Patras Mazibuko v Telecel Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/83/14
HELD AT HARARE 5TH FEBRUARY 2014
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/83/14

HELD AT HARARE 5TH FEBRUARY 2014		CASE NO LC/ORD/H/80/13

& 14TH FEBRUARY 2014

In the matter between:-

PATRAS MAZIBUKO					Applicant

And

TELECEL ZIMBABWE (PVT) LTD				Respondent

Before The Honourable L.M. Murasi, Judge

For Applicant			Mr T.W. Nyamakura (Legal Practitioner)

For 1st Respondent		Mr S Hwacha (Legal Practitioner)

MURASI, J:

Applicant has approached this Court in terms of section 93 (7) of the Labour Act [Chapter 28:01].  The facts of this matter are somewhat enmeshed.  The Court will seek to summarise them hereunder.

Applicant was employed by 1st Respondent as a Human Resources Director.   He was suspended on 27 January 2011 for acts of misconduct or omissions at the workplace.  1stRespondent allegedly relied on the provisions of Statutory Instrument 15 of 2006 in so-doing.  Applicant was dissatisfied and made an application to this Court.  President Musariri (as he then was) issued an order by consent setting aside the suspension and further nullifying any disciplinary proceedings that had taken place.  1st Respondent, on 25 February 2011, re-suspended the Applicant still using the same provisions “as amended”.  Applicant approached the High Court and, in a ruling dated 15 May 2012, Patel J (as he then was) ruled that the purported de-registration of 1st Respondent’s Code of Conduct was null and void and of no effect.  That Court further stated that S.I. 15/2006 was of no application to Applicant’s disciplinary proceedings by 1st Respondent.

One would have thought this to be the beginning of proper proceedings.  This was not to be.  Applicant again approached this Court and the matter was brought before President Matanda – Moyo (as she then was).  The matter was dismissed for non-compliance with the Rules.  Applicant has since approached theHigh Court to review the decision of Justice Matanda – Moyo.  I will revert to this issue later in the judgment.  This dismissal of the application did not finalise the matter as 1st Respondent referred the matter to the Labour Officer for determination.  The Labour Officer issued a Certificate of No Settlement on 14 August 2013.

Applicant has approached this Court for relief.  Applicant submitted that this was an application in terms of section 93 (7) of the Act which grants a party direct access to the Labour Court.  Applicant further submitted that the Court should determine whether the application is one made in terms of the Act, and if it is, the Court has jurisdiction to hear the matter.  The Applicant further stated that the resolution of the application made in terms of section 93 (7) was in section 89 (2) of the Act.  The legality of Applicant’s suspension was another issue raised in the application having regard to the order issued by Justice Patel which has not been appealed against, 1st Respondent having withdrawn the application.

1st Respondent is of the view that the matter is improperly before the Court as this is neither an appeal nor an application for review.  1st Respondent submitted that the Labour Court is not a court of first instance and should on that basis dismiss the application.  It was submitted that the provisions of section 93 (7) have not been put to the correct purpose.  1st Respondent stated that Applicant is avoiding appearing before an Arbitrator who will be able to deal with the matter on the merits rather than on technicalities as Applicant is bent on doing in this case.  1st Respondent’s Counsel also referred the Court to pending litigation filed by Applicant in the High Court.  It was further submitted that the matter was lis pendens and that there was a risk of two competing judgments being issued by the two Courts.  1st Respondent also stated that Applicant could not now be heard to say S.I. 15/2006 did not apply to him when he had used it in disciplinary cases at the workplace.

The first issue the Court will consider is whether it has jurisdiction to hear the matter.  ZIYAMBI JA had this to say in NRZ v ZARU 2005 (1) ZLR 341 (S) at p 346 A:

Thus before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application “in terms of this Act or any other enactment””.  This necessarily means that the Act or other enactment must specifically provide for applications to the Labour Court of the type that the Applicant seeks to bring.”

Section 93 (7) provides:

“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 conclusion 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 eighty nine, in the case of a dispute of right.”

