction but prescription.  In my considered view, it was therefore wrong for the appellant to have the ground of appeal solely on the issue of prescription as it was not factored in the Designated Agent’s ruling.

I agree with the Respondent’s submission that appellant does not contest the findings on jurisdiction.  He is silent on the jurisdiction issue in his heads of argument and in his oral submissions in this Court.  He only replied to the Court’s observation that his appeal was on prescription whereas the Designated Agent’s ruling was on jurisdiction.

Intertwined, as submitted by appellant or not, I find that appellant’s failure to include the jurisdiction issue as a ground of appeal and his failure to submit on it is a fatal defect which renders his appeal defective.

To that end, I will not delve into the relief being sought by appellant.

Consequently it is ordered that the appeal be and is hereby struck off.

NYAMA LAW CHAMBERS – Appellant’s legal practitioners