Mr Bristle (Pvt) Ltd t/a Norton Tobacco v Tobacco Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/54/2022
HARARE, 02 FEBRUARY 2022
CASE NO. LC/H/413/21
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IN THE LABOUR COURT OF ZIMBABWE    JUDGEMENT NO. LC/H/54/2022 HARARE, 02 FEBRUARY 2022    	                   CASE NO. LC/H/413/21

AND 25 FEBRUARY, 2022

In the matter between: -

MR BRISTLE (PVT) LTD t/a NORTON TOBACCO 		      APPICANT

And

TOBACCO WORKERS UNION 					   RESPONDENT

Before the Honourable B.T. Chivizhe: Judge

For Applicant:		Mr A. Dracos – (Legal Practitioner)

For Respondent:	Mr E. Makuyana – General Secretary, Tobacco Workers Union.

CHIVIZHE J:

This is an appeal from a determination of the Designated Agent G. Mutsvairo (National Employment Council for the Tobacco Industry) which determination was handed down on 19 August, 2021.  The appeal is opposed.

The material background facts are as follows.  The five employees involved in this matter i.e. Swapi Swapi, Charles Masiye, Bernard Paya, Sign Chikwenembe and Blessing Box were employed by the Appellant.  It is common cause the employees were engaged on the basis of seasonal contracts.  They referred a complaint to the Designated Agent of alleged victimisation by the Applicant on the basis that Applicant had failed to renew their contracts of employment during the 2021 season.  The Designated Agent after perusing the documents in the record of proceedings and hearing submissions from both parties handed down the determination as referred to supra.

He made a finding that the five employees were indeed victimised by the Applicant for their alleged involvement in the collective job action of 2020.  The victimisation was through a decision taken by Applicant not to renew their contracts in 2021.  The Designated Agent further found that as the employees had been employed for at least two consecutive seasons, the jobs that they had been doing still existed within the company, the Respondent however had resorted to employ new workers employees without informing the employees.  It was the Designated Agent ultimate finding that the circumstances amounted to an unfair dismissal as stipulated under Section 12 B (3) (b) of Labour Act [Chapter 28:01].  As a consequence, the Designated Agent directed in relief reinstatement without loss of salary and benefits of all five employees to their original position for the duration of the 2021 season.  In the event that reinstatement was no longer tenable they were to be paid damages in lieu of reinstatement.

GROUNDS OF APPEAL

The Appellant was aggrieved by the determination and noted the present appeal.  The appeal is premised on six grounds as outlined below:

The Designated Agent erred in granting an order against Norton Tobacco Graders (Private) Limited when the Respondent’s members were employed by Mr Bristle (Private) Limited trading as Norton Tobacco Graders.

The Designated Agent erred in law in proceeding to hear and determine a dispute purportedly brought by Respondent in circumstances where Respondent cannot, in law, file on behalf of the employees in question.

The Designated Agent grossly erred in law in issuing a determination, in respect of employees who were not part of the proceedings before him/ her.

The Designated Agent grossly erred in fact and law in making a finding that working for one or two seasons by the concerned employees created a legitimate expectation that they would be contracted again and further erred in finding that legitimate expectation arose at all.

The Designated Agent erred in law in making a finding that Appellant was obliged to employ the concerned employees in violation of the principle of freedom of contract.

The Designated Agent erred in ordering the reinstatement of Bernard Paya who was dismissed on 20 October 2020 for misconduct.

The Appellant prayer is that should the appeal succeed this court should grant an order setting aside the Designated Agent’s order and substituting with the following;

“Respondent not having the right to claim the relief sought, the claim is accordingly dismissed or alternatively;

“The claim for unfair dismissal is without merit and is accordingly dismissed.”