The section refers to any dispute or unfair labour practice:”

Without delving into semantics, the Court is of the view that in the present circumstances there is a dispute or unfair labour practice between Applicant and 1st Respondent.  The section further requires that a labour officer must have issued a Certificate of No Settlement and not referred the matter to arbitration.  The second scenario provided in the section is where a Labour Officer has refused to issue the Certificate of No Settlement.  In either of the two instances a party is permitted to apply to the Labour Court for relief.  In casu, 1st Respondent referred the matter to the Labour Officer and the latter issued a Certificate of No Settlement on 14 August 2013.     The matter was not referred to arbitration and remains unresolved.  The Court finds that the application is an application in terms of the Act and is properly before the Court.  The Court finds that the application is an application in terms of the Act and is properly before the Court.

1st Respondent submitted that Applicant has approached the High Court for a review of the decision of Justice Matanda – Moyo.  As observed by ZIYAMBI JA, the Labour Court is a creature of statute and any proceedings should be within the four corners of the Act.  What is the effect of the review of Justice Matanda – Moyo’s decision on the current application?  The Act specifically provides for “appeals” to be directed to the Supreme Court.  Review of Labour Court decisions is not provided for in terms of the Act.  Section 92 F provides for “Appeals against decisions of the Labour Court.”  What is not clear is whether Applicant’s counsel was avoiding the “appeal” route by filing a review application with the High Court.  My view is that with the amendment of the Labour Act, the legislature was decisive in giving the mandate to the Labour Court in all labour matters and the appellate relief lying with the Supreme Court.  A reading of section 89 of the Act shows a deliberate exclusion of the other courts including the High Court.  I would therefore hold that the High Court does not have the jurisdiction to deal with labour matters, as this is the exclusive jurisdiction of the Labour Court.  I am of the further view that the inherent jurisdiction of the High Court founded at common law would not extend to reviewing decisions of the Labour Court where the legislature has specifically provided that appeals from the Labour Court lie with the Supreme Court.  In the result, I find that the application for review with the High Court does not affect any decision that this Court may arrive at.  (See Martin Sibanda and Anor v Benson Chinemhute & Anor HH 131/04).

The Court inquired from Applicant’s Counsel as to why the application to the High Court had not been withdrawn when the current application was filed.  Counsel did not have any explanation save to state that it was not him who filed it but the previous lawyer who handled matter.  This observation by the Court was in light of the provisions of section 124 of the Act which discourages multiple proceedings.  However, the Court has already considered the issue and made a decision.

Applicant seeks an order emanating from the provisions of the Act.  The first issue to be determined is whether a Certificate of No Settlement is in existence.  The record shows that such certificate was issued on

24 August 2013.  The second issue is whether this matter was not referred to arbitration.  Again the record shows that the matter was not referred to arbitration.  The conciliator in the Certificate of No Settlement states that the matter concerned “alleged unfair labour practice.”  The reasons for not referring the matter to arbitration have not been given.  The Court is the view that the elements required in terms of the provisions of the Act for the Court to consider the matter are present.  The Court has considered the relief sought by the Applicant.  One of the them is couched as:

“... hence the Certificate of No Settlement issued by Conciliator Madziye is irregular and ought to be quashed.”

As observed, by 1st Respondent, the presence of a Certificate of No Settlement is a prerequisite before such an application can be made unless the application is made in terms of paragraph (b) of section 93 (7).  That prayer, in my view, must be dismissed.  Applicant avers that the application is in respect of a dispute of right.  The matter has not been heard and no evidence has been adduced because 1st Respondent and Applicant do not agree on what Code of Conduct is applicable in the circumstances.  1st Respondent’s Counsel, in his submissions, made the concession that they would be agreeable to a referral to arbitrator where all issues may be ventilated.  This was a proper concession in my view.  This Court is not in a position to order payment of any sums of money as it does not have any evidence on which to base such order.  A referral to arbitration would allow both parties to ventilate the issues and the matter to be disposed on the merits as opposed to technicalities.

Having considered the submissions made by the parties and having regard to the interests of justice, the application succeeds and the Court makes the following order:

Application for relief in terms of section 93 (7) succeeds.

The Senior Labour Officer is ordered to refer the matter to arbitration for hearing and the matter to be heard within 30 days of this order.

The arbitrator’s Terms of Reference shall be:

To determine the lawfulness or otherwise of Applicant’s suspension

To determine whether there was an unlawful labour practice

To determine the appropriate remedy.

There is no order as to costs.

Mtetwa & Nyambirai, Applicant’s Legal Practitioners

Dube, Manikai & Hwacha, 1st Respondent’s Legal Practitioners