Gilbert Rumadhi v Colcom Foods Division

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/06/2021
HARARE, 28 OCTOBER 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/06/2021

HARARE, 28 OCTOBER 2020			     CASE NO. LC/H/REV/50/20

AND 19 FEBRUARY 2021

In the matter between:-

GILBERT RUMADHI					Applicant

And

COLCOM FOODS DIVISION				Respondent

Before Honourable B.T. Chivizhe, Judge

Applicant 			In person

For Respondent		Mr T. Sibanda (Legal Practitioner)

CHIVIZHE, J:

This is an application for review of a determination made by the Designated Agent, E. Machikiti on the 13th of July, 2020. The application is premised on Section 92 EE of the Labour Act [Cap 28:01]. The application is opposed.

It is necessary for the Court to outline initially the background facts to this matter. The Applicant was initially employed by Kinsfolk Enterprises a subsidiary of Innscor Africa. He was employed as a ‘pastry sheeter’. On 1 December 2017 Kinsfolk Enterprises was transferred to the Respondent Company. On 21 December 2017 the Applicant along with 20 other employees were notified of their transfer from the Respondent’s baking industry to the meat fish, poultry and abattoir industry. The employees were now falling under the Respondent. Through the letter of transfer the Respondent advised the Applicant would continue to fall under the baking industry and that his salary, grade, job description and pension benefits would remain the same.

Sometime later an agreement was allegedly reached at the Works Council for the Applicant and the 20 other employees to adopt the meat, fish, poultry and abattoir conditions of service. The agreement was meant to supercede the employees’ original contracts of employment. The 20 other employees accepted the change. The Applicant however rejected the changes on the basis that the conditions were less favourable to the conditions he was entitled to under the Baking Industry. The Applicant as a result referred a complaint of Unfair Labour Practice to the Respondent’s Grievance Committee in July 2010. He was alleging that he was not being paid according to the Baking Industry National Employment Council Agreement. It was his further position that the Respondent had unilaterally altered his conditions of service.

The Respondent conducted a grievance hearing. The finding was that as Applicant conditions of service were now aligned to the meat, fish, poultry and Abattoir Industry Collective Bargaining Agreement the benefits and conditions from the Baking Industry no longer applied to him. The Applicant was still aggrieved he referred the matter for conciliation before the Designated Agent. A Certificate of No Settlement was issued at the end of that process. The matter was thereafter referred to arbitration. The Arbitrator in his ruling found that he had no jurisdiction under the Code of Conduct to deal with the matter. It was his further finding that the Applicant’s recourse lay in an appeal to the Labour Relations Tribunal. The Applicant still aggrieved noted an appeal to this Court based on the ground that the Arbitrator by declining jurisdiction to determine his appeal had grossly erred.

After the hearing of the matter this Court handed down a judgment dismissing the appeal. The Court held that the Applicant had never denied being part of an in-house agreement under which the employees were to be moved to the meat industry conditions of employment. The court decision was essentially based on the merits of the matter. The court also noted in passing that the appeal in any event had been filed outside the 14 day prescribed period under the Code of Conduct. The Applicant was disgruntled with this court judgment he filed an appeal with the Supreme Court. His appeal was noted on two grounds. Firstly, that the Labour Court had erred and misdirected itself by finding that there had been an agreement by the parties to vary the conditions of service between the parties whereas there had been no such written agreement. The second ground of appeal was that the Respondent had indeed unilaterally varied the terms of conditions contrary to the terms and conditions of his transfer in terms of Section 16 of the Labour Act as read with Section 2A(C) of the same Act.

Before the Supreme Court the Respondent raised a point in limine that the grounds of appeal were improperly taken in view of the fact that they related to what the Labour Court had stated obiter.   The point in limine was upheld by the Supreme Court. In a judgment reference SC 19/20 the Supreme Court found that this Court had misdirected itself in failing to pronounce itself on the sole ground of appeal placed before it as to whether or not the Arbitrator had properly declined jurisdiction to hear the appeal placed before him. The Supreme Court also found that this Court had further misdirected itself by proceeding to determine the matter on the merits and addressing itself on issues which had not been considered by the arbitrator. This was clearly contrary to the role of this court sitting as it were as an appellate tribunal. On this basis this Court was found to have improperly determined the matter.  The Supreme Court consequently dismissed the appeal placed before it.

