The
respondents were retrenched as a result of an application for
voluntary retrenchment. The retrenchment was approved by the
Retrenchment Board and payment was made in the respondents' accounts
on 16 January 2009. On or about 29 July 2009, the respondents,
discontented by the fact that their packages were paid in Zimbabwean
dollars, took the matter for conciliation before a Labour Officer. A
certificate of no settlement was issued by the Labour Officer on 21
August 2009. Thereafter, on 9 September 2009, the respondents
successfully brought an application to the Labour Court seeking an
order for confirmation of the retrenchment package, as agreed on 12
December 2008, subject to the basic monthly salary being calculated
on the basis of the US dollar at the rate of US55= per month.
The
main issue in this appeal is whether or not the Labour Court had
jurisdiction to entertain the application.
Counsel,
on behalf of the appellant, contended that the Labour Court had no
jurisdiction on two grounds. Firstly, in terms of section 12C of the
Labour Act, only where there is no agreement can the Labour Court be
approached to decide on the terms of the retrenchment. In this case,
the parties were in agreement and the matter was referred to the
Retrenchment Board and approved. Secondly, since there had been no
reference to compulsory arbitration by the Labour Officer, it was
vital, in order to invoke the jurisdiction of the Labour Court, to
allege “that it is not possible for a stated reason to refer the
dispute or unfair labour practice to compulsory arbitration” as
provided in subsection 5 of section 93.
We
are in agreement with the submissions by counsel for the appellant on
both points.
In
the absence of a reference to compulsory arbitration, it was
incumbent on the respondents to state, in their application, the
legal basis provided in subsection 7 of section 93 for their approach
to the Labour Court. This they failed to do. The application was
therefore not properly before the court a quo and it erred in
assuming jurisdiction.
Accordingly,
the appeal is allowed with costs. The judgment of the court a quo is
set aside and substituted as follows:
“The
application is dismissed with costs.”