The Respondent filed a Notice of Response.  The Respondent through the Opposing Affidavit of Enock Makuyana, the General Secretary of the Respondent, who is also representing the Respondent in these proceedings submits that the grounds of appeal as filed by Appellant are without merit.  In respect of ground no 1 it is Respondent contention that the issue was never placed before the Designated Agent.  It is therefore not properly before this court sitting as it is as an appeal court.  On ground no 2 it is Respondent position that it has the right to sue on behalf of its members, the affected employees in this case are members of the Respondent and they did instruct the union to litigate on their behalf.  The Respondent prayer is that that ground ought also to be dismissed.  The third ground is also said to carry no merit.  The submission made is that the record of proceedings before the Designated Agent did carry the five (5 names) of the affected employees.  The Appellant did not raise the issue before the Designated Agent and consequently this ground should fail.  On ground of appeal no. 4 Respondent contends that the Designated Agent was correct based on the law as laid in in Section 12B (3) of the Labour Act [Chapter 28:01] and the evidence presented before him when he found that the affected employees were unfairly dismissed.  On ground of appeal no 5 Respondent contends that this ground also stands to be dismissed as the principle of freedom/ sanctity of contract cannot be raised to justify violation of clear statutory provisions in the Labour Act. [Chapter 28:01].  Respondent contends that in ground no 6 Appellant having conceded that the remaining four out of five employees were properly reinstated by the Designated Agent no issues arise.  On this basis the Respondent prayer is for the appeal to be dismissed with costs.

PARTIES SUBMISSION

In oral submission Mr Dracos emphasised that the appeal can be resolved on the basis of three main issues before the court.  The issues where identified as;

(i)  locus standi of the Respondent to substitute itself in the proceedings.

(ii) wrong citation of the Appellant.

(iii) the Designated Agent error in finding that a proper case had been made for the relief as sought before him.

In relation to the issue of locus standi, Mr Dracos submitted that it was unlawful for the Respondent to substitute itself as a party in place of the affected employees.  He relied for this proposition on the authority in Gweru Workers Union vs City of Gweru SC 25/15.

In regards the second point which was taken by the Appellant through the present proceeding Mr Dracos submitted that as a point of law the Appellant was entitled to raise that point  even at the late stage of an appeal.  The point taken was that the Respondent had improperly cited Appellant in proceedings before the Designated Agent. The proper entity that ought to have been cited is Mr Bristle (Private) Limited t/a Norton Tobacco Graders.  The appellation was said to appear on the ‘Certificate of Incorporation’ which forms part of the record.  Mr Dracos further submitted that the determination by the Designated Agent by making reference to Norton Tobacco Graders (Private) Limited is therefore invalid.  The proceedings before the Designated and the determination therefore stood to be quashed.

Mr Dracos further submitted that in view of the miscitation of the Appellant the Appellant could not be bound by the decision of the Designated Agent.  Mr Dracos relied for this proposition on Indium Investments (Private) Limited and Others vs Kingshaven (Private) Limited & Others SC 4-15 where the Supreme court found that a judgment made in the absence of a party and in the proceedings where the party has not been cited that judgment is not valid and binding.  Reference was also made to Hundah vs Murawo 1993 (2) ZLR 401.  Mr Dracos’s prayer was that to the extent that the determination by the Designated Agent related to an entity which was not the Appellant that determination was invalid and not binding.  It therefore stood to be vacated on appeal.

On the last issue Mr Dracos submitted that the Respondent had failed to meet the requirements as laid down in Section 12B (3) (b) of the Labour Act [ Chapter 28:01].  The Respondents had failed to establish before the Designated Agent that a legitimate expectation had been created for re-engagement of the affected employees.  The Designated Agent on his part had also erred in arriving at the conclusion based on the facts that a legitimate expectation had been created. This was in view of the fact that the contracts for the employees were seasonal contracts and Clause 3 thereof clearly provided for termination on completion of job order.  The fact that employees had been engaged twice could not on its own be an objective basis for creating a legitimate expectation.  Mr Dracos placed reliance on a case authority in Southern Africa Rugby players Association & Others vs SA Rugby & Others (2008) 29 ILJ  2218 [LAC] where the court had expressed that the employees in that case would have needed to place more credible facts to make their expectation reasonable.  It was Mr Dracos contention that the Respondents in this case had also failed to place any further evidence to justify the claim of a legitimate expectation.  He also referred to the Supreme Court decision in Medicines Sans Frontiers (MSF) Belgium vs Vengayi Nhopi & Others SC 11/19 which was said to have been decided upon similar reasoning.  Mr Dracos ‘ s prayer was that the appeal ought to succeed, the determination by the Designated Agent being premised on an error of law had to be vacated.

