In
his opposing affidavit the respondent states as follows-
“1. I wish to raise a
point in limine. It is common cause that on 9 October 2009, I instituted
proceedings in the Labour Court challenging applicant's decision to terminate
my employment contract summarily, see copy of proof of service and copy of the
application of ...
In
his opposing affidavit the respondent states as follows-
“1. I wish to raise a
point in limine. It is common cause that on 9 October 2009, I instituted
proceedings in the Labour Court challenging applicant's decision to terminate
my employment contract summarily, see copy of proof of service and copy of the
application of review and appeal attached hereto marked annexures (A), (B) and
(C).
2. It is common cause
that those proceedings are still pending and have not been disposed of.
3. There is,
accordingly, a litigation pending between the parties on the same cause of
action, and in respect of the same subject matter, in the Labour Court, and
this Honourable Court should decline to exercise its jurisdiction as this is
purely a labour matter which should be dealt with, and has been properly placed,
before the Labour Court”.
The
respondent further declares: “I will state that I am in possession of the items
pending the settlement of the matter as stated in above Ad Para 3”. The
respondent therefore urged the court to dismiss the application.
It was further submitted that the
subsequent action placed before the Labour Court by the respondent was based on
an allegation of an unfair labour practice on the part of the applicant.
However, in casu, the applicant was seeking relief based on the actio rei
vindicatio. The matters before the courts, according to the applicant, were,
therefore not based on the same subject matter. That being the case, and based
on its “full original civil jurisdiction over all persons and over all matters
within Zimbabwe”, it was argued, this court had jurisdiction to entertain the
application unless that jurisdiction is clearly ousted in terms of legislation.
The Labour Court, it was argued, as a special court, only dealt with matters
provided for in the Labour Act [Chapter 28:01]. There was no provision for an
application for vindication in the Labour Act [Chapter 28:01]. This court
therefore had the jurisdiction to deal with such an application, it was submitted.
In
his supplementary Heads of Argument filed on his behalf..., the respondent
argued as follows –
“1.1.The applicant,
through this application, seeks the restoration of certain property that is in
the respondent's possession consequent upon the employment relationship that
subsists between the parties.
1.2. It is common
cause that there is an ongoing labour dispute between the parties herein, in
which the respondent has made an application, to the Labour Court, for a
determination of his dismissal as having been unfair.
1.3. It is also
common cause that the application made by the respondent in the Labour Court,
falls within the ambit of the provisions of s89(1) of the Labour Act, more
particularly s89(1)(a).
1.4. It also follows
therefore, that the provisions of s89(6), quoted above, apply to this matter.
While the application made herein is one for the restoration of the assets in
the respondent's possession as a consequence of his employment, that issue
cannot be related to in isolation from the main application made by the
respondent in the Labour Court, which application has the potential of
disposing of the whole issue once and for all.
1.5....,.”
Relying on Zimtrade v Malord
Makaya HH52-05, the respondent
submitted that the restoration of the applicant's property could not be
separated from the determination of the labour dispute. The matter, it was
argued, fell within the provisions of section 89 of the Labour Act [Chapter
28:01] which gives the Labour Court powers to hear and determine issues in
labour disputes in the first instance. In support of his case, the respondent
quoted from Zimtrade v Malord Makaya HH52-05...,
where MAKARAU J..., said -
“Notwithstanding the arguments
advanced by Mr Dondo, I am of the opinion that matters relating to suspension
from employment, with or without salary, and matters relating to dismissals,
are specifically within the purview of the Labour Court as these are matters
that are provided for in the Act and the regulations made thereunder. There is adequate
provision under the Act for setting up machinery to resolve such disputes. Thus,
following my reasoning in the SIBANDA
matter, the jurisdiction of this court is specifically ousted in respect of
matters of dismissals and suspensions as these are specifically provided for
the Act”. ...,.
The respondent went further to
state that the same principles alluded to in the Zimtrade v Malord Makaya HH52-05 case..., had been given the
same force in T.O. Nyandoro v Cimas Medical Aid Society HC 6652/08 where
MAKARAU JP..., again said -
“I have had occasion to comment
on the jurisdiction of this and the Labour Court in MARTIN SIBANDA & ANOR v BENSON CHINEMHUTE & ANOR HH131-04. In
that matter, I came to the conclusion that s89(6) of the Act takes away the
jurisdiction of this and other courts, in the first instance, in all matters
where the Labour Court has been specifically granted jurisdiction. The
meaning that I gave to the section in that judgment was that whatever the
Labour Court was specifically empowered to do, it would do exclusively. I
remain of the same opinion”. ...,.
