On 13 April 2021, the applicants filed a chamber application for condonation and extension of time to appeal in terms of Rule 61 as read with Rule 43 of the Supreme Court Rules 2018.
It is opposed by the first respondent.
They seek the following relief:
1. The application for condonation and non-compliance with Rule 60(2) of the Supreme Court Rules 2018 be and is hereby granted.
2. The application for extension of time within which to file and serve a notice of appeal in terms of the Rules be and is hereby granted.
3. The applicants shall file their notice of appeal within five (5) days after the date this order is granted.
4. Each party shall bear its own costs.
THE FACTS
The deponent to the applicants founding affidavit was their legal practitioner of record by reason of his intimate involvement in the matter and the purely procedural nature of the relief sought.
The legal practitioner has acted in that capacity from the time the two challenged the termination of their employment before a labour officer on 20 November 2015, in the confirmation proceedings before the Labour Court on 18 November 2016, and in the three false starts that this matter has had in this Court in SC566/17 (an appeal), SC743/17 (application for striking of the appeal by the first respondent) and SC1089/17 (an application for joinder by the first respondent).
The two applicants were formerly employed by the first respondent as a Procurement Director and General Manager, respectively.
The first respondent (the employer) is a confectionery company incorporated in Zimbabwe, which is no longer trading. It has, however, been succeeded by Innscor Africa Ltd t/a Baker Inn Bakeries.
The second respondent is the labour officer who heard the dispute between the parties and sought confirmation of his ruling in the Labour Court in November 2016.
The first applicant and the employer purportedly concluded a consensual written agreement of termination of employment on 5 June 2014.
The agreement was alleged to have been brokered by Owen Murumbi, the former Finance and Human Resources Director of the employer.
The two parties signed the agreement and Owen Murumbi also appended his signature as a witness to the agreement.
The first applicant regards the termination to be a retrenchment process.
The second applicant was retrenched with the approval of the Retrenchment Board (the Board) on 5 December 2014.
He signed a retrenchment agreement in which, in paragraph 5, he absolved the first respondent from any further claims arising from the retrenchment process.
The two applicants were aggrieved by the entire retrenchment process.
They requested the labour officer to adjudicate a case of unfair dismissal and non-payment of employment benefits. The labour officer dismissed their claim in his draft ruling on 2 September 2016.
He provisionally held, that, the termination in respect of the first applicant was by mutual consent. He found that mutual consent was depicted by, firstly, the signatures of the first applicant and his witness; and, secondly, by the first applicant's unequivocal acceptance and consumption of the terminal package.
Regarding the second applicant, he found that he had been properly retrenched in accordance with the relevant statutory dictates of the Labour Act.
He also found the second applicant's specific disclaimer against the first respondent, in respect of any prospective claims arising from the retrenchment process, and his unequivocal acceptance and utilization of his substantial retrenchment benefits, to be inconsistent with the challenge before him.
He further found that both applicants had, by their acceptance without reservation, and further utilization of the terminal benefits, waived their legal right to challenge their respective termination processes.
Lastly, he declined to assume jurisdiction in respect of the Share Subscription Agreement on two bases:
(i) The first was that the first applicant had failed to establish that the agreement was concluded with his employer.
(ii) The second was that it had a reservation arbitration clause.
Thereafter, the labour officer sought confirmation of his draft ruling at the Labour Court on 16 November 2016.
The Labour Court confirmed the ruling on 19 May 2017.
It specifically found, that, by virtue of their seniority in the first respondent, the applicants must have knowingly waived their rights to challenge their respective terminations by the acceptance without reservation, and by the consumption of their terminal packages.
It also confirmed that the labour officer lacked the jurisdiction to deal with the Share Subscription Agreement as it was a contractual and not a labour issue.
Aggrieved by the confirmation, the applicants appealed to this Court in SC566/17 on 4 August 2017.
The subsequent chamber application instituted by the employer, to strike off the appeal under SC743/17, was dismissed. Resultantly, the employer sought to be joined in the appeal on 18 December 2017, in SC1087/17.
The application for joinder was set down together with the appeal hearing.
At the hearing, on 22 February 2018, this Court mero motu raised the propriety of the confirmation proceedings.
The views of this Court must have prevailed, as an order by consent, in which the employer withdrew the joinder application while the applicants withdrew the appeal ensued.
A further attempt to file another notice of appeal at the Labour Court was declined by the Registrar of the Labour Court on the ground that such a notice was, in terms of section 92F of the Labour Act [Chapter 28:01] (the Act), due at the Supreme Court.
