Len Smit & Anor v Someden Investments (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/323/2016
HARARE, 16 MARCH 2016 &
CASE NO LC/H/APP/592/2015
13 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/323/2016

HARARE, 16 MARCH 2016 &				CASE NO LC/H/APP/592/2015

13 MAY 2016

In the matter between

LEN SMIT								1ST APPLICANT

And

TRYMORE NYAMUKONDA					2ND APPLICANT

Versus

SOMEDEN INVESTMENTS (PVT) LTD				1ST RESPONDENT

And

THE DIRECTORS AND SHAREHOLDERS			2ND RESPONDENT

(SOMEDEN INVESTMENTS (PVT) LTD)

Before the Honourable R F Manyangadze J

For the Applicants	T Vallance (Trade Unionist)

For the Respondents   E Donzvambeva (Legal Practitioner)

MANYANGADZE J:

This is an application for what the applicants describe, in their Notice of Application, as:

“5.	QUANTIFICATION OF APPLICANTS’ CLAIM

5.1	Payments of Terminal Benefits due and allowances and benefits to which they are duly entitled.

5.2	Payment of a termination settlement equating to thirty-six months’ salary as compensation for loss of future earnings.

5.3	Payment of punitive damages for emotional and psychological trauma and hardship suffered.

NOTE:	Applicants reserve the right to amend their claim.”

These claims arise from what the applicants allege was a unilateral variation of the terms and conditions of their employment. The applicants were employed by the respondent as Project Manager and Administrative Assistant. They allege they had their contracts of employment unilaterally and summarily terminated by the respondent in December 2013.

The dispute went for conciliation before a labour officer on 15 April 2015. The complaint, according to the Certificate of No Settlement dated 4 April 2015, was:

“Alleged unilateral variation of contract, unlawful termination of contract and non-payment of terminal benefits.”

Thereafter, the applicants lodged the present application. The application was filed directly with the Labour Court, without reference to arbitration.

The respondents raised a point in limine, to the effect that the application was prematurely placed before the Labour Court, and was therefore not properly before it. In its Notice of Response, the respondent averred that:

“1.	It is submitted that the application is improperly before the court. The applicants have invented their own procedure which is alien to the laws of the land. They have rushed to bring an application to the court without any justification for doing so. It is not correct that the parties agreed to have the matter referred directly to the Labour Court. Such purported agreement is conspicuous by its absence from the record. One wonders who the applicants agreed with to have the alleged dispute referred directly to this court. It is a premature application which amounts to an abuse of court process and ought to be dismissed with costs on a legal practitioner and client scale.”

The explanation advanced by the applicants for adopting this unusual procedure was mainly that, in their view, the arbitrator had no capacity to handle this “complex” matter. In other words, the applicants had no confidence in any arbitrator dealing with the matter, hence their direct referral to this court. Mr T Vallance, the Trade Union official who represented the applicants, put it this way:

“They’ve been numerous cases back and forth between the parties, which made the matter very complex. We resolved that an arbitrator would not be capable of resolving the issue bearing in mind the incompetency of arbitrators who are available to hear matters today.

It is interesting to observe that the latest amendments to the Labour Act actually side lined arbitrators except for matters of public interest.”

The manner in which a dispute referred for conciliation is dealt with after a certificate of no settlement is issued, is set out in section 93 of the Labour Act [Chapter 28:01] (“the Act”). Section 93 (5) provides:

“(5)	After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting any labour officer who is senior to him and to whom he is responsible in the area in which he attempted to settle the dispute or unfair labour practice—

Shall refer the dispute to compulsory arbitration if the dispute is a dispute of interest and the parties are engaged in an essential service; or

May, with the agreement of the parties, refer the dispute or unfair labour practice to compulsory arbitration; or

May refer the dispute or unfair labour practice to compulsory arbitration if the dispute or unfair labour practice is a dispute of right;

and the provisions of section ninety-eight shall apply to such reference to compulsory arbitration.”

Paragraph (c) is the one applicable, as it deals with a dispute of right, such as the one in casu.

It is further provided, in sub-section (7), as follows:

“(7)	If, in relation to any dispute or unfair labour practice—

After a labour officer has issued a certificate of no settlement in relation to the dispute or unfair labour practice, it is not possible for any reason to refer the dispute or unfair labour practice to compulsory arbitration as provided in subsection (5); or

A labour officer refuses, for any reason, to issue a certificate of no settlement in relation to any dispute or unfair labour practice after the expiry of the period allowed for conciliation under subsection (3) or any extension of that period under subsection (4);

Any party to the dispute may, in the time and manner prescribed, apply to the Labour Court—

For the dispute or unfair labour practice to be disposed of in accordance with paragraph (b) of subsection (2) of section eighty-nine, in the case of a dispute of interest; or

For an order in terms of paragraph (c) of subsection (2) of section eight-nine, in the case of a dispute of right.”

From a reading of these provisions, it is only when “it is not possible for any reason” to refer the matter to compulsory arbitration, that a party may apply to the Labour Court directly and such application would have to be in terms of sub-paragraph (i) or (ii) of sub-section (7).

Ordinarily, a labour officer; in terms of section 93 (5), refers a dispute of right to compulsory arbitration. Deviation from such a procedure would have to be in terms of sub-section (7). In other words, there has to be a justifiable basis for non-referral to compulsory arbitration.

In the instant case, as already indicated, the applicant’s reason for such non-referral is, according to their perception, the incompetence of arbitrators. This, in my view, is a wholly inadequate reason for circumvention of compulsory arbitration. The competence or otherwise of arbitrators is very much a subjective view. It would bring chaos in the dispute resolution system provided for in the Act, if parties were allowed to by-pass certain stages merely on the basis that they entertain an opinion that the officials involved are not competent enough. It encourages forum shopping and undermines the appeal system put in place in the Act.

The law has also made it clear that domestic remedies must be exhausted before litigants approach this court, or any other higher tribunal for that matter, for resolution of their disputes. This position was emphasised in Munyuki v City of Gweru 1998 (1) ZLR 182. GUBBAY CJ cited with approval the remarks of HARMS J in Reckitt & Coleman (SA) (Pty) Ltd v Chemical Workers Industrial Union & Ors (1991) 12 ILJ 806 (LAC), at p 813 A – D:

“It is a principle of fairly general application that a party should utilise his domestic remedy and procedure before approaching a court. There is no reason in principle why such a rule should not be applicable to proceedings before the industrial court. ..”.

In the present case, it cannot be said “it is not possible” to refer the matter to compulsory arbitration, as provided for in sub-section (7). There is no justification whatsoever for the direct application to this court. It was solely on the basis of the low opinion in which the applicants regard arbitrators, as seen in their representative’s remarks to this court. Choosing an adjudicating forum on this basis amounts to an abuse of the court system.

In the circumstances, the point in limine raised by the respondent, that this application is improperly before this court, has merit and must be upheld. It is accordingly ordered that:

The point in limine raised by the respondent be and is hereby upheld.

The application, being improperly before the court, be and is hereby struck off the roll.

The applicants shall bear the respondent’s costs.

Wintertons, respondents’ legal practitioner