This
is an appeal against the entire judgment of the Labour Court sitting
at Harare, handed down on the 8 February 2017.
BACKGROUND
The
respondent was employed by the appellant as a Watchman from 3 May
2005. He lodged a complaint of unfair labour practice with the
conciliator alleging that, since January 2010, the appellant had been
paying him a salary which was below the National
Employment
Council
for Welfare
and Educational
Institutions'
rates. The respondent also alleged that the appellant had not been
paying him transport and housing allowances. The conciliator failed
to settle the matter and referred it for arbitration.
The
parties appeared before an arbitrator with the respondent claiming
payment of $15,293=84 in arrear salaries and allowances. The
appellant raised a point in
limine
relating to the legality of a labour consultant representing the
respondent in the proceedings before the arbitrator. The arbitrator
dismissed the point in
limine
and held that Article 24(4) of the Arbitration Act [Chapter
7:15]
allowed an employee to be represented by a person of their choice. In
the arbitrator's view, this included a labour consultant. The
appellant was aggrieved by the decision of the arbitrator and
appealed to the Labour Court, which dismissed the appeal. Aggrieved,
the appellant has appealed to this Court on two grounds that
essentially raise only one issue for determination;
This
is whether or not a labour consultant has, to use the appellant's
words, the 'locus
standi'
to
represent a party in arbitration proceedings.
PROCEEDINGS
BEFORE THIS COURT
It
is pertinent to note from the outset that the appellant improperly
uses the term 'locus
standi'
in relation to the Labour Consultant's representation of a party
before an arbitrator. The concept of locus
standi was
succinctly explained in the case of Zimbabwe
Allied Bank Limited v Dengu and Anor
SC52-16 as follows;
“The
principle of locus
standi
is concerned with the relationship between the cause of action and
the relief sought. Once a party establishes that there is a cause of
action and that he or she is entitled to the relief sought, he or she
has locus
standi.
The plaintiff or applicant only has to show that he or she has direct
and substantial interest in the right which is the subject-matter of
the cause of action.”
A
labour consultant, like a legal practitioner representing a party in
any court proceedings, would have no personal interest in the cause
of action in question nor the relief sought therein. He is an agent
of the party who has the requisite locus
standi
and for whom he or she acts. It follows, therefore, that the issue to
be determined in
casu
is not the locus
standi
of the labour consultant to represent a party before the arbitrator.
Rather, it is whether or not the labour consultant has the authority
to represent the respondent before an arbitrator.
In
its heads of argument, the appellant relies on section 92 of the
Labour Act [Chapter 28:01] (“the Act”) which provides as follows:
“A
party to a matter before
the Labour Court
may appear in person or be represented by:
(a)
A legal practitioner registered in terms of the Legal Practitioners
Act [Chapter
27:07];
(b)
An official or employee of a registered trade union or employer's
organization of which the party is a member.”…,.
While
the appellant correctly contends that this provision provides a
closed list of persons who may represent parties before the Labour
Court, it argues, nevertheless, that the same provision regulates
representation in labour proceedings before an arbitrator. For this
contention, the appellant relies on its interpretation of section
98(9) of the Labour Act [Chapter 28:01], which states as follows;
“In
hearing and determining any dispute, an arbitrator shall have the
same powers
as
the Labour Court.”…,.
The
import of the appellant's submission is that by virtue of being
clothed with the same powers as those of the Labour Court, the
arbitrator is, on that basis, empowered to bar labour consultants
from purporting to represent any party appearing before him or her.
The appellant argues that the Labour Act takes precedence over
provisions in the Arbitration Act that are inconsistent with it.
Further, that section 2(a)(3) of the Labour Act [Chapter 28:01]
states that it shall prevail over any other enactment that is
inconsistent with it. On this ground, the appellant avers that the
provision in the Arbitration Act, dealing with representation before
the arbitrator, being inconsistent with the Labour Act, is therefore
overridden by the provisions of its section 92.
The
respondent argues, in response, that the Arbitration Act is clear on
who may be a representative in labour proceedings before an
arbitrator. He submits, further, that there is no conflict or
inconsistency between the Arbitration Act and the Labour Act on the
question of who may represent a party before the two tribunals. The
submission is made that Article 24(4) of the Arbitration Act [Chapter
7:15] does, with as much clarity as section 92 of the Labour Act
[Chapter 28:01], as regards the Labour Court, set out who may
represent a party not acting in person at any hearing of the arbitral
tribunal.
The
appellant anchors its argument as regards the alleged inconsistency
between Article 24(4) of the Arbitration Act [Chapter 7:15] and the
Labour Act, on section 92 of the latter. This inconsistency, the
appellant argues, is what results in Article 24(4) of the Arbitration
Act being overridden by section 92 of
the
Labour Act [Chapter 28:01].
Article
24(4) of the Arbitration Act [Chapter 7:15] provides as follows:
“At
any hearing
or any meeting of
the arbitral tribunal
of which notice is required to be given under paragraph (2) of this
article, or in any proceedings conducted on the basis of documents or
other materials, the parties may appear or act in person or may be
represented by
any other person of their choice.”…,.
I
will state, at this juncture, that I do not find merit in the
appellant's contentions, nor its interpretation of the import of
the cited provisions, that is sections 92 and 89 of the Labour Act
[Chapter 28:01]. In this respect, I find the submissions made to be
unsustainable on two main grounds;
(i)
Firstly, section 89 of the Labour Act, which sets out the powers and
functions of the Labour Court refers to such powers as;
(a)
Hearing and determining applications and appeals in terms of the Act
or any other enactment; and
(b)
Hearing and determining matters referred to it by the Minister; 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
section 98(6);
(e)
Exercising the same powers of review as would be exercisable by the
High Court in respect of labour matters;
(f)
Doing such other things as may be assigned to it in terms of this Act
or any other enactment;
(g)
In the case of an appeal, to -
(i)
Conduct a hearing into the matter or decide it on the record; or
(ii)
Confirm, vary, reverse or set aside the decision, order or action
that is appealed against, or substitute its own decision or order;
and so on.