I now come to the issue of
jurisdiction. In casu, the argument to deny this court jurisdiction is largely based on the provision of section
89(6) of the Labour Act [Chapter 28:01] which provides as follows -
“(6) 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).”
It
is not in dispute that this application is for vindication and is, therefore,
not in terms of the Labour Act [Chapter 28:01]. However, the respondent argues
that the property in question, having come into his possession through his
employment by the applicant, that property cannot be separated from a dispute
that relates to his employment. The property formed part of his conditions of
service as per the contract of employment. Indeed, in his points in limine, the
respondent states as follows -
“1. Respondent will
argue that the determination of this has a direct and substantial effect on the
outcome of the matter pending in the Labour Court in that the outcome of the
matter in the Labour Court will resolve the validity of the termination of the
employment contract in terms of which the respondent acquired permission of the
assets concerned. Put differently, if the High Court were to rule in favour of
the applicant it would have, in essence, accepted as fact that the respondent's
contract of employment was validly terminated by the applicant, yet that issue is not before the
High Court. Significantly, the High Court will have usurped the powers of the
Labour Court to determine the validity of the respondent's employment contract.”
The respondent goes on to state
as follows -
“Respondent admits
that applicant is the owner of the assets and that respondent is in possession
of the assets. Respondent will argue that he is in possession of the assets in
terms of an employment contract entered into between the parties. A copy of the
contract is attached. Respondent will further argue that the said contract of
employment was unlawfully and summarily terminated by applicant by letter dated
18 September 2009. A copy of the letter is attached.”
A
reading of the offer letter of employment will show that clause 20 thereof
provides as follows -
“You will be entitled
to purchase a Company vehicle of your choice up to a certain value limit.
Should you wish to procure a vehicle with a cost price in access of this limit,
this will be approved, provided that the extra sum is paid, in cash, by
yourself at the time of purchase. All fuel and maintenance costs will be for
your account, and your basic salary does include an allowance for fuel for
business travel in and around Shurugwi/Gweru. Your will be entitled to claim
for any other prior approved business travel at A.A. Rate, less the portion of
the rate for Insurance and Licensing. Full details of the scheme will be
available after acceptance of this employment opportunity.”
The foregoing clearly shows that
the vehicle belonged to the applicant and, in his heads of argument, the
respondent states as follows -
“Respondent admits that the
applicant is the owner of the assets and that the respondent is in possession
of the assets.”
In..., his opposing affidavit the
respondent also states that -
“I will state that I am in
possession of the items pending the settlement or the matter as stated in above
AD Para 3.” (AD Para 3 refers to the settlement of the labour dispute in the
Labour Court).
My
view is that section 89(6) of the Labour Act [Chapter 28:01], as quoted in this
judgment, clearly gives exclusive jurisdiction to the Labour Court in all labour disputes. Given the wording of that
section, I do not see how any other court can seek to place itself as a court
of first instance in any labour dispute. Admittedly parties retain the right to
follow the arbitration route. Notwithstanding its inherent jurisdiction, I
think this court should go a long way to give effect to the legislature's
intentions in creating a special court to deal with all labour disputes in the
country. Clearly, in terms of section 89(6) of the Labour Act [Chapter 28:01],
the power to hear and resolve the labour dispute between the parties in casu
resides in the Labour Court. Indeed, as I have already said, an attempt by any
other court, at this stage, to deal with any aspect of the dispute, would
certainly amount to interference with the special functions bestowed on the
Labour Court by the legislature. That is the reason why the legislature was
quite specific as to clearly state that: “No court, other than the Labour
Court” would have jurisdiction in the first instance to hear and determine
matters of this nature.
This is a case of dismissal from
employment and therefore a labour dispute.
I therefore believe that once any
other court is satisfied, in a matter placed before it, that the issues for
determination therein are entirely anchored on a labour dispute, then such
court should immediately refer the matter to the special court, namely the
Labour Court. Such a move, would, in my view, be in line with the intentions of
the legislature as spelt out in the Labour Act [Chapter 28:01]. I therefore find merit in the respondent's
opposition to this application. The application cannot therefore succeed. I accordingly
order as follows -
1.
The application be and is hereby dismissed.
2. The applicant shall pay costs of suit.