Hwachi B v Obert Muzawazi & Mutare City Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/19/2021
HARARE, 12 JUNE, 2020
CASE NO. LC/H/LRA/357/17
---------


IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/19/2021

HARARE, 12 JUNE, 2020		     	     CASE NO. LC/H/LRA/357/17

AND 26 MARCH, 2021

In the matter between:-

HWACHI B							Applicant

Versus

OBERT MUZAWAZI					1st Respondent

MUTARE CITY COUNCIL					2nd Respondent

Before The Honorable L. Hove, Judge:

For Applicant:				In Person (Labour officer)

For 1st Respondent:				Sawyer & Mkushi (Legal Practitioners)

For 2nd Respondent:				Messrs Bere Brothers (Legal Practitioners)

HOVE J:

This is an application for confirmation of a draft ruling. The application is made in terms of section 93 (5a) of the Labour Act [Chapter 28:01] ( “The Act” ).

History

When the matter initially came before the Labour Court, the 2nd respondent raised some constitutional issues and the matter was referred to the constitutional court, the constitutional Court struck the matter off its Roll.

The matter was then set down again before the Labour Court for the court to deal with the merits of the application.

Background

The 1st respondent was employed by the 2nd respondent as a town clerk. He resigned from his position on or about 26/1/2016. He approached the applicant alleging that the 2nd respondent had not paid him his terminal benefits which included;

Severance salary

Cash in lieu of leave

Salary arrears

Performance bonuses

Arrears school fees

The matter was set down for conciliation before the applicant  and the applicant, when asked by the court to outline what he had done to or in conciliating the parties stated the following;

“I invited the parties to a conciliation hearing I explained the dispute to the parties and gave them time to talk to each other”.

The applicant also explained that after inviting the parties for the conciliation hearing, they postponed the matter at least 2 times to try and find each other. He explained the dispute that it was one of right and the parties postponed the matter 3 times for them to try and settle the matter amicably. The parties however failed to find each other. After the parties had failed to agree.  The applicant issued a certificate of no settlement.

He said that he allowed the parties to talk to each other since he is not supposed to directly influence the parties.

The 2nd respondent submitted that the applicant dismally failed to conciliate the parties, he failed to call for evidence and the claims by the 1st respondent were not proved before him. It was submitted that the applicant had failed to deal with factual issues argued before him. Evidence was produced but the applicant had ignored or disregarded the 2nd respondent’s argument and placed the onus to prove the respondent’s damages on the 2nd respondent, contrary to the provisions of law as enunciated in cases like; Haywood Investments (Pvt) Ltd t/a GDC Hauliers v Zakeo SC 32/13; Book v Davison 1998 (1) ZLR 365; Nyahondo v Hokonya 1997 (2) ZLR 457.

The 2nd respondent’s representative also submitted that the only entitlements the respondent was entitled to upon resignation were the statutory benefits and anything in his contract of employment. He argued that the applicant’s award was not supported by anything as no evidence was led. He submitted that there was a ministerial directive which ought to have been taken into account by the applicant before making his award.

Further it was argued on behalf of the 2nd respondent that the Labour court could not call for evidence at this stage. It had to proceed on the basis of the record and since the record does not show this evidence, the onus to prove damages had not been satisfied.

The court asked the parties to consider the case of Isoquant Investments (Private) Limited t/a Zimoco v Memory Darikwa CC6/20 and address it on the role that the Labour Officer plays.

The employer’s representative was clearly under a misunderstanding of the Role of the Labour officer. This misunderstanding was shared by the employee’s representative and the Labour officer himself. The parties appeared to think that the employee’s responsibility was to prove its damages before the Labour officer. The employee’s representative argued that they had proved their damages.

The role of the Labour officer when he acts in terms of section 93 (5a) of the Labour Act [Chapter 28:01] is however not to hear arguments in proof of claims. He sits as a conciliator. The court has clarified this position in the case of Isoquant Investments (Private) Limited t/a Zimoco v Memory Darikwa CCZ 68/17. The honourable Chief Justice stated as follows;

“The first duty of a Labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle it. The Labour officer must determine a process to attempt to resolve the dispute. The process may include mediation of the dispute, conducting a fact-finding exercise and making proposals to the parties on how the dispute may be resolved. The Labour officer should, however, generally undertake the process of fact finding and recommend proposed solutions to the parties in order to guard against perceptions of bias. A conciliator should not Judge. (my emphasis)”.

The Labour officer is under an obligation to do all that can reasonably be done by a conciliator to assist the parties to resolve the dispute by agreement without imposing the solution on them. The parties remain the masters of the process. The terms of any settlement must remain the responsibility of the parties. That entails acquisition of the necessary skills in conducting conciliation itself is largely dependent on the parties willingness to settle. There must be evidence that the parties engaged in serious bona fide discussion of matters over which they disagreed. There must be evidence that the Labour officer understood his or her role as a conciliator and actively exercised his or her functions. If a Labour officer engaged in anything that is not conciliation, it is a nullity…….

A Labour officer engaged in conciliation must follow a systematic approach in the process in seeking consensus between the parties on the matters in dispute”.

Allegations that the Labour officer disregarded submissions of one side and sided with the other side have been made, whether this was what happened or not is indicative of the fact that there was not a genuine conciliation process. It is evident that the Labour officer did not appreciate his role. He did not assist the parties at all to resolve their dispute and according to the Isoquant case (supra) the process was a nullity.

The case is thus improperly before this court. There ought to have been a genuine attempt to conciliate the parties before the matter can be referred to this court.

In the celebrated case of Mc Foy v Africa United Company Ltd (1961) 3 All ER 1169 the court said if an act is void, then it is a nullity, it is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void although it may be convenient for the court to state the obvious.

In the result, the process before the Labour officer was a nullity and the matter must be sent back for the conciliation process to take place. It is improperly before the court.

Messrs Sawyer & Mkushi Law Chambers	-	1st respondent’s legal practitioners

Messrs Bere Brothers	-	2nd respondent’s legal practitioners