This
is an application for leave to appeal to the Constitutional Court in
terms of Rule 32 of the Constitutional Court Rules, 2016 (“the
Rules”).
The
background to the matter is aptly captured in the Supreme Court
judgment which is the subject of the intended appeal. The applicants
were employed as Section Managers by the respondent at T.M.
Supermarket, Lobengula Street, in Bulawayo. In 2011, the applicants
became aware that other Section Managers at other branches were being
paid higher salaries than themselves. They wrote letters to the
Managing Director and the Human Resources Officer concerning the
issue but did not receive any response. In 2012, they lodged a
complaint of an unfair labour practice with a labour officer
emanating from the alleged salary differences. They sought back-pay
from January 2010 to September 2011 with interest. The respondent
explained that there was a performance-based salary structure in
place which explained the differences noted by the applicants. The
matter went through conciliation and a Certificate of No Settlement
was issued.
The
matter was referred to arbitration with one term of reference; being
whether or not the applicants were entitled to back-pay, and, if so,
the quantum
thereof. The arbitrator found the decision to put in place and
implement the performance based salary system to be in contravention
of the audi
alteram partem
rule, as the applicants had not been heard concerning the system. He
found, further, that the respondent had committed an unfair labour
practice by underpaying the applicants. Consequently, he ordered that
each of the applicants was entitled to back pay in the sum of
US$2,390=.
Aggrieved
by the decision of the arbitrator, the respondent appealed to the
Labour Court on two grounds;
(a)
The first was that the arbitrator had erred in finding that the
respondent had committed
an
unfair labour practice by implementing the performance-based salary
scheme without giving the applicants the opportunity to be heard.
(b)
The second ground of appeal was that the arbitrator exceeded the
terms of reference by ordering the respondent to normalise its
remuneration system.
The
Labour Court dismissed the appeal, finding that the respondent had
indeed committed an unfair labour practice by not apprising the
employees of the introduction of the performance based salary system.
It disposed of the second ground by finding that it was ill-judged,
since the respondent had already started a process of regularising
its remuneration system.
The
respondent sought and was granted leave to appeal to the Supreme
Court. It
filed
a notice of appeal containing
the
following grounds -
1.
The court a
quo
erred in law in effectively coming to the conclusion that it was
unlawful for the appellant (now the respondent)
to
pay its employees performance based salaries.
2.
Having come to the conclusion that what the respondents (now the
applicants)
were
being paid was in accordance with their contracts of employment, the
court a
quo
erred in law in holding as valid an award which entitled them to be
paid on a salary scale that was not contractual and which related to
different employees.
3.
The court a
quo
erred in failing to make a determination on whether the arbitrator
was entitled to stray from the terms of reference in the manner he
had done and whether he was at large to afford relief which had not
been motivated.
The
court a
quo
determined
the matter on the basis of two issues -
1.
Whether the court a
quo
erred in holding that it was unlawful for the appellant (now the
respondent)
to
pay its employees performance-based bonuses.
2.
Whether the court a
quo
erred by failing to make a determination on the question of whether
or not the arbitrator strayed from his terms of reference.
The
court a
quo
upheld the Labour Court's finding that the performance based salary
scheme put in place by the respondent was illegal because the
applicants had not been given an opportunity to be heard before its
implementation. It went on to find, however, that the Labour Court
had erred in ordering the enforcement of the decision of the
arbitrator on back-pay. The court a
quo
held that the Labour Court and the arbitrator were enforcing an
illegal payment.
On
the second ground of appeal, the court a
quo
held that the term of reference before the arbitrator was whether or
not the applicants were entitled to back pay. It held that the order
made by the arbitrator, for the regularisation of the respondent's
salary system, was without basis as it was outside the terms of
reference. The court a
quo
held that the Labour Court had not addressed its mind to the
resolution of the issue, as it was of the view that the matter had
been overtaken by events.
The
appeal was allowed with costs and the judgment of the Labour Court
set aside.
The
applicants seek leave to appeal against the judgment of the court a
quo.
The contention is that the court a
quo
delivered
a judgment which dealt with a performance based bonus scheme and not
the performance-based salary system which was the dispute between the
parties. The applicants alleged that the matter they brought before
the labour officer was premised on a complaint that the respondent
was paying a higher basic salary to other Section Managers to their
exclusion. They alleged that the court a
quo
dealt, instead, with the payment of a performance-based bonus. The
contention was that the court a
quo
infringed the rights of the applicants enshrined in section 56(1)
(equal protection of the law), section 65(1) (to be paid a fair and
reasonable wage) and section 65(4) (just, equitable and satisfactory
conditions of work) of the Constitution of Zimbabwe Amendment (No.20)
Act 2013 (“the Constitution”). The applicants contend that the
court a
quo
failed to appreciate the issue before it.
