Martin Manyika N.O. v UMAA Elite College & Grace Wuriga & 8 Others

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/256/2020
HARARE, 11 JUNE 2019
CASE NO. LC/H/LRA/1003/18
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THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/256/2020

HARARE, 11 JUNE 2019	                        CASE NO.  LC/H/LRA/1003/18

AND 20 NOVEMBER 2020

MARTIN MANYIKA N.O.					Appellant

UMAA ELITE COLLEGE 			    		1St Respondent

GRACE WURIGA & 8 OTHERS 				2nd – 10th Respondents

Before Honourable G. Musariri, & B. Chidziva, Judges

For Appellant		-	Mr M. Manyika, Applicant

For Respondent	-		Mr. S. Vambe, Administrator

For 2nd to 10th Respondents-	Ms R. Mutindindi, Attorney

MUSARIRI, J:

On 26 October 2018 Applicant, qua Designated Agent, made a ruling.  He ordered 1st Respondent (employer) to pay 2nd to 10th Respondents (employees) various amounts of money in respect of salary arrears & allowances.  Apparently the employer did not comply with the ruling.  Applicant then applied to this Court in terms of Section 93 (5a) of the Labour Act Chapter 28:01 for the confirmation of his ruling.  The employer opposed the application.  The employees supported the application.  At the onset of oral argument in this Court the employer raised 3 points in limine.

That the employees were barred in terms of Rules of this court;

That Applicant lacks jurisdiction in the matter; and

That the employer has been mis-cited.

I shall deal with these points ad seriatim.

That the employees are barred

The employer argued that the employees were barred because they failed to file Heads of Argument.  However the record shows that the employees filed their Heads on the 7th December 2018.  This fact was bought to the attention of the employer’s attorney.  He then argued that they were not served with the Heads.  This was said in their closing submissions.  They had the last word in the matter.   So their denial could not be dealt with by the employees.  In any event this point was not raised  in the employer’s Heads of Arguments.  We decided to disregard the point on that basis.

That Applicant lacks jurisdiction

The employer argued that the relevant Collective Bargaining Agreement (CBA) lists the employees covered by the CBA.  Teachers and Lecturers are not covered.  The employees were employed as teachers.  Thus the CBA does not apply to them.  Their recourse ought to be found in their contracts of employment.  That was the gist of the employer’s argument.  Applicant disagreed.  He insisted that the employer runs an educational institution.  Such institution not being a government school, falls within the scope of the CBA.  The employees took the same position as Applicant.  I agree that educational institutions, which are not government owned are covered by the CBA. Thus Applicant being a Designated Agent of the NEC which administers the CBA has jurisdiction over employment matters in such institutions.  However the CBA itself spells out the employees covered by the CBA.  Teachers or lecturers are not covered.  On that basis Applicant lacked jurisdiction in this matter because it involved teachers.  It is noted that a draft CBA date stamped 12th February 2019 extends the CBA’s coverage to teachers.  Firstly it is a draft and thus lacks validity.

Secondly and in any event it purports to apply with effect from the 1st December 2018 which is well after the ruling in this matter.

That the employer was mis – cited

Applicant cited the employer as UMAA Elite College (paragraph 3 of his founding affidavit).  The employer responded via the affidavit of its Principal/ Director.  It read

“10. Secondly the respondent raised a preliminary point to the effect that the 1st respondent was improperly cited as the 2nd 8th respondents were not direct employees of the 1st respondent”

Apparently according to a document on record there is UMAA International Group of Institutions.  A number of institutions fall under the group.  Amongst these is UMMA Elite College and UMMA Institute Zimbabwe.  There are 2 employment contracts one between KH Kanyati and UMMA Elite.  The other is between N. Masendeke and UMAA Institute Zimbabwe.  Thus the alleged mis-citation affects Masendeke but not Kanyati.  It follows therefore that the mis-citation has only been established in respect of Masendeke

Disposition

The preliminary points raise important issues.  However the critical issue is the one of jurisdiction.  The crisp question is whether Applicant had jurisdiction in this matter.  The answer is NO.  He did not have jurisdiction.  The employees were, by their own averments, employed as teachers at the relevant time.  Applicant’s NEC lacked jurisdiction over disputes involving teachers. Therefore he was wrong to assume jurisdiction in this matter.  Applicant’s application for confirmation is thus premised on an invalid ruling. That is the end of the matter.

Wherefore it is ordered that:

The application for confirmation of ruling be and is hereby dismissed;  and

Each party shall bear its own costs

G MUSARIRI

J-U-D-G-E

I agree,		          	B CHIDZIVA

J-U-D-G-E