Thereafter, the applicants concerted effort to the Registrars of the Labour Court and Supreme Court, in March 2018, for directions on the appropriate procedure to assail the draft ruling went unanswered.
On 25 September 2018, some seven months after the consensual withdrawals, this Court passed judgment in Drum City (Private) Limited v Brenda Garudzo SC57-18.
In that case, the labour officer entered a draft ruling in favour of the employee and against the employer. The labour officer then sought confirmation of the draft ruling before the Labour Court, in terms of section 93(1) as read with section 93(5a) and (5b) of the Labour Act.
She cited the losing employer as the only respondent, purportedly in terms of section 93(5a) of the Labour Act, which required “the employer or any other person against whom the ruling is made” to be the respondent in the confirmation proceedings.
This Court held, that, the legislature could not have intended to exclude a party with a direct and substantial interest in the confirmation proceedings, such as the employee in whose favour the draft ruling pertained, from participating in such proceedings as a co-respondent.
It accordingly allowed the appeal, set aside the confirmation proceedings, and remitted the matter to the Labour Court for the joinder of the employee and a re-hearing of the confirmation.
However, at paragraphs [12] and [13] this Court, en passant, remarked that:
“[12]…, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss(5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).
That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) which specifically provides for a ruling like the one in casu in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'
[13] Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer which is made in favour of an employer and against an aggrieved employee. It follows that the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.”
These remarks were jettisoned by MALABA CJ in the Constitutional Court in Isoquant Investments (Pvt) Ltd t/a ZIMOCO v Memory Darikwa CC06-20…,. He pertinently observed that:
“One cannot interpret the Drum City (Pvt) Ltd case supra as authority for the proposition that it would only be cases where a draft ruling has been made against the employer that confirmation proceedings would ensue. The remarks were made as obiter dictum. The ratio decidendi of that case is that an employee must be joined in confirmation proceedings.”
The remarks in [12] and [13] were clearly obiter dictum because they did not relate to the issue that was before the court, which was whether or not the Labour Court could properly hear and determine an application for confirmation in which the employee was not cited.
The remarks answered the question, which was not before the Supreme Court, whether confirmation proceedings could be lodged in respect of a draft ruling that was made against an employee.
Before the Constitutional Court was a contention that the citation of the employer or other person against whom the draft ruling related, to the exclusion of the employee, infringed the employer's right to equal protection and benefit of the law enshrined in section 56(1) of the Constitution.
The Constitutional Court, inter alia, relied on the ratio decidendi of Drum City (Private) Limited v Brenda Garudzo SC57-18, and held that despite the “statutory ambiguity or vagueness” in the words “employer or other person” in section 93(5a) and (5)(c) of the Labour Act, the employee was a necessary party to the proceedings. Further, that, the architecture of the entire provisions of section 93 of the Labour Act required that a draft ruling be subjected to confirmation proceedings irrespective of whether it was in favour of the employer and against the employee, or in favour of the employee and against the employer.
It was on the basis of the reasoning of the Constitutional Court that the applicants lodged the present application on 13 April 2021.
It was opposed by the first respondent on 20 April 2021.
The applicants filed an answering affidavit on 22 April 2021. Thereafter, the applicants filed their heads on 28 April 2021 while the first respondent did so on 12 May 2021....,.
THE MERITS
The requirements for the application
A court considers the extent of the delay, reasonableness of the explanation for the delay, prospects of success and importance of the case, respondent's interest in the finality of his judgment, convenience of the court, and avoidance of unnecessary delay in the administration of justice.
However, it is trite that the main requirements for an application of this nature are the extent of the delay, the reasonableness of the explanation for the delay, and the prospects of success: see Ester Mzite v Damafalls Investments (Private) Limited SC21-18.
THE EXTENT OF THE DELAY
The Labour Court refused to confirm the proceedings on 19 March 2017. Leave to appeal was granted by that court on 9 July 2017. The appeal should have been filed by 15 August 2017.
The present application was filed on 20 April 2021.
It is common cause that this period, which is in excess of three (3) years and eight months, is inordinate.
THE REASONABLENESS OF THE EXPLANATION FOR THE DELAY
The real reason for the delay was that the applicants were prevailed upon by this Court to withdraw the appeal on 22 February 2018. The applicants withdrew the appeal because they accepted the misconception that confirmation proceedings that they sought to impugn were a nullity by reason of lack of jurisdiction by the Labour Court to confirm a draft ruling made against an employee by a labour officer.
That view was subsequently affirmed by this Court in Drum City (Pvt) Ltd v Brenda Garudzo SC57-18 at paragraphs [12] and [13].