It
is evident from the above that the powers of the Labour Court, as set
out in section 89 of the Labour Act [Chapter 28:01] do not envisage
the determination, by that court of who may or may not represent any
party appearing before it. That issue is prescribed by section 92 of
the Labour Act [Chapter 28:01] and is solely to do with the conduct
of the proceedings themselves. By contrast, the powers conferred on
the Labour Court, in terms of section 89 of the Labour Act [Chapter
28:01] have everything to do with that court's jurisdiction and
competence to take certain action related to the substance of the
dispute before it or its resolution.
These
are the same powers that the arbitrator, in section 98(9) of the
Labour Act, is enjoined to exercise in determining matters that fall
within his or her jurisdiction. As the powers of the Labour Court,
clearly, do not include any reference to the issue of representation,
it follows that the arbitral tribunal is not obliged, by law, to
import into the conduct of its proceedings, the matrix of
representation that is outlined in section 92 of the Labour Act
[Chapter 28:01].
In
order to put the matter beyond any doubt, the Legislature saw it fit
to enact Article 24(4) of the Arbitration Act which governs the
representation of parties in labour proceedings before an arbitrator.
Taking
all this into account, the conclusion is inevitable that neither
section 92 of the Labour Act [Chapter 28:01] nor Article 24(4) of the
Arbitration Act [Chapter 7:15] are concerned with the powers of the
Labour Court, (and, by extension, of the arbitral tribunal), as
outlined in section 89 of the Labour Act [Chapter 28:01].
They,
accordingly, do not have to be consistent on that basis alone.
(ii)
Secondly, and in my view, the appellant mistakenly perceives a
conflict inter
se
as regards section 92 of the Labour Act [Chapter 28:01] and Article
24(4) of the Arbitration Act [Chapter 7:15], and, on that basis,
argues that the former provision should prevail in terms of section
2A(3) of the Labour Act [Chapter 28:01] which provides as follows:
“(3)
This Act shall prevail over any enactment inconsistent with it.”
The
meaning of this provision is clear. There must be a demonstrated
inconsistency between the enactment in question, and the Labour Act,
for the latter to prevail.
In
my view, an inconsistency arises only where two or more statutory
provisions address the same issue or subject matter differently.
In
casu,
two separate issues are addressed by the two provisions, namely,
representation in proceedings in the Labour Court (section 92 of the
Labour Act [Chapter 28:01]), and representation in proceedings before
the arbitral tribunal (Article 24(4) of the Arbitration Act [Chapter
7:15]). Despite the fact that both provisions are concerned with the
main issue of representation, it is the forum in which such
representation plays out that distinguishes the two.
Additionally,
and as a matter of logic, I do not believe a statutory provision
addressing a particular issue can override another that clearly deals
with a different subject matter. This is particularly so where, as in
casu,
neither provision is prefixed with the phrase “subject to…,” or
some such rider. The language of both provisions, in my opinion,
makes it clear that the Legislature fully intended the meaning and
effect thereof.
Before
the arbitrator, the respondent chose a representative in the person
of a labour consultant to represent him at the hearing. The word
'person' in the provision cited above does not come with any
qualification except that such person should be of the relevant
party's choice. This circumstance makes the ambit of Article 24(4)
of the Arbitration Act [Chapter 7:15] wider than that prescribed in
section 92 of the Labour Act [Chapter 28:01]. The person chosen by a
party can therefore be anyone, even a legal practitioner or an
official or employee of a registered trade union or employer's
organization, as envisaged in section 92 of the Labour Act [Chapter
28:01]. More to the point, however, is the fact that the provision
does not expressly exclude a labour consultant from representing a
party at a hearing before an Arbitrator. Therefore, being further
alive, as it must have been, to section 92 of the Labour Act [Chapter
28:01] which deals with representation, albeit
narrower in scope, of parties appearing before the Labour Court, the
Legislature must be taken to have deliberately widened the scope of
representation of parties in matters before the arbitral tribunal.
Both
provisions are clear in their meaning and admit of no ambiguity,
absurdity or any inconsistency. That being the case, it is my finding
that no legal basis has been laid for recourse to the Labour Act in
lieu
of the Arbitration Act on the issue of representation.
It
appears evident that the appellant, in its quest for a basis to
ascribe mutual inconsistency to the meaning and effect of these two
provisions, reached beyond and outside their clear meaning. Thus, it
seeks to persuade the court to confer on Article 24(4) of the
Arbitration Act [Chapter 7:15], an interpretation that is
inconsistent with its clear grammatical meaning. This approach, not
being justified, flies in the face of basic principles of statutory
interpretation. I am not persuaded that the appellant has proved a
case that justifies a departure from the general rule of
interpretation stated thus in E. A. KELLY's book 'The
Principles of Legal Interpretation: Statutes, Contracts and Wills',
First
Ed...,.:
“The
language of the legislature should be read in its ordinary sense, and
where it is clear, a court should not depart from the natural and
ordinary meaning.”…,.
DISPOSITION
I
find, when all is considered, that the appeal is without merit and
must therefore fail.
In
the result, it is ordered as follows; The appeal be and is hereby
dismissed with costs.