The Applicant has now approached this Court with the present application for review. The Applicant seeks to have the decision of the Designated Agent handed down on 13 July 2020 reviewed on the basis of one ground which has been outlined as follows;

“1.	The Designated Agent erred at law in declining to hear the Applicant’s claim on the incorrect finding that he lacked jurisdiction when in fact he had it requisite jurisdiction since res judicata does not apply in this instance.”

In relief the Applicant prays that this court grants an order to the following effect;

“1.	The application to succeed with costs.

2.	The decision of the Designation Agent be and is hereby set aside and substituted with the following:

“The claimant is properly before me. I shall proceed to hear the merits of the claim.””

The application is opposed by the Respondent. Through its Notice of Opposition Respondent has raised three points in limine which points were also elaborated upon by Counsel on the date of hearing of this matter. The points of limine are as follows;

Prescription. The Respondent submits that the present application is prescribed. The dispute arose in 2007. The dispute having exceeded the two year legal limit as provided in Section 94 of the Labour Act [Cap 28:01] the matter is improperly before the court and ought to therefore be thrown out.

No cause of Action

The Respondent also submits that in any event no reviewable ground has been raised by the Applicant before the Court. The ground of review as placed before the court does not constitute a ground in terms of Section 92 EE of the Labour Act [Cap 28:01]. This is particularly in view of the application being premised on the allegation that the Designated Agent ought to have found he had jurisdiction. The Respondent submission is an application for review can only be made upon an allegation that the judicial authority lacked jurisdiction and not the opposite.

The last point in limine taken is that in any event the matter is res judicata. The respondent submits that this matter having already been through the various channels as laid in the Code of Conduct even up to the Supreme Court the court should find that the matter is res judicata.

On the basis of these points the Respondent prayer is for the application to be dismissed with costs on a higher scale. On the date of hearing the parties appeared and presented arguments based on their position as taken through their written submissions. The Applicant having initially objected to the Respondent participation in the proceeding as Respondent was technically barred the Applicant later conceded to the Respondent oral application for upliftment of bar and for condonation for late filing of Heads of Argument. The application having been granted by Court the Respondent filed Heads of Argument which form part of the record.

Ruling

The court has opted to address the second point in limine initially as a resolution of this point may be dispositive of the matter should the court find that the point is merited. The issue raised is jurisdictional in nature. The Respondent submits that the Applicant has no cause of action as through his papers he seeks to have this court compel the Designated Agent to have jurisdiction a situation which is anathema to the provisions in Section 92 EE of the Labour Act [Cap 28:01] under which this court is granted power to entertain a review application. The Applicant in response to the point submits that the matter is properly placed before this court.  He further submits that the Respondent continues to perpetrate an unfair labour practice against him. He raised a grievance at the workplace which the Designated Agent ought to have dealt with as mandated under the Act. The Applicant submission is this court cannot in the circumstances dismiss the matter before it as the grievance still remains unresolved.

The Respondent preliminary point is clearly with merit. The point has a bearing on the issue as to whether there is a cause of action before this Court. Section 92 EE of the Labour Act [Cap 28:01] provides the grounds on which a review may be brought before this Court. There are three grounds but we are concerned with the first which reads;

“(a)	absence of jurisdiction on the part of the Arbitrator or adjudicating authority concerned.”

It is clear that an application for review based on jurisdiction can only be made upon one alleging that the judicial authority lacked jurisdiction. The Applicant in this case however seeks to have the court to either clothe the Designated Agent with jurisdiction or to compel him to find he has jurisdiction. The Applicant did not plead absence of jurisdiction. He has instead pleaded the opposite, that is presence of jurisdiction. This is also very apparent from the relief he is seeking which is that this Court to order as follows;

“The determination by the Designated Agent dated 13 July 202 be and is hereby set aside and substituted with the following;

“The claimant is properly before me. I shall proceed to hear the merits of the claim.”

It is very clear that the relief sought is not only incompetent but is also not available as it is contrary to the clear provisions of Section 92 EE (1) (a) of the  Labour Act [Cap 28:01]. The Labour Court being a creature of statute is after all bound to the clear provisions of the Labour Act [Cap 28:01].  On this basis therefore the present application ought to therefore be dismissed. It is accordingly ordered as follows;

The application for review be and is hereby dismissed with no order as to costs.

Chinawa Law Chambers, respondent’s legal practitioners