GOWORA J: The
applicant filed an application in this court seeking relief which is stated in
the draft order as follows:
1. The respondent's
termination of the applicant's contract of employment effected on the 8th
April 2005, and communicated to him by way of a letter dated 9th May
be and is hereby set aside.
Prior to this dispute the applicant was employed by the respondent as a
personal banker until the 8th April 2005 when his contract of
employment was unilaterally terminated by the respondent. The background to the
unilateral termination aforementioned is as follows. On 4th April
2001, the parties herein concluded an agreement in terms of which the
respondent availed to the applicant sabbatical leave to permit him to perform
his duties as a member of the Parliament for Zimbabwe, the applicant having been
elected to that office on the Movement for Democratic Change (MDC) party
ticket. In terms of the agreement, the sabbatical leave was for the duration of
that term of Parliament. In March 2005 after the term envisaged came to an end
the applicant again stood for re-election. He was successful in his endevours
and thus was a member of the Parliament for the subsequent term. After the
elections he reported for duty on 3rd April 2005 and was advised his
services were no longer needed. On 9th April 2005 he then received a
letter advising him that his contract of employment had been terminated. He has
therefore filed these proceedings for an order 'setting aside the termination'.
Two preliminary issues have risen for determination, firstly, whether or
not the deponent to the opposing affidavit had the necessary authority to
depose to the same and thus defend the application. The second is whether the
application is properly before this court in view of the provisions of s 89 of
the Labour Act [Chapter 28:02] (the
Act) which ousts the jurisdiction of other courts or tribunals in certain
instances to do with labour matters. It
would be in order to deal with the question of jurisdiction before I determine
whether or not the affidavit by the deponent to the opposing affidavit has been
sworn to by a person with the requisite authority to do so.
In terms of S 89 (1) amongst the powers bestowed on the Labour Court by
the enabling Act is the power to in subsection (1) (di) to exercise the same
powers of review as would be exercisable by the High Court in respect of labour
matters. This was the amendment ushered in by the Labour Amendment Act 7 of
2005. The application was filed on 9 March 2006. It is therefore common cause
that when the application was filed the Labour Amendment Act 7 of 2005 had
already been promulgated. That Act came into effect on 30 December 2005. The
effect of this, contends the respondent, is to oust the jurisdiction of the
High Court in labour matters even where the issue concerns a review. The
respondent in this contention relies on s 89 (6) of the Labour Act [Chapter 28:02]. According to the
respondent the section brings about a statutory ouster of jurisdiction by the
High Court where applications, appeals or matters referred to in subsection (1)
are concerned. The section is in the following terms:
"No court,
other than the Labour Court,
shall have jurisdiction in the first instance to hear and determine any
application, appeal or matter referred to in subsection (1)."
The applicant does not dispute that
the application is before this court as a court of first instance. He however
disputes that the nature of the relief that he seeks is what is provided for in
s 89 (1). He contends that what he seeks is a declaratur in which event the
High Court would have jurisdiction to hear and determine the application.
According to the respondent, the applicant, whatever he wishes to call his
application, is seeking a review of the decision to terminate his employment.
In the body of the founding
affidavit, at this juncture it is only proper that I mention the grammatical
inadequacy of the said affidavit, the applicant avers that what he seeks is a
declaratur, the effect of which is sought to declare that the termination of
employment is null and void. The basis for nullity of the termination of
employment has not been specified in the affidavit. It is only in the answering
affidavit that the applicant, in a terse sentence, for the first time mentions
that in terminating the contract of employment, the respondent should have had
recourse to the registered code of conduct which is the instrument that ought
to have been used. In this manner is the question of illegality raised. It is
not referred to in any other form. In the answering affidavit, the applicant
then states that his right to freedom of assembly, as enshrined in sections 20 and 21
of the Constitution have been violated by the respondent as he was given
express permission to participate in the elections. Further he contends that the
respondent is violating his rights as guaranteed by sections 81 and 89 of the
Constitution. He avers that he is entitled to due process and thus he was
entitled to be heard before an adverse decision is taken. He avers that the
respondent had breached the labour laws of this country as it had not followed
the provisions of section 12B or 12C of the Act in terminating his contract of
employment. He concludes by stating that he had approached this court directly,
notwithstanding the provisions of section 93 of the Act, because of the Constitutional
issues raised in the affidavit.
The
incidence of s 89 (6) of the Act resulted in a number of judgments from this court in relation to the instances where it
would retain jurisdiction in the first instance, to determine issues relating
to labour matters. In Tuso v City of
Harare,
BHUNU J decided that this court did not have jurisdiction to consider reviews
arising out of contracts of employment as that power had been bestowed on the Labour
Court by virtue of s 89 (6) and which also ousted the power of the High Court
to review such decisions. In Sibanda
& Anor v Chinemhute N.O. &
Anor MAKARAU J (as she then was) had to consider
whether or not, in the construction of s 89 (6) this court still retained the
power to issue declaratory orders. This is what she had to say:
"Thus, the power
to issue a declaratory order is not available in all courts that apply common
law. It is specific to this court.
It is common
cause that the Labour Court
has not been specifically empowered to issue declaratory orders as this court
has been. It cannot create such a relief or the procedure for granting such
relief as it is not a court of inherent jurisdiction".
It
stands to reason therefore that if the relief that the applicant seeks is in
the nature of a declaratory order, this court would have original jurisdiction
as that power has not been specifically ousted by statute. The draft order
annexed to the application is in the following terms:
"The respondent's
termination of the applicant's contract of employment effected on the 8th
April 2005, and communicated to him by way of a letter dated 9th May
2005 be and is hereby set aside".
