Quest Motor Corporation v Tendai Mutasa & 4 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/574/16
HELD AT HARARE 31 MAY 2016
CASE
NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/574/16

HELD AT HARARE 31 MAY 2016				CASE NO LC/H/REV/30/16

& 23 SEPTEMBER 2016

In the matter between:

QUEST MOTOR CORPORATION				Applicant

And

TENDAI MUTASA & 4 OTHERS				Respondents

Before The Honourable Muzofa, J

For Applicant			S Tutani (Human Resources Manager)

For Respondents		Chirenje (Officer – AAWUZ)

MUZOFA J:

On 31 May 2016 I upheld an application For review in Case No. LC/H/REV/30/16.

The respondents have requested for written reasons for the said decision, these are they.

The background to this case is as follows:  The five respondents were employed by the applicant in August 2015 the applicant terminated the respondents’’ employment on three months’ notice.

The effective date of termination was to be 31 October 2015.

On 15 October 2015 applicant applied for exemption from paying compensation in terms of section 12 C (3) of the Labour Act [Chapter 28:01] to the exemption committee of the National Employment Council for the Motor Industry (the exemption committee)

On 23 November 2015 a hearing was conducted before the exemption committee.  Subsequently on 3 December 2015 the exemption committee issued its determination, declining to exempt applicant from paying compensation.

It seems that before the applicant applied for exemption the respondents referred a dispute of non-payment of compensation to a designated agent.  According to the applicant the matter was heard on 23 October 2015 and 9 February 2016.  Eventually the ruling forming the basis of this case was made on 16 March 2016.

The facts as set out by the applicant were not disputed by the respondents.

I will now address the grounds for review.

Jurisdiction

It was submitted for the applicant that the designated agent did not have jurisdiction to deal with a matter that was before the exemption committee and no determination had been made.

In addition it was argued that the ruling by the exemption committee was of no force and effect since it was made after 14 days.  At the lapse of 14 days the exemption committee had no jurisdiction to deal with the matter and by extension the designated agent had no jurisdiction to deal with the case.

For the respondent it was submitted that the designated agent had jurisdiction to deal with the matter since the application had not been granted by the exemption committee.

There are clearly two cases between the parties that impact on each other.  Technically when the respondents referred the complaint to the designated agent there was no pending case before the exemption committee.  However by the time the designated agent heard the parties’ submissions there was a case before the exemption committee, relating to the same subject matter and between the same parties.

The exemption committee’s role was to determine whether the applicant should be exempted from paying the compensation.  To the extent that the exemption committee was to make a determination likely to impact on the decision of the designated agent, the designated agent was supposed to hold the matter in abeyance.

That as it may be the designated agent proceeded to deal with the matter and fortunately the exemption committee’s determination was in favour of the respondents.

Applicant has argued that it had been granted the exemption by lapse of time therefore the designated agent had no jurisdiction to deal with the matter and relied on section 12 C (3) of the Act which provides

“(3) where an employer alleges financial incapacity … the employer shall apply in writing to be exempted from paying the full minimum retrenchment package or any part of it to –

The employment council established for the undertaking or industry; or

. . .

Which shall respond to the request within fourteen days of receiving the notice (failing which response the application is deemed to have been granted)”  (Underling for emphasis)

It is not in dispute that the exemption committee made its decision well after the 14 day period.  This issue was raised before the designated agent who determined that any grievance against the decision of the exemption committee should appeal against it.

Indeed that was a correct position of the law.

The proviso to section 12 C (3) of the Act is very clear, where a decision is not made within 14 days, it is deemed that the application is granted.  Technically by lapse of time, the applicant had been granted the exemption.

I am cognisant of the fact that there was no appeal against the decision of the exemption committee.  This is the dicey situation created by the designated agent, to deal with the matter before the logical conclusion of the matter before the exemption committee.

The circumstances of this case require that the decision of the exemption committee be ventilated in order to achieve justice between the parties.

Strictly  speaking the designated agent had jurisdiction to deal with the matter but the applicant had a complete defence that it had technically been granted the exemption by lapse of time.  The court cannot turn a blind eye to this fact.  The provision in the Act requires astuteness and diligence on the part of the exemption committees to avoid causing prejudice as that which befall the respondents herein.

In essence the decision by the exemption committee was of no force and effect since by default a decision had been granted by operation of the law.

Having made that finding it means respondents had no valid claim against the applicant, accordingly the designated agent’s decision fell into error.

The decision on the first ground for review the disposes of the matter.  It then becomes unnecessary to deal with the other grounds for review.

To that end the following order is made

The application for review is upheld.

The decision by the Designated Agent is hereby set aside and substituted by the following;

‘The claimants’ claim be and is hereby dismissed.’

No order as to costs.