Jealous Zhakata v Zimbabwe Farmers Union & Anor

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/02/21
HELD AT HARARE ON 17th NOVEMBER, 2020
CASE NO.
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THE LABOUR COURT OF ZIMBABWE	       	         JUDGMENT NO. LC/H/02/21

HELD AT HARARE ON 17th NOVEMBER, 2020     CASE NO. LC/H/LRA/192/19

AND 19TH FEBRUARY, 2021

In the matter between:-

JEALOUS ZHAKATA							Applicant

And

ZIMBABWE FARMERS UNION						1st Respondent

And

ERIC MASHUMBA								2nd Respondent

Before the Honourable Mhuri, J.

Applicant		   :	In Person

For 1st Respondent :	Mr. K. Sithole (Finance Manager)

For 2nd Respondent :	Mr. Z. Windimani (Secretary for Legal Affairs)

MHURI J.

On the 11th April, 2019 applicant issued a draft ruling in the matter between ERIC MASHUMBA and ZIMBABWE FARMERS UNION.  In the ruling, applicant ordered 1st Respondent to pay 2nd Respondent an amount of $9 120,00 as underpayment of salaries.

The ruling was issued based only on 2nd Respondent’s written submissions as 1st Respondent had, despite knowledge of when it was mandated to file its submissions decided not to file any.  Applicant therefore issued the ruling without benefit of 1st respondent’s written submissions.

This is an application for the confirmation of applicant’s draft  ruling in terms of Section 93 (5a) and (5b) of the Labour Act [Chapter 28:01] as amended by the Labour Amendment Act 5 of 2015.

1st Respondent is opposed to the draft ruling being confirmed.  It raised, as a preliminary issue, the issue of prescription arguing that 2nd respondent’s claim had already prescribed when it was referred to applicant.  It was submitted that it was referred in October 2018 when the two years prescribed by the law, (Section 94(1) of the Labour Act) had ended in June 2018.

On the merits, 1st respondent’s position was that applicant issued the ruling based on falsehoods and dishonesty by 2nd respondent.

The 2nd respondent is not averse to the draft ruling being confirmed.  He takes issue with the 1st respondent’s position of raising new issues in this Court which it did not raise before the applicant.  It was his position that his claim was not prescribed as it was earlier raised before the first conciliator Mrs Sigauke in May, 2018 and thereafter before the applicant,  On the merits, it was 2nd respondent’s position that 1st respondent did not respond to this claim and neither did it file any written submission as ordered by applicant, therefore it cannot be allowed to challenge the ruling on issues it did not raise before the applicant.  To that extent, the applicant cannot be faulted for not dealing with issues that were not placed before him.  Reliance was made on the case of

CHIKANDA  v  UTC LIMITED SC 7/99

As regards the issue of 1st respondent raising new issues before this Court, which issues were not placed before the applicant, the record shows that this far from being the truth.  During conciliation proceedings of the 8th February, 2019, the issue of prescription was discussed.

A question was asked,

“Isn’t the matter prescribed in terms of section 94 of the Labour Act?”

The answer was

“We believe it is not because the claimant once reported this claim in May 2018……”

Further, in his summary of submissions and analysis applicant dealt with the issue and determined that the complaint had not prescribed.

In that regard therefore the issue of prescription was properly raised by 1st respondent before this Court.

The case of

ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO

v

MEMORY DARIKWA   CCZ 6/2020

put it clearly that it is at the Labour Court that a hearing of the matter commences.

At page 27 of the cyclostyled judgment, the Chief Justice succinctly stated

“A perusal of Section 93 (5b) of the Act is reflective of the fact that a hearing commences when the matter goes for confirmation before the Labour Court.  It is not coincidental that the term “hearing” appears for the first time in the same section in terms of which the matter is brought to the Labour Court for confirmation.”

At page 26 of the same judgment, the Chief Justice had this to say,

“Confirmation of a draft ruling is a legal process.  The judicial officer in the Labour Court is tasked with applying the principles of the law to the facts.  He or she is not merely rubberstamping the “draft ruling” of the Labour Officer.  The judicial officer is required to thoroughly investigate the matter.  A Judicial Officer is bound by the law of confirmation.  He or she must research the procedure and applicable law.”

Considering the above, I find that the 1st respondent’s submissions on the merits are also properly before the Court.

Section 94 subsection (1) of the Labour Act reads as follows:-

“(1) 	Subject to subsection (2), no Labour Officer shall entertain any dispute or unfair labour practice unless –

it is referred to him; or

has otherwise come to his attention, within two years from the date when the dispute or unfair labour practice first arose.

(2)	……………………………………………………

(3)	…………………………………………………...”

The undisputed factual background is that 2nd respondent was in 1st respondent’s employ from 1985 until he was retrenched in June 2016.  The retrenchment package as per the attachment to the retrenchment letter dated 1st April 2018 by the Executive Director was calculated at the monthly salary of $430,00.

