Blue Ribbon Foods Limited v Godfrey Tsatsa & 10 Others

### Preamble
Judgment No. SC 57/24
Civil Appeal No. SC 396/22
1
REPORTABLE (57)
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REPORTABLE     (57)

BLUE     RIBBON     FOODS     LIMITED

v

GODFREY     TSATSA     &     10 OTHERS

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, CHATUKUTA JA & MWAYERA JA

HARARE: 16 OCTOBER 2023 & 02 JULY 2024

Adv T. Zhuwarara, for the appellant

M. Gwisayi, for the respondents

GWAUNZA DCJ

[1]	This is an appeal against the whole judgment of the Labour Court, Harare, dated 	8 October 2021, which ruled that a Designated Agent had the jurisdiction to determine a 	dispute between the parties, which arose when the appellant retrenched the respondents in 	terms of s12 of the Labour Act [Chapter 28:01] (‘the Act’). The dispute had already 	been referred to, but not determined by, the Retrenchment Board.

[2]	FACTUAL BACKGROUND

The respondents were employed by the appellant in various capacities. On 30 September 2020, the appellant sent to the respondents, notices of retrenchment which would  effectively terminate their contracts of employment in terms of s 12C and 12D of the Labour Act. The respondents challenged the terminations and referred the matter to the relevant National Employment Council on 2 October 2020. They argued that no Works Council meeting was held to deliberate on the retrenchment since there had been no Works Council at Blue Ribbon Foods for some years.

[3]	The matter thereafter came before a designated agent, and the appellant argued that the respondents had already received their retrenchment packages, and therefore waived the right to challenge their retrenchment. Further, that the respondents 	had spent the money fully aware that it was related to their retrenchment and also after they were furnished with banking details to facilitate return of the funds to the appellant.

[4]	On the other hand, the respondents argued that they did not waive their right to challenge                                   the 	retrenchment as evidenced by the fact that after receiving the notices of retrenchment, they 	referred the matter to the National Employment Council for redress. Further, that while the 	matter was still pending before the designated agent, the appellant had unilaterally deposited 	the retrenchment money into their bank accounts.

[5]	It was additionally submitted that, in a letter dated 12 October 2020, the respondents offered  	to return     to the appellant, the money that it had unilaterally deposited into their accounts. The 	respondents averred that they gave the appellant 48 hours to take the money back upon 	furnishing them with its bank account details, failing which they would          spend it on a 	‘without prejudice’ basis. This in the respondent’s view, would not amount to a waiver of 	their right to challenge the retrenchment.

[6]	The designated agent did not consider the merits of the dispute. He instead mero motu, 	declined jurisdiction to hear the matter on the basis that the retrenchment proceedings had 	been referred to the Retrenchment Board. In his view, that was the tribunal properly 	empowered to deal with such matters.

[7]	Aggrieved, the respondents filed an appeal in the court a quo challenging the decision of the 	designated agent declining jurisdiction to entertain the matter. They argued that the matter 	involved an unfair dismissal dispute over which the designated agent, and not the 	Retrenchment Board, had the requisite jurisdiction in terms of s 63(3a) of the Act.

[8]	The appellant, on the other hand argued that the designated agent was correct in his decision 	declining jurisdiction to hear the matter, given that he could not determine a matter in 	respect of which a notice of intention to retrench had been served on the Retrenchment 	Board. Further, that in any case, the designated agent had no powers under s 63(3a) of the 	Act to review the appellant’s decision to retrench the respondents. Such review powers, the 	appellant further argued, could only be exercised by the Labour Court.

[9]	The court a quo found that the Retrenchment Board no longer had jurisdiction to deal with            	retrenchment disputes save for a very limited role in applications for exemption. It thus 	determined that the designated agent failed to appreciate this legal position and misdirected 	himself in a manner that warranted interference with his determination. On the issue of 	mootness, the court a quo agreed with counsel for the respondents that the matter was one 	that only a tribunal properly seized with the dispute, could determine. The court accordingly 	allowed the appeal, set aside the determination of the designated                                                                             agent and remitted the 	matter thereto for a hearing de novo on the merits.

[10]	 It is against this decision that the appellant has filed this appeal, on the following grounds;

The court a quo erred at law in finding that:

s 63 of the Labour Act [Chapter 28:01] conferred review powers upon the designated agent; and

the designated agent, contrary to evidence on record, had jurisdiction to entertain the matter in circumstances where the respondents had ‘consumed’ their retrenchment packages and the matter was moot.

Consequently, that the court erred in finding that the designated agent had jurisdiction   to hear the matter.