It was, however, authoritatively jettisoned by the Constitutional Court in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 at p25.
The applicants have always been desirous to test the correctness of the judgment appealed against but for the mis-interpretation of the relevant provision of the Labour Act by this Court.
This is demonstrated by their desperate attempt, in March 2018, to appeal the confirmation in the Labour Court under the mistaken belief that it had reverted to being the decision of the labour officer.
I would have accepted the explanation on the misconstruction of the jurisdiction of the Labour Court by this Court to have been a reasonable explanation for the delay had the applicants filed the present application soon after the reasons for judgment were availed in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20, in June 2020.
The applicants, however, justified their failure to file the application soon after the Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 judgment on the COVID 19 induced lockdowns.
The endemic lockdowns resulted in the closure of court operations between 30 March 2020 and 11 May 2020 and 5 January 2021 to 1 March 2021. During this period, only urgent matters were set down, heard, and determined.
The courts were, however, in full session between 11 May 2020 and 4 January 2021 and between 1 March 2021 and the date on which the applicants filed the present application on 12 April 2021.
There was no legal impediment against the filing of the application immediately the reasons for judgment were delivered in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20.
The applicants did not proffer any reasonable explanation as to why they failed to lodge the present application during these periods.
My overall finding is, therefore, that the explanation given for the delay was unreasonable.
I agree with counsel for the first respondent, that, the applicants failed to provide a reasonable explanation for the inordinate delay.
THE PROSPECTS OF SUCCESS
The three main factors are not individually decisive in granting the indulgence sought by the applicants.
The remarks of SANDURA JA in Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) are worth repeating. He stated that:
“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”
In the present case, strong prospects of appeal may be the determinant factor.
It is common cause, that, the parties did not produce the consensual agreement to the labour officer. The first respondent failed to locate it, and, suggested that it must have been illegally removed from its custody by its former Finance and Human Resources Director, Owen Murumbi, on the subsequent termination of his employment.
The first appellant maintained such an agreement did not exist.
The labour officer, and the court a quo, made positive findings that the agreement was in existence and that the parties and their witnesses had appended their signatures on the agreement.
Counsel for the applicants argued, that, such a positive finding by both the labour officer and the court a quo, in the absence of the agreement, was so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided, would have arrived at it.
He, therefore submitted, that, such a finding constitutes a misdirection which allows this Court to interfere with it.
His contention is based on the authority, amongst others, of TM Supermarket v Mangwiro 2004 (1) ZLR 186 (S); Reserve Bank v Granger & Anor SC34-01; and Zvokusekwa v Bikita Rural District Council SC44-15…,.
Counsel for the applicants further contended, that, the failure to apply the peremptory retrenchment procedures set out in section 12C(11)(a)(i) and (ii) and (b)(i) and (ii) of the Labour Act [Chapter 28:01] before its amendment by the Labour Amendment Act No.5 of 2015 rendered the retrenchment a nullity.
Counsel for the applicants also contended, that, contrary to the finding a quo, the acceptance of their terminal benefits could not properly constitute a waiver of their right to challenge the termination process.
The contention was premised on two grounds:
(i) The first was that the termination was a nullity and could therefore not be waived.
(ii) The second was that at the time they accepted the terminal benefits, they were ignorant of its effect on their right to challenge the termination. They therefore argued that they lacked the requisite appreciation and concomitant intention to found waiver.
Counsel for the applicants submitted, that, the principle of waiver, articulated in Chidziva & Ors v Zimbabwe Iron and Steel Company Ltd 1997 (2) ZLR 368 (S)…, was no longer good law. This was because that decision predated the concept of social justice and equity embodied in section 2A of the Labour Act.
This concept was recognized in Stanbic Bank of Zimbabwe Ltd v Charamba 2006 (1) ZLR 96 (S); Madhatter Mining Company v Tapfuma SC51-14…,.; and Delta Beverages (Pvt) Ltd v Murandu SC38-15…,.
Per contra, counsel for the first respondent contended, that, the acceptance and consumption of the terminal packages constituted a waiver of their right to challenge the legality of their respective terminations.
THE LAW ON RETRENCHMENT
The Constitutional Court authoritatively laid down, inter alia, that the Labour Court's jurisdiction to confirm a labour officer's draft ruling, in respect of a dispute or unfair labour practice, which is a dispute of right, could only be invoked if the labour officer strictly complied with all the prescribed procedural steps and substantive requirements of sections 93(1)(3) and 95(5)(c) of the Labour Act in making the draft ruling.