Mr Makuyana, for the Respondent, in counter, submitted that the appeal was without merit.  On the issue of citation he objected strongly to the taking of the point of law at the stage of an appeal.  It was his submission that the Appellant was seeking to play mind games.  The Appellant had accepted papers in the proceedings before the Designated Agent which papers cited Appellant as Norton Tobacco Graders. There was no objection by Appellant to its citation as such.  The Appellant had also gone through those proceedings under that appellation.  The issue of wrong citation was never raised.  The Appellant was therefore precluded from raising the point as at this late stage of on appeal.

On the issue of locus standi, Mr Makuyana submitted that the Trade Union indeed had the right to represent the affected employees.  It also had right to act in substitution of the employees. The Trade Union had been instructed by the employees who were its members.  The record of proceedings before the Designated Agent clearly showed who those affected employees where.

In regards the third point Mr Makuyana submitted that the determination by the Designated Agent was properly arrived at. He had been guided by Section 12B (3) (b) of the Labour Act [ Chapter 28:01].  The employees were engaged in continous employment.  During the 2021 season the Appellant decided to engage new employees to the detriment of the affected employees.  There is however a general practice in the industry that where an employee is engaged for more than two seasons then a legitimate expectation is created of further engagement.  It was Mr Makuyana’s submission in this case no explanation had been tendered by Appellant for its decision to engage new people instead of the affected employees.  Mr Makuyana also placed reliance on the provisions in clause 29 of S.I. 25/2018 i.e.  The Tobacco Industry Collective Bargaining Agreement.  That provision was said to relate to the creation of a legitimate expectation in particular circumstances.  It was Mr Makuyana’s view that that provisions had to be read in conjunction with Section 12B (3) (b) of the Labour Act [Chapter 28:01].  On this basis his prayer was for the appeal to be dismissed for lack of merit.

Mr Dracos, in reply reiterated the Appellant position that there was no basis for the Respondent to have substituted itself in place of the affected employees.   Whilst it is indeed the position at law that trade unions can represent employees who are their members in litigation they however cannot substitute themselves for the affected employees in matters related to their personal rights.  With respect to the issue of citation it was his view that the law is clear that a point of law can be raised at any time.  On the last issue the Applicant was persisting with the argument that no legitimate expectation had been created in the circumstances as to amount to an unfair dismissal. Mr Dracors also dismissed the contention made by Respondent representative that  the Section 29 (1) of S.I. 25 of 2018 was applicable to the circumstances of this case.  On this basis he prayed for the appeal to be upheld and the determination by the Designated Agent to be set aside.

ANALYSIS

WRONG CITATION

The Respondent has taken the point that the point of law has not been properly raised in view of the fact that the point was not raised in proceedings a quo.  The appellant submission in counter is as a point of law it was entitled to take the point even at the late stage of an appeal.  The point is also said to be material and going to be root of the matter.

It is indeed the position at law that a point of law can be raised at any stage of the proceedings even  at the appeal stage provided its consideration of the point does not involve an unfairness to the other party See Muchakata vs Neburburn Mine 1996 (1) 153 (S) The record of proceedings indicates that this point was raised by the Appellant through the its notice of appeal.  The Respondent therefore had sufficient notice of the point.  The Respondent has not alleged or shown that they were prejudiced by the taking of the point before this court.  No prejudice having been established the ground of objection to be  is hereby dismissed.

It is also the position that whereas Rule 8C of the High Court Rules allows any person carrying on business in a name or style other than his own name to sue or be sued in that name or style as if it were the name of an association, the Labour Court Rules carry no similar provision.  The Labour Court is a statutory creation it is not permitted to depart from the dictates of its enabling statute, being the [Labour Act 28:01] and the rules.  For this reason, the court finds itself in agreement with the Appellant that the Respondent having cited in their papers an entity that is not the actual employer the proceedings before the Designated Agent are a nullity.

LOCUS STANDI

In the event that I am wrong it is also apparent to me that the second issue raised by the Appellant is with merit.  It was clear in the proceedings that the Respondent Representative misconstrued the concept of ‘locus standi’ as raised by the Applicant.  From his argument he believed that what was being challenged was the right of trade union to represent its members in court.   Contrary to that positon however what was being challenged was the right of the trade union to substitute itself in place of the affected employees.

The concept of ‘locus standi’ was explained in Zimbabwe Allied Bank Limited vs Dengh & Another SC/16 as follows;

“The principle of locus standi is concerned with the relationship between cause of action and the relief sought.  Once a party establishes that he or she is entitled to the relief sought he or she has locus standi.  The plantiff or Applicant only has to show that he or she has directed and substantial interest in the light which is the subject – matter of the cause action”.