According to the respondent, it is
not what the applicant wishes to call his application that matters but rather
the substance of the relief he claims that is important. What the applicant seeks
from this court is the court grants him an order for reinstatement in his
former position. To that end he has invoked the audi alteram partem principle to the effect that he was not heard
before the respondent made a decision dismissing him from his employment. It is
trite that the audi alteram partem
rule is a ground for review. Reviews relating to labour matters issues for
determination at first instance is one of the matters specifically reserved for
the Labour Court.
The jurisdiction of the High Court to determine such a review has been ousted
by the Legislature under the Act and the applicant would therefore not be
afforded relief by this court in respect of the same.
In addition to the above ground, the
applicant has contended further that the respondent had, by its failure to
proceed in terms of its registered code of conduct in dismissing him from
employment, 'breached the labour laws' of the country. The applicant, in his
affidavit, makes reference to the provisions of s 12 of the Act. In heads of
argument filed on his behalf extensive reference to the Act and provisions of
S.I. 130/2003 is made by the applicant which submissions, in my view, raise legal
issues pertinent to the appropriateness of the dismissal of the applicant on
the merits of such dismissal. For instance, the applicant has contended in his
heads of argument that the respondent did not have the right to terminate the
contract of employment between the two parties hereto except in accordance with
the provisions of the Act, either on the basis of S.I. 130/2003 for
disciplinary reasons or, alternatively, in terms of a registered code of
conduct, or by means of a no fault terminations which is provided for in terms of
s 12C of the Act.
The further contention by the
applicant is that in view of the clarity and lack of ambiguity of s 12 of the
Act and s 2 of S.I. 130/2003, an employer can only terminate a contract of
employment in accordance with the provisions of a registered code of conduct or
the Act. Therefore, so the argument
goes, any purported termination which does not accord with the provisions of a
registered code of conduct or which has not been done in terms of the Act and
the regulations is as a consequence, null and void. The respondent did not
proceed either in terms of a registered code or the Act and regulations and
therefore the purported termination is rendered null and void. For this
contention, the applicant has sought reliance on Masasi v PTC, and
Gumbo v PTC.
My reading of the authorities cited does not make me come to the same
conclusion as the applicant. The issue for determination in those authorities
was concerned with whether or not the Act applied to the employees of P.T.C
Consequently the dicta in the authorities is to the effect that the Act is
applicable to employees of the PTC.
Section 12 of the Act provides for the
duration, particulars and termination of
contracts of employment. S 12A provides for the remuneration of an
employee and deductions from such remuneration. S 12B is concerned with the
dismissal of employees from employment whilst 12C deals with the question of
retrenchments. By arguing that his dismissal from employment was not effected
in terms of the provisions of s 12, the applicant is inviting this court to
view the manner of his dismissal vis-`a-vis the provisions of the Act. In order
then to determine whether or not the dismissal was null and void, this court
would have to have regard to the provisions of s 12 of the Act and come to a
finding as to what the section requires of an employer before he can dismiss an
employee. The provisions of the section then have to be considered in the light
of the actions or omissions on the part of the respondent in effecting the dismissal
of the applicant.
Thus an exercise undertaken by this court to
examine the manner in which the respondent effected the dismissal of the
applicant is, in this case, no more than a review of that process. The argument
by the applicant that what he seeks is a declaration of nullity which form of
relief is not reserved by the Act to the jurisdiction of the Labour Court does not, to my mind,
detract from the nature of the relief sought by the applicant. In determining the
nature of the relief that is sought by a litigant a court is bound to examine
the process by which the relief being sought can be achieved. A draft order cannot,
on its own, per se be the determining factor of the nature of such relief as
the draft order is achieved or arrived at through a process. In this case, it
is pertinent to note that one cannot determine the matter without subjecting
the conduct of the respondent to scrutiny in light of the provisions of s 12 of
the Act. Such process by a judicial officer in the circumstance pertaining in
this application, no matter what the applicant may choose to name it is a
process of review. Thus a declaration of nullity by this court can only come
about in this case after a process of review. This court, in view of the
provisions of the Act, is strictly precluded from exercising powers of review
in the first instance over matters to deal with labour issues as that function
has been specifically reserved for the Labour Court. Thus I decline jurisdiction
in this matter.
Over and above this, the applicant
has, in his founding affidavit and heads of argument, made certain averments
and conclusions as to the contractual nature of his relationship with the
respondent and the effect on the contract of the actions of the latter in
terminating the same. The applicant contends that the nature of an employment
contract are such that the terms are fixed and that neither party thereto
can unilaterally vary the same unless
the original contract provides for such variation. It cannot have escaped the
applicant in having submissions of this tenor made on his behalf that the court
is being asked to pronounce on the terms and conditions pertaining to a
contract of employment and whether or not the termination by the employer was
done in accordance with our law. According to the Act, in particular s 3,
thereof, the Labour Act applies to all employers and employees save where the
employment is in terms of the Constitution. The applicant was not employed in
terms of the Constitution, This application therefore falls under the
provisions of S 89 (1) of the Act and this court does not have the jurisdiction
to determine the matter.
It
is not important in view of my finding above that I determine the other
preliminary issue as this court does not jurisdiction to consider the merits of
the application.
Accordingly
I find that the application is not properly before this court and it is hereby
dismissed with costs.
Honey & Blanckenberg, legal practitioners for the applicant.
Gill Godlonton &
Gerrans, legal practitioners for the respondent.