The appellant thus prays that the appeal succeeds with costs, and that the judgment of the court a quo be set aside in its entirety and substituted with an order confirming the decision of the designated agent.

[11]	ISSUE FOR DETERMINATION

The only issue that arises for determination is-

Whether the designated agent had the jurisdiction, under s 63 of the Labour Act [Chapter 28:01], to hear the matter concerning the decision of the appellant to retrench its employees.

The appellant argues that s 63(3a) of the Act does not empower the designated agent to ‘review’ the conduct of inferior bodies such as employers. The respondents on the other hand argue that the court a quo was correct in its finding that s 63(3a) of the Labour Act conferred the requisite powers upon the designated agent, to hear the matter based on the circumstances thereof.

[12]	 ANALYSIS OF THE LAW

Section 63(3a) of the Labour Act provides as follows:

“(3a) 	A designated agent of an employment council who meets such qualifications as may be prescribed shall, in his or her certification of appointment, be authorized  by the Registrar to redress or attempt to redress any dispute which is referred to the  designated agent or has come to his or her attention; where such dispute occurs in  the undertaking or industry and within the area for which the employment council is  registered, and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.” (my emphasis)

In the case of Gutu Rural District Council v Mugayo SC 86/23 on p 5 of its cyclostyled judgment, this Court re-affirmed the position that s 63 (3a) of the Labour Act is the provision that confers power on the designated agent to give redress or attempt to do so, in a dispute properly before him or her. The court noted that this role was more clearly explained as follows in Isoquant Investments (Pvt) Ltd T/A Zimoco v Darikwa CCZ 6/20 at p 29:

“Section 63(3a) of the Act allows a designated agent, upon authorisation by the Registrar of Labour, to either redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention. That is the case                          where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered…

What is key in understanding what a designated agent can or cannot do is the meaning of the phrase “redress any dispute”, used in s 63(3a) of the Act.  When used as a verb, the word “redress”, according to the Oxford English Dictionary means to remedy or set right an undesirable or unfair situation. A designated agent authorised by the Registrar of Labour redresses a dispute referred to him or her. He or she offers a remedy or sets right an unfair situation.” (Underlining  for emphasis).

[13]	It is evident that this particular excerpt specifically addresses the issue of a ‘redress’ of the dispute by a designated agent. However, the one below, from the same case, that is Isoquant (supra), stresses the distinction between, and the mutual exclusivity of, ‘redressing’ and ‘attempting to redress’ a dispute:

“A designated agent may only exercise one power over a dispute. He or she may redress the dispute, or attempt to redress it. He or she cannot do both. If he or she chooses to redress the dispute by hearing and determining the issues in dispute, he or she cannot at the same time attempt to redress the dispute. It is clear from the provisions of s 63(3a) as read with s 93(1), of the Act that a designated agent can only proceed in terms of s 93 of the Act if he or she had not redressed the dispute. He or she would be attempting to settle the dispute through conciliation. There can be no attempt to settle a dispute which has been redressed.  The provisions of s93 of the Act would apply when the power to be exercised by the designated agent is an attempt to redress the dispute through conciliation.” (my emphasis)

[14]	In the interests of clarity, s 93 (1) reads as follows:

“(1) 	A labour officer to whom a dispute or unfair labour practice has been referred, to whose attention it has come, shall attempt to settle it through conciliation or if agreed by the parties, by reference to arbitration.”

It is noted in this respect that despite reference to a ‘labour officer,’ the provision applies 	equally to a designated agent by virtue of s 63(3a) of the Act.

[15]	On the basis of the above dicta set out in the Isoquant case (supra) the court in the Gutu Rural District Council case (supra) further held that:

“This Court, in a line of authorities, has spoken on this that a Designated Agent cannot preside over a matter where a determination has been made. See Watyoka  v Zupco Northern Division SC 87/05, Mabeza v (1) Sandvick Mining (2) Construction (Pvt) Ltd and Another SC 91/19 and Living Waters Theological   Seminary v Rev Chikwanha SC 59/21.

[16] 	APPLICATION OF THE LAW TO THE FACTS

The appellant sent to the respondents, notices of retrenchment which would effectively have terminated their contracts of employment in terms of s 12C and 12D of the Act. In the admitted absence of a Works Council at Blue Ribbon Foods, the respondents turned to the relevant National Employment Council on 2 October 2020, to file a complaint over their threatened retrenchment. While the matter was also referred to the Retrenchment Board, it is not in dispute that the Board never sat to determine the dispute one way or another. The court a quo in its judgment in any case noted that the Retrenchment Board, while retaining the entitlement to receive retrenchment notices, no longer had the power to determine a retrenchment dispute, ‘save for a very limited role in applications for exemptions’ from paying retrenchment packages. For that proposition, the court a quo relied on one of its own judgments, as well as an article in the Zimbabwe Electronic Law Journal Vol.11 [2017].