Filed or record are:-

A contract of employment as a bookkeeper dated the 17th August, 1985 by Zimbabwe National Farmers Union in which an amount of $400,00 is stated as the monthly salary.

A three months contract of employment as a Properties Officer with Zimbabwe Farmers Union for the period 3 January 2011 to 31st March 2011.  The salary was now $240,00.

A contract of employment as a Properties Manager for the period 1st September 2011 to 31st July, 2013 with a salary of USD400,00.

A contract of employment as Properties Manager for the period 1st August,2013 to 31st December 2013 with a monthly salary of USD120,00.

A contract of employment as Properties Manager for the period 1st January 2014 to 31st December. 2014 with a monthly salary of USD 250,00.

A contract of employment as Properties Manager for the period 1st January 2015 to 31st December, 2015 at a salary of USD250,00.

These contracts were not disputed by 2nd respondent.  They go to confirm that he was aware of the changes in salary at each turn.

It is a trite position of the law (Section 94) of the Labour Act that where a claim is not brought to the attention of the Labour Officer within 2 (two) years, the Labour Officer cannot exercise any jurisdiction over it.

The cases of

CITY OF GWERU  v  JOSEPH MUNARI   SC 15/05

and

WATYOKA  v  ZUPCO   SC 87/05

relied on by 1st respondent supports this position.

It was 1st respondent’s submission that 2nd respondent referred his claim to applicant after the lapse of 2 years from the dates the dispute arose.  The claim according to 1st respondent was raised for the 1st time on the 17th September, 2018 and not earlier.  It was therefore prescribed hence ousting the Labour Officer’s jurisdiction who should not have entertained it.

2nd respondent’s submission was that the claim had not prescribed as it was a continuous matter having been raised before Labour Officer Mrs Sigauke in Case No. 714/2018 held in Harare on the 30th May, 2018.  Reliance was made on Annexures “G” pages 104, 105 and “H” page 106 of the record.

It was also 2nd respondent’s submission that the dispute was referred to 1st respondent in May.2018 when he was retrenched and this was less than 2 years so prescription did not apply.

The applicant’s ruling on this issue of prescription was that the complaint had not prescribed.  He found that the issue of underpayment was indeed raised in April 2018 with the 1st respondent.  It reached the Labour Office on 21 May, 2018.

Was the applicant correct in finding that the dispute had not prescribed when it was referred to him.

As the contracts referred to earlier show, 2nd respondent’s salary was changed starting in 2011.  It was reviewed downwards and 2nd respondent was aware of this as he signed the contracts.  He was okay with these changes but only took issue with this when he noticed that his retrenchment package was based on the $430 rate, i.e. in April, 2016 when he received the retrenchment letter and calculations.

In terms of Section 94 (1) of the Act, 2nd respondent had 2 years from April 2016 to refer his dispute to the Labour Office.  I will refer to Annexures “G” & “H” (pages 104, 105 and 106 as relied on by both respondents in support of their positions.

Annexure “G” (page 102) is a complaint form in case No 714/2018 before Mrs Sigauke.  The claim on the form is indicated as:-

“alleged non-payment of retrenchment package and terminal benefits.”

The portion (a) on non-payment of wages for the period ………… was left blank.

This complaint form was issued on the 21st May, 2018, i.e. 1 (one) month after the 1st April, 2018.  Similarly the notification to party to attend proceedings i.e.LR6 also indicates “alleged non-payment of retrenchment package” as the subject matter (dispute).  This was issued on the 30th May, 2018 for conciliation on14th June,2018.

On the 28th May, 2018 a certificate of settlement was issued on the alleged non-payment of part retrenchment package and terminal benefits.

It is therefore clear from the above that the dispute that was referred to the Labour Officer Sigauke was not for underpayment of salary.  Without any proof to support the assertion that the issue was previously raised but omitted, the Labour Officer was wrong in holding that the issue was previously raised.

Filed in the record is another complaint form Annexure “F” (page 103) filed on the 17th September, 2018.  Paragraph 4 thereon states the dispute/complaint as

“Alleged underpayment of salaries”

This is the dispute that was referred to applicant the ruling of which is subject of these proceedings.  Its clear that this is a different claim from the one referred to and dealt with by Labour Officer Sigauke.  2nd respondent became aware of this alleged underpayment in April, 2016 but filed this complaint in September 2018.  This was way outside the 2 (two) year period.  It is therefore not correct to say the claim had not prescribed.  The applicant erred and misdirected himself when he held that the claim was not prescribed thereby assuming jurisdiction to entertain it.

I find that the point in limine by 1st respondent has merit and I uphold it.  It therefore follows that the application for the confirmation of the applicant’s draft ruling cannot be granted as applicant lacked the jurisdiction to entertain it.  It is at this point that the application is dismissed without delving into the merits.

Accordingly the following order is hereby made:-

AND WHEREAS 2nd respondent’s claim had prescribed and applicant lacked jurisdiction to entertain it;

IT IS ORDERED THAT

The application for confirmation of the draft ruling be and is hereby dismissed.