Section 92 of the Labour Act [Chapter 28:01] gives the Trade Union right of an official / employee of the trade union to represent in litigation employee is who are its members.  A trade union representing a party has no personal interest in the cause of action nor the relief sought.  He is merely an agent of the employee who has the requisite locus standi and for whom he or she acts.  The trade union clearly has no locus standi. The issue of authority to represent is not the issue before this court.  The issue before the court is the choice taken by the trade – union in the form of Respondent to substitute itself for the affected employee.  The Respondent was clearly operating under a misapprehension of the law when it took the choice to represent the employees in a matter affecting their personal rights and interests.  The Respondent has aptly referred to the authority in Gweru Workers Committee vs City of Gweru SC 25/201J where Malaba DCJ (as he then was) had the following to say;

“a worker’s committee has the power to represent the employees at a particular workplace in any matter affecting their and interests.  Only a trade union can represent its members before a determining authority or in the Labour Court.  It cannot arrogate to itself, as was done by the “Gweru Water Workers Committee”, the cause of action of action of the employees and sue on their behalf.  It is clear that the rights provided for under s 16 of the Act accrued to the employees concerned in their individual capacities. “

It is also clear to the court that the non- citation of the individual employees would result in the determination by the Designated Agent being unenforceable.  In other words the affected employees cannot claim rights on the basis of the determination.  They also cannot be bound by the determination by the Designated Agent or by the decision of this court for that matter.  The effect of non – citation of the affected of employees was also discussed by Mavangira J in Andrew Magarasadza & 34 Others vs Freda Rebecca Gold Mine SC 46/16.  I can do no better than quote from page 9 of the cyclostyled judgement where she said;

“The effect of the non-citation or the lack of reference to the applicants is that the award by the arbitrator ordered that there be negotiations between the employer and the Trade Union in circumstances where the contracts to be entered into would be entered into would be between the employer and the individual employees.  This is an untenable result.  I daresay it is an incompetent order.  It is trite that for a party who has a real interest in matter in dispute before a court to be bound by a judgement of the court, such party should be cited.  It is trite that a judgement may not be made affecting a person or entity that was not a party to the proceedings. “

The determination by the Designated Agent clearly ought to be vacated.  The matter ought to simply end here.

In the event that I am wrong in taking this approach however I will also address the last point which is based on the merits.  There is no doubt that the Designated Agent did commit an error of law in dealing with the question as to whether a legitimate expectation had been created.  His finding was as follows;

“All the members of the Workers Committee which were not engaged in the 2021 season had worked for at least two seasons.  This constituted a regular practice upon which reasonable expectation of renewal of contract of employment could be formed by the employees concerned.”

The position of law has been laid out in several Supreme Court decisions.   In Magodora & Others vs Care International SC 24/14 the court found that for an employee to be deemed unfairly dismissed in terms of Section 12 b (3) of the Labour Act he must establish a legitimate expectation of being re-engaged and that another person was engaged in his stead.  The court further found that these two requirements had to be considered conjuctively   See also Tel – One (Private) limited vs Chigaazira SC70/17.

Applied to the circumstances of this case it is clear that the first requirement was not established before the Designated Agent.  Firstly, the contracts were seasonal in nature.  They were to terminate on completion of a job order.  Secondly, the fact that the employees were engaged twice was not sufficient to create a legitimate expectation.  The issue of a regular practice was not established before the Designated Agent.   From the record, there was no evidence led to prove a regular practice and  that it created a legitimate expectation.  The issue of Section 29 (3) of S.I. 25 of 2018 which was raised from the bar by Respondent Representative stands to be dismissed as that section is clearly inapplicable to the circumstances of this case.  That section relates only to entitlement to gratuity.   The Designated Agent having clearly committed an error in law his determination must be set aside.

Accordingly, the appeal has merit and ought to be upheld.  It is in the result ordered as follows;

The appeal is allowed.

The determination by the Designated Agent dated 19th August, 2021 be and is hereby substituted with the following;

“Respondent not having the right to claim the relief sought the claim is accordingly dismissed;

or alternatively.

‘The claim for unfair dismissed being without merit it is accordingly dismissed.’