This principle was derived from the ratio decidendi of Tsvangirai v Mugabe & Anor 2006 (1) ZLR 148 (S), which was that the action or application commencing proceedings must be in accordance with the procedure prescribed by law to bring the dispute before the appropriate court for it to exercise jurisdiction to hear and determine the matter.
At p27 MALABA CJ pertinently held that:
“This means that a matter that is not a product of compliance with the procedural and substantive requirements of these provisions would not fall within the class of matters over which the Labour Court would have jurisdiction in terms of section 93(5a) of the Act. It would not be a matter which would be subject of the procedure for bringing such matters to the court a quo, as prescribed under section 93(5a) of the Act. Bringing such a matter to the court a quo under the guise of invoking the procedure prescribed in the subsection would not validly institute proceedings in that court in terms of section 93(5a) of the Act. The court a quo would not have a valid matter over which to exercise jurisdiction.”
The jurisdiction of a labour officer to deal with a dispute or unfair labour practice, whether in respect of a dispute of interest or a dispute of right is anchored in section 93(1) of the Labour Act.
The dispute or unfair labour practice must have been properly referred to the labour officer.
The propriety is based on four jurisdictional factors identified as the existence of a dispute, emanating from an employment relationship, outside the aegis of an employment code (per section 105(5) and (6) of the Labour Act) and the jurisdiction of an employment council (that is before a Designated Agent in terms of section 63(3b) of the Labour Act) and timeous referral.
The Constitutional Court further held, that, conciliation is a compulsory statutory process of mediation that is separate and distinct from arbitration and adjudication.
At p23, the Constitutional Court poignantly stated that:
“Procedures such as the hearing of oral submissions or the production of written submissions by the parties, and the determination of matters in dispute, typical of the adjudication process, are alien to the conciliation process. During the conciliation process, the labour officer collects information and attempts to settle the dispute between the parties in a friendly manner. It is neither a trial nor a hearing.”
Conciliation therefore constitutes the first consensus-seeking step that is actively, and not passively, presided over by the labour officer but is driven by the disputants.
The proper way of conducting conciliation, which was approved by the Constitutional Court, generally involves the four stage approach that consists of;
(i) The introduction;
(ii) Story-telling;
(iii) Dispute analysis; and
(iv) Problem solving.
These stages were borrowed from the South African labour case of National Union of Metalworkers in SA & Ors v Cementation Africa Contracts (Pty) Ltd (1998) 19 ILJ 1208 (LC)…, (the NUMSA case) and the suggestions of various academic writers in the field such as GROGAN: Labour Litigation and Dispute Resolution 1st ed Juta…,.; BRAND et al Dispute Resolution 5ed Juta…,.; and DARCY du TOIT et al Labour Relations Law a Comprehensive Guide 6ed Lexis Nexis…,.
If the properly conducted conciliation fails to achieve a settlement within thirty (30) days, or any further extension agreed to by the parties, from the commencement of the attempt at settlement, the labour officer issues a Certificate of No Settlement.
The legal effect of such a certificate is that the dispute or unfair labour practice arising from a dispute of right, by operation of law, automatically and specifically proceeds to adjudication before the Labour Court in terms of section 93(3) as read with section 93(5) of the Labour Act and not to compulsory or voluntary arbitration.
Such an application is a sui generis application that is within the contemplation of section 89(1) of the Labour Act.
It is only those disputes that involve disputes of interest for parties engaged in an essential service that take the arbitral route.
At pp22 and 24 of Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20, it was held that the draft ruling is the exclusive domain of the labour officer that is prepared after issuing a Certificate of No Settlement.
It is based on the information collected and collated by the labour officer during the process of conciliation.
In either case, the draft ruling must then as “a matter of obligation” be subject to the provisions of subsections (5a) and (5b). The draft ruling invokes the application of sub-sections (5a) and (5b) of section 93 of the Labour Act.
It is a provisional ruling that bears no legal force nor is it capable of review or appeal by the parties to whom it relates.
It only derives its life force if it is confirmed by the Labour Court in the automatic application that is lodged by the labour officer to that court.
It was emphatically held, at p11, of Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 that “if a labour officer engages in anything that is not conciliation, it is a nullity.”
Confirmation was adjudged to be a hearing in which the Labour Court examines the correctness of the facts and the law relied upon by the labour officer. The end result being, that, the Labour Court may confirm, set aside or substitute the draft ruling.
It is required to make a correct determination based on its own facts and law.
My understanding of the exposition rendered on the nature of confirmation proceedings is that they constitute a re-hearing in the wider sense in which the Labour Court is not bound by the factual findings and legal expositions of the labour officer.