The
respondent opposed the application.
It
contended that there was no constitutional matter upon which the
intended appeal would be predicated. The respondent based the
contention on the reading of Rule 32 of the Rules
in
terms of which the application was purportedly brought. Counsel for
the respondent argued that the rule requires that there ought to have
been a constitutional matter adjudicated upon by the court a
quo
for an appeal to lie to the Court. Reliance was placed on the
authority of The
Cold Chain (Private) Limited t/a Sea Harvest v Robson Makoni
CC08-17
to highlight the fact that the Court has emphasised the need for an
appeal from a subordinate court to be predicated on a decision on a
constitutional issue.
A
person has no right of appeal against a decision of a subordinate
court on a non-constitutional issue. Section 169(1) of the
Constitution provides that the Supreme Court is the final court of
appeal for Zimbabwe except in matters over which the Constitutional
Court has jurisdiction.
In
Rushesha
& Ors v Dera & Ors
CC24-17…,
the Court emphasised the fact that there is no right of appeal from a
subordinate court on a non-constitutional matter. Gwaunza
jcc…,
said:
“Only
where the Supreme Court determines a constitutional issue, may one
appeal to this Court for a final determination. Because the Supreme
Court, in this matter, did not determine any constitutional issue,
the decision it rendered was final and not appealable. Since courts
are not expected to, and invariably do not, render judgments that
cannot be put into effect, which are, in other words, a brutum
fulmen,
a purported appeal against the effect of a judgment of the Supreme
Court on a non-constitutional issue is, in reality, an appeal
envisaged in section 169(1). That
is, a final judgment that is not appealable no matter how well
disguised any such purported appeal may be. It does not escape notice
that in seeking to have the Supreme Court judgment overturned under
the guise of an appeal to this Court, the appellants are, in effect,
attempting to revive, and reinstate, the judgment of the High Court,
which was in their favour.
What is sought would be both manifestly irregular, and bad at
law.”…,.
The
applicants approached the labour officer with a dispute relating to
salaries. The dispute arose from the allegation that other Section
Managers were being paid a higher salary than the applicants.
The
matter for determination by the court a
quo
related to the same subject of the dispute that had engaged the
parties in proceedings before the Labour Court. The dispute was about
the legality of the alleged performance based salary scheme, which
the applicants said was being beneficially applied to other Section
Managers to their exclusion. The subject of the dispute before the
subordinate court for determination was a labour matter, which called
for the interpretation and application of the principles of Labour
Law.
The
court a
quo
decided a labour matter. The non-constitutional issue did not become
a constitutional matter because the applicants made a decision on it
a matter of an application for leave to appeal to the Court.
No
statement setting out clearly and concisely the constitutional matter
raised in the decision of the court a
quo
was filed with the application, as required by Rule 32(3)(c) of the
Rules. The founding affidavit supporting the application did not
verify the cause of action as arising from a decision of the court a
quo
on a constitutional matter. The applicants could not have complied
with the requirements of the procedure of an application for leave to
appeal from a decision of the court a
quo
prescribed by the Rules, because the decision sought to be appealed
against was not on a constitutional matter.
The
inevitable effect of a finding of the fact that the court a
quo
did not decide a constitutional matter is that the applicants have
no
right of appeal to the Court against the decision of the court a
quo.
In
Nyamande
and Another v Zuva Petroleum
2015
(2) ZLR 351 (CC)…,
ziyambi
jcc
said:
“Having
considered the submissions by the parties, I agree with Mr Chagonda
that the applicants have not established any right to approach the
Constitutional Court by way of appeal. Section 167(5) relates to
rules of procedure regulating the manner of approach to this Court,
on appeal, from lower courts. It
does not confer a right to appeal to the Constitutional Court on a
litigant who has no right of appeal….,. Failing that, a right of
appeal could only arise where the Supreme Court makes a decision on a
constitutional matter….,.
Since
no constitutional issue was determined by the Supreme Court, no
appeal can lie against its decision….,.
It follows that the applicants have not established a right of appeal
to the Constitutional Court and any appeal filed in this matter by
the applicants is a nullity as it conflicts with the provisions of
section 169(1) of the Constitution.”…,.
An
application for leave to appeal to the Court against a decision of a
subordinate court on a non-constitutional issue would be seeking from
the Court relief, the granting of which would be a nullity for
violation of
section
167(1)(b), as read with section 169(1), of the Constitution.
DISPOSITION
The
application is dismissed with costs.