[17]	The appellant, according to the court a quo, signaled its acknowledgment of the curtailment of the Retrenchment Board’s powers by abandoning the original basis for its objection to the designated agent’s hearing of the matter, and shifting to another. The court commented that, while the appellant had originally argued that the power to hear retrenchment disputes vested in the Retrenchment Board, (and not the designated agent), it had unprocedurally shifted to the argument that the designated agent had no review powers over its decision to retrench the respondents. This Court notes in this respect that the appellant’s argument ignored the fact that a proper reading of s 63(3a) of the Act does not speak to any review powers being exercised by a designated agent. The section, as already indicated, is concerned with the power of a designated agent to redress or attempt to redress a dispute before him or her. The powers are separate and distinct.

[18] 	Be that as it may, the court finds that neither the powers of the Retrenchment Board nor any supposed review powers of the designated agent over a decision of the appellant to retrench its workers, were determinative of the matter. Rather the dispute fell to be determined, first and foremost, on the basis of whether or not what was referred to the designated agent was a matter that had already been determined or redressed by an applicable authority.

[19]	The facts of the matter as outlined, leave no doubt that no applicable authority determined the matter one way or another before it was referred to the designated agent. The unilateral decision of the appellant to retrench the respondents, to this day remains untested by any other adjudicating authority. It therefore cannot, by any stretch of the imagination, be seen as reaching the threshold of a determination envisaged by the law and the authorities as cited above, whose effect would be to bar a designated agent from either redressing or attempting to redress the dispute in question.

[20]	The court is satisfied that the authorities cited above, which establish that a designated agent has no jurisdiction under s 93 of the Act to attempt to redress a dispute that has been determined or redressed on the merits, apply with equal force to an intended redress of a dispute under s 63(3a) of the Act. In other words, the dispute must not have previously been determined by an applicable authority or tribunal. This is because, as indicated by the authorities cited above, any particular dispute that is properly before a designated agent can either be redressed by him or her in terms of s 63(3a), or be one that he or she may attempt to redress in terms of s 93(1) of the Act. It therefore stands to reason that the premise - which is lack of a prior determination of the same dispute by another tribunal - for clothing a designated agent with jurisdiction under both ss 63(3a) and 93(1) remains the same.

[21]	It is in this light that the following dictum expressed by this Court in the Gutu Rural District Council case (supra) should be viewed:

“When there is a determination on the merits, of a dispute, a Designated Agent has no jurisdiction under s 93 of the Act to redress such a dispute.”

Thus, a designated agent has no jurisdiction to ‘redress’ a dispute in terms of s 63(3a) of the	Act, where there exists a prior determination of the same dispute on the merits.

[22]	The flipside to the dictum cited above is therefore, that there is no bar to the redressing of a dispute by a designated agent in terms of s 63(3a) of Act, where no prior determination on the merits thereof, has been made by an appropriate authority or tribunal. Applied to the circumstances of this case, it becomes evident that the court a quo properly determined that the designated agent possessed the requisite jurisdiction to redress or attempt to redress the dispute that was placed before him. This is because no other authority, and certainly not the Retrenchment Board, had determined the dispute on the merits.

[23] 	Against this background, the court a quo cannot be faulted for allowing the appeal before it 	and remitting the matter to the designated officer for a fresh hearing thereof. Nor can the 	court be faulted for finding that the issue of whether or not the dispute was moot could only 	be properly determined by the designated agent. The court reasoned correctly that the issue 	of whether the appeal was moot because the respondents had allegedly ‘waived’ their rights 	by receiving and spending the retrenchment money, was one that touched on the merits of 	the dispute and fell to be determined by the tribunal seized with the matter.

[24]	DISPOSITION

The designated agent improperly determined that he lacked the jurisdiction to entertain, in terms of s 63(3a) of the Act, the dispute that was brought before him. The decision of the court a quo to remit the matter to the designated agent for consideration, is unassailable. The appeal accordingly lacks merit and ought to be dismissed. Costs will follow the cause.

It is in the premises ordered as follows;

“The appeal be and is hereby dismissed with costs.”

CHATUKUTA JA		:                         	I agree

MWAYERA JA     		:                              	I agree

Scanlen and Holderness, legal practitioners for the appellant

Matika Gwisayi & Partners, legal practitioners for the respondents