MATHONSI J: This is an application in which the
applicant seeks the following order:
“It is ordered that:
1. The respondent's
suspension letter of the 14th August 2011 be and is hereby declared
null and void.
2. The disciplinary hearing
held on the 3rd October 2011 and subsequent proceedings be and is
(sic) hereby declared null and void and the respondent is hereby barred from
further charging and prosecuting the applicant.
3. The respondent be and is
hereby ordered to reinstate the applicant without loss of salary and benefits.
4. The respondent shall pay
the costs of this application.”
In his founding affidavit, the applicant states that he was
employed by the respondent in 2003 as a deport messenger for Murewa and that
the relationship between the parties is governed by a Code of Conduct which he
has attached to the application. He states further that he was suspended
without salary and benefits on 14 August 2011 and was subsequently charged with
misconduct.
After aborted hearings, a disciplinary hearing finally took
place on 3 October 2011 albeit late. On 12 October 2011 he was notified of the
outcome of the hearing which was a verdict of guilty of misconduct and a final
written warning. In terms of the Code of Conduct of the respondent, the
management appealed that decision to the General Manager who upheld the appeal
and ordered the dismissal of the applicant from employment.
In his view, the disciplinary proceedings were a smoke
screen intended to achieve a predetermined goal because the respondent's
general manager had come out on national television announcing to the nation
that he had fired two employees at GMB Murewa deport.
He therefore seeks the relief aforesaid on the grounds that
there was a breach of the Code of Conduct which rendered the disciplinary
proceedings a nullity in that his suspension was not done by his departmental
head as required by the Code. A determination was not made within 14 days in
breach of a provision in the Code. He was not properly advised of the outcome
of the disciplinary hearing and he was not accorded a fair hearing again in
breach of provisions of the Code. The appeal process was also done in violation
of the Code.
The respondent, on the other hand opposes the application
on the basis that the remedy sought by the applicant is not available to him in
law. The respondent insists that the disciplinary proceedings were conducted in
accordance with the Code of Conduct governing the relationship of the parties.
The issue which however exercises my mind is whether it was
appropriate for the applicant to approach this court seeking the relief that he
seeks. The applicant insists that his relationship with the respondent is
governed by the Code of Conduct and has come to court protesting what he
perceives to be serious breaches of that Code of Conduct which has been made
available to the court. Clause 6 G of that code provides:
“The Appeals Procedure
(i)
If either party is dissatisfied with the decision made by the disciplinary
hearing committee, they may appeal to the General Manager within seven (7)
days.
(ii)
The General Manager through the Appeals Committee shall resolve the appeal within
fourteen (14) days.
(iii)
If either party remains dissatisfied after the decision by the General
Manager, they may seek redress from the Labour Court.” (The underlining is
mine)
Mr Maphosa for the applicant argued that this is
an application for a declaratory order and that this court must entertain it
for that reason. I do not agree. The applicant elected to ignore the available
domestic remedy provided for in the Code of Conduct preferring to seek redress
in this court. There is a catena of cases in which this court has stated that
it will be very slow to exercise its general review jurisdiction where a
litigant has not exhausted available domestic remedies before approaching the
court. It will only exercise that jurisdiction where good cause is shown for
the early approach: Musandu v Cresta Lodge Disciplinary and
Grievance Committee HH 115-94; Moyo v Forestry Commission
1996 (1) ZLR 173 (H); Tuso v City of Harare 2004 (1) ZLR 1
(H); Chawora v Reserve Bank of Zimbabwe 2006 (1) ZLR 525 (H);
Tutani v Minister of Labour & Ors 1987 (2) ZLR 88 (H); Moyo
v Gwindingwi N O & Anor HB 168/11.
In Moyo v Gwindingwi (supra) at
pp 3 - 4 this court made the following pronouncement which I still stand
by:
“In my view, domestic remedies in this particular case are
those remedies and the procedure set out in the code of conduct as being
available to an aggrieved party to pursue. An appeal to the Labour Court from a
decision of the Director of Corporate Services is provided for in the code of
conduct. It is a domestic remedy available to the applicant and she has to
exhaust it.”
In casu an appeal to the Labour Court from a
decision of the General Manager is a domestic remedy available to the
applicant. It is able to afford him redress. Therefore the applicant has not
exhausted domestic remedies as he should have proceeded in the Labour Court by
way of appeal. The application cannot succeed on that basis. It does not help
the applicant to call it an application for a declarator as argued by Mr Maphosa.
He had other domestic remedies available and for that reason this court will
not exercise jurisdiction.
Even if I am wrong in that conclusion, the applicant still
has the insurmountable difficulty arising from the provisions of s 89 (6) of
the Labour Act [Cap 28:01] which provides:
“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 subs (1)”
Subsection (1) of s 89 lists the
functions of the Labour Court. It states:
“The Labour Court shall exercise the following functions -
(a) hearing and determining applications
and appeals in terms of this Act or any other enactment; and
(b) hearing and determining matters referred to
it by the Minister in terms of this Act; and
(c) referring a dispute to a labour
officer, designated agent or a person appointed by the Labour Court to
conciliate the dispute if the Labour Court considers it expedient to do so;
(d) appointing an arbitrator from the panel of
arbitrators referred to in subs (6) of s 98 to hear and determine an
application.
(d1) exercise the same powers of
review as would be exercisable by the High
Court in respect of labour matters.
(e) doing such other things as may be
assigned to it in terms of this Act or any other enactment.”
The jurisdiction of this court has therefore been ousted in
matters provided for in the Labour Act. This court retains jurisdiction in
respect of only those matters falling outside the ambit of the Act.
The Labour Court has jurisdiction in all matters where the
cause of action and the remedy for that are provided for in the Act: Medical
Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H) 114 C; DHL
International (Pvt) Ltd v Madzikanda 2010 (1)
ZLR 201 (H) 204 A.
The applicant's claim arises out of what he perceives to be
an unlawful termination of his employment contract. He seeks his reinstatement
on the basis that the entire disciplinary process was flawed. These are matters
which fall within the jurisdiction of the Labour Court. The jurisdiction of
this court has therefore been ousted by s 89 (6) of the Act.
The applicant has unfortunately proceeded in the wrong
court without even exhausting domestic remedies.
Accordingly the application is hereby dismissed with costs.
Chirenje Legal Practitioners, applicant's legal practitioners
Garabga, Ncube
& Partners respondent's legal practitioners
