Forum
shopping is what this matter is all about.
In
a spectacular comedy of errors that would have made the legendary
court jesters of the mediaval king's palace green with envy, the
applicant achieved the impressive feat over a period of about 3
years, to approach every conceivable tribunal or court that could
possibly deal with her labour dispute, managing to finally land on
the door step of this court virtually panting, breathless and
perspiring, from the long years of travail, with what she christened
a court application for a declarator that;
“1.
The portion of the penalty handed down by the Disciplinary Committee
of the respondent against the applicant on 27 October, 2009 which
reads:
'failure
to pay the money by the said date will lead to dismissal from council
employment;'
be
and is hereby declared to be null and void ab initio and is
accordingly set aside.
2.
The purported dismissal of the applicant from respondent's
employment be and is hereby declared null and void ab initio.
3.
The respondent is to pay to the applicant the salary and other
benefits due to her from the date of the purported dismissal, being
the 4th
of
December 2009 minus the sum of USD2,220= and any other deductions
required by law.
4.
That the respondent shall pay the costs of this application.”
The
applicant was a proud employee of the respondent of long standing,
she having dutifully served the respondent for a period of 17 years.
Her troubles started when, on 10 July 2009, as Provincial Manager of
the respondent, she was issued with US$3,120= travel and subsistence
allowance for trainers of peer educators and youth friendly service
providers in Karoi. Having paid part of the money to the intended
recipients accordingly, and being left with $2,220=, the applicant
committed the ultimate aberration of failing to surrender it to the
accountant as required, but, instead, proceeding with it to a Global
Fund workshop in Bulawayo.
Once
in the City of Kings, in Bulawayo, the applicant checked in a flat
belonging to her employer. On 21 July 2009 she left her room
accompanying a colleague leaving her handbag which had the princely
sum of $2,220= in it under a pillow in her room, only to find, upon
her return, that it had been stolen. She was subsequently charged
with “negligence of duty resulting in loss of $2,220=” for a
donor funded project, in breach of the employer's registered code
of conduct.
The
applicant duly appeared before a disciplinary committee which found
her guilty. The penalty imposed was that she makes restitution of the
$2,220= by 30 November 2009 plus a final written warning and failing
such restitution, that she be dismissed from employment. When she did
not restitute she was dismissed on 4 December 2009. The applicant
referred the matter to a Labour Officer for conciliation.
It
would be noted that, in terms of clause 5 of the employment code of
conduct of the respondent:
“5.
All appeals against the decisions of the designated officer(s) shall,
except in cases of dismissal, be made within three (3) days to the
Provincial Manager of the respective province or unit/Divisional Head
who shall determine as appropriate.
5.2.
In all cases of dismissal, the appeal shall be made to the Appeals
Committee as in 6 below.
5.3.
An employee who is not satisfied by the decision in an appeal in
terms of section 5.1 may appeal to the Appeals Committee.
5.4.
An employee who is not satisfied by the decision of the Appeals
Committee may appeal to the Labour Court within 30 days of receipt of
Appeals Committee's decision.
5.5.
An appeal shall not have the effect of suspending the decision
appealed against.”
The
provisions of the employment code did not deter the Labour Officer
from adjudicating over the dispute, and, on 15 December 2009, the
Labour Officer issued a Certificate of No Settlement. On 8 January
2010 the matter was referred to arbitration.
Not
to be outdone, the ubiquitous Matthew Tapiwa Magureyi, arbitrating
from Chinhoyi, made an award for the applicant's reinstatement
without loss of benefits on 15 March 2010.
This
propelled the respondent to lodge an appeal to the Labour Court
against the decision of the arbitrator.
Probably
realizing, rather late, that she had badly burnt her finger by
proceeding to a Labour Officer, and, later, an arbitrator, contrary
to the procedure laid down in the employment code of conduct, the
applicant was forced to capitulate.
Down
on her knees, she consented to an order of the Labour Court, issued
on 16 February 2011, setting aside the arbitration proceedings on the
pain of living to fight another day in terms of the appeal provisions
of the employer's code of conduct.
The
applicant returned to the Appeals Committee of the respondent
launching an appeal against her dismissal, albeit hopelessly out of
time, on 23 February 2011. At the same time, she sought the
condonation of the Appeals Committee for the one year and 4 months
delay in noting the appeal. The respondent politely advised the
applicant that her appeal was not only out of time but also that the
Appeals Committee did not have power to condone the late filing of an
appeal.
Demonstrating
an impressive 'never say die' attitude, the applicant approached
the Labour Court for review. She was, again, forced to withdraw that
Labour Court matter on 28 September 2011. Left without any sense of
solution, despondent, and probably despairing, the applicant filed
this application for a declaratory order that her dismissal from
employment is void ab initio.
Having
pain-stakingly traced the route navigated by the applicant to reach
this court, my attention is drawn to the sentiments of MAKARAU JP…,
which I share, in Mwanyisa v Jumbo and Ors HH03-10 where she said:
“Judges
are public servants, and, as such, they are not to complain about
what lands on their plates. I must, however, confess that the above
matter is a dog's breakfast. The parties have been to this court on
at least five occasions.”
In
this case, the applicant ignored clear provisions of a registered
employment code of conduct according her the remedy of an appeal from
a decision of the disciplinary committee, to the Appeals Committee of
the respondent. She elected to proceed, on a tryst with a labour
officer and an arbitrator who had absolutely nothing to do with the
matter. She clearly proceeded in the wrong forum, and, having
realized that she was shouting in the wilderness, the applicant swung
round and returned to the Appeals Committee
prostrating in adoration and seeking condonation which the committee
could not give. She tried her luck at the Labour Court, but, probably
realizing that her remedy in that court had been rendered
dysfunctional by prescription, she thought of coming to this court -
clearly as an afterthought.
It
is now fashionable for litigants who find themselves hamstrung in the
labour dispute resolution structures of our justice system, for one
reason or the other, to fall back on this court under the guise of
seeking a declarator.
While
it is true that this court has, at its discretion, authority and
power bestowed upon it by section 14 of the High Court Act, to
inquire into and determine any existing, future or contingent right
or obligation, and that an interested party can approach the court
for a declaration of its rights; Musara v Zinatha 1992 (1) ZLR 91
(H), there is no magic in the remedy of a declaratory order and this
court will not easily jump to exercise its discretion where clearly
the applicant had other remedies available to her which she spurned
out of tardiness or poor legal advice.
As
I have already stated, there is a procedure to be followed by an
aggrieved party which is provided for in the employment code of
conduct. We have a situation where the applicant was dismissed from
employment in terms of an employment code of conduct. It provided
relief to her which she chose not to pursue. She cannot then come
now, because she has lost that relief by prescription, and seek a
declaration of her rights which she could have enforced in a
competent tribunal.
I
agree with counsel for the respondent that the whole object of this
application is to allow the applicant to do what she failed to ask
the Appeals Committee to do by way of appeal. In the event that she
was not happy with the decision of the Appeals Committee she was at
liberty to approach the Labour Court.
Indeed,
the substance of this application has nothing to do with a
declarator. What she wants is to reverse
a dismissal from employment which she failed to contest using
internal remedies provided from in the code of conduct coupled with
an order for payment of all benefits she would have enjoyed. A court
of law should not be deceived by the form of the application, it will
put aside the veil and examine its true nature and substance: Kilburn
v Estate Kilburn 1931 AD 501…,.
To
the extent that the applicant was entitled to appeal all the way to
the Labour Court, it means that the substance of this application is,
in essence, a labour dispute disguised as an application for a
declarator.
Section
89(6) of the Labour Act [Chapter 28:01] has ousted the jurisdiction
of all other courts, in the first instance, to hear and determine any
application, appeal or matter falling under the jurisdiction of the
Labour Court.
The
present dispute clearly falls under that ouster provision as it
should be determined by the Labour Court. No amount of flummery with
the form of the application and the phrase “declaratory order”
will change the complexion of this matter in substance. It remains a
labour dispute which should be determined by the Labour Court.
The
legislature, in its wisdom, has seen it fit that such matters should
be reserved for the Labourt Court. Litigants who continue to ignore
that legislation, by approaching this court, are clearly trying to
defeat the intention of the legislature. It matters not that a
litigant comes to this court seeking a declaration of rights, if such
rights can and should be determined in the Labour Court, this court
will decline jurisdiction. One cannot fight against the future, for
the future, as pronounced by the legislature, is that such matters
should not be entertained by this court: Matongo v Midlands State
University HH174-13; Jambwa v Grain Marketing Board HH124-13.
I
am fortified in that view by the fact that the applicant has been
forum shopping for years now.
I
do not agree with counsel for the applicant that the penalty imposed
by the disciplinary committee in this matter is a glaring invalidity
that is staring the court in the face which cannot be ignored.
That
committee had authority to impose a penalty of dismissal. If the
applicant was dissatisfied she should have appealed but she chose to
waste time on other issues. This is a case where there must be
finality to litigation as this agony cannot be allowed to continue,
Ndebele v Ncube 1992 (1) ZLR 288 (S)…,.;
Stambolie v Commissioner of Police 1989 (3) ZLR 287; Saloojee &
Anor v Minister of Community Development 1965 (2) SA 135 (A) 141 C-E.
As
a matter of policy, it is undesirable that a single cause of action
should be allowed to give rise to endless actions. There must be
finality.
I
therefore come to the conclusion that the applicant has not made out
a good case for the relief sought. The application is accordingly
dismissed with costs.
