At
the commencement of the trial in this matter, I mero motu raised the
issue of whether or not the jurisdiction of this court has not been
ousted by the provisions of section 89(6) of the Labour Act [Chapter
28:01] (“the Act”) in matters brought before me for
determination.
While
this court has inherent jurisdiction and may do anything which the
law does not forbid, the general fundamental principle of inherent
jurisdiction is subject to particular derogation: HERBSTEIN and Van
WINSEN, The Civil Practice of the Superior Courts in South Africa,
3rd
ed, Juta & Co Ltd…,.
This
court cannot exercise jurisdiction where such jurisdiction is
specifically ousted by statute….,.
The
plaintiff was employed by the defendant as a Director of the Graduate
School of Business Leadership, but, following disciplinary
proceedings conducted in terms of the University's Code of Conduct
he was dismissed from employment. He appealed to the Labour Court
against the dismissal, but, in a judgment handed down on 20 June
2011, the Labour Court dismissed the appeal.
The
plaintiff then instituted summons action in this court against the
defendant for payment of a total of US$120,643=28 broken down as
$19,407=70 as net salary; $9,850=27 cash in lieu of ordinary leave;
$42,531=21 cash in lieu of contract leave; and $48,854=10 cash in
lieu of sabbatical leave.
In
response to my query on jurisdiction, counsel for the plaintiff
submitted something to the effect that the plaintiff was not bringing
these proceedings to this court as a court of first instance but as a
court reposed with inherent jurisdiction to determine matters which
should have been determined by the Labour Court but which that court
omitted to deal with. He could not say, assuming the matter was not
coming to me as a court of first instance, in what form the matter
had come especially in view of the fact that it was instituted by way
of summons commencing action.
Counsel
for the plaintiff submitted that the plaintiff had exhausted domestic
remedies available to him in terms of the Code of Conduct and the
Labour Act and was therefore entitled to make an approach to this
court for quantification of his terminal benefits, which
quantification is not provided for in the Labour Act.
He
contradicted himself in submitting that when the Labour Court upheld
the plaintiff's dismissal, it was obliged, in terms of section
89(2)(c) of the Labour Act, to make a finding in respect of the
issues that have been placed before me, but the jurisdiction of the
Labour Court, as set out in section 89(1), does not include the
quantification of terminal benefits.
According
to counsel for the plaintiff, where the Labour Court has failed to
determine terminal benefits due to an employee, such employee is at
liberty to approach this court seeking quantification because the
Labour Court would be functus officio, and, therefore, unable to have
a second bite at the cherry as it were.
The
submissions made on behalf of the plaintiff regarding the existence
or otherwise of jurisdiction are mind-boggling to say the least. The
strain in one's mind becomes hazardous when the plaintiff's
counsel, by the same breath, argues that, procedurally, the Labour
Court is the ultimate court where the issues forming the subject of
this dispute should be determined. It becomes extremely impossible to
understand how the plaintiff could insist that this court should
exercise jurisdiction.
Counsel
for the defendant submitted that in order to arrive at a decision as
to whether the amounts claimed by the plaintiff in respect of net
salary and cash in lieu of ordinary leave this court has to interpret
the specific provisions of the parties' contact of employment. In
order to quantify what the plaintiff is claiming as cash in lieu of
contract and sabbatical leave this court must engage in the
interpretation of the “Midlands State University: Terms and
Conditions of Service”. For those reasons, the dispute between the
parties is a labour dispute where the Labour Court enjoys exclusive
jurisdiction.
Counsel
for the defendant made reference to section 13(1) of the Labour Act
which deals with wages and benefits upon termination to illustrate
the point that this is a labour dispute. It provides:-
“13
Wages and benefits upon termination of employment
(1)
Subject to this Act or any regulations made in terms of this Act,
whether any person -
(a)
Is dismissed from employment or his employment is otherwise
terminated; or
(b)
Resigns from his employment; or
(c)
Is incapacitated from performing his work; or
(d)
Dies;
he
or his estate, as the case may be, shall be entitled to wages and
benefits due to him up to the time of such dismissal, termination,
resignation, incapacity or death, as the case may be, including
benefits in respect to any outstanding vacation and notice period,
medical aid, social security and any pension and the employer
concerned shall pay such entitlements to such person or his estate,
as the case may be, as soon as reasonably practicable after such
event, and failure to do so shall constitute an unfair labour
practice.”
It
is therefore not in doubt that payment of wages and benefits, upon
termination of an employment contract, is provided for in the Labour
Act. Wages and benefits are entitlements of an employee in terms of
the Labour Act.
That
the Labour Court is a creature of statute constituted as a special
court, in terms of section 84 of the Labour Act, to adjudicate over
labour relations, is beyond doubt. Its powers and functions must be
exercised in accordance with the four corners of the statute.
Section
89(1) of the
Labour Act goes on to state:-
“The
Labour Court shall exercise the following functions:-
(a)
Hearing and determining applications and appeals in terms of this
Act; and
(b)
Hearing and determining matters referred to it by the Minister in
terms of this Act; 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
subs (6) of section ninety-eight to hear and determine an
application;
(d1)
Exercise the same powers of review as would be exercisable by the
High Court in respect of labour matters;
(e)
Doing such other things as may be assigned to it in terms of this Act
or any other enactment.”
Subsection
(2)(c) of section 89 gives the Labour Court the power, in the
exercise of its functions, to order back pay and compensation of an
employee in the event of an unfair labour practice among other
powers. It is instructive therefore to make reference to section
89(6) of the Labour Act which provides:
“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)”.
This
court has, in a number of cases, interpreted that ouster provision to
mean that the Labour Court has jurisdiction in all matters where the
cause of action and remedy for that are provided for in the Labour
Act; Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H)…,.;
DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H)…,.;
Tuso v City of Harare 2004 (1) ZLR (H); Moyo v Gwindingwi N.O. &
Anor HB168-11…,.; Jambwa v GMB HH124-13…,.
I
am in agreement with the postulation of MAKARAU JP…, in Medical
Investments Ltd v Pedzisai 2010 (1) ZLR 111 (H)…, that:
“In
interpreting these two sections of the Act (i.e section 89(1) and
section 89(6)), this court has, in the authorities I have cited
above, held that the Labour Court has exclusive jurisdiction in all
applications and matters that are not only defined but are
determinable in terms of the Act. In other words, the Labour Court
has jurisdiction in all matters where the cause of action and the
remedy for that cause of action are all provided for in the Act.”
I
have cited the provisions of section 13 of the Labour Act which
entitle an employee to wages and benefits upon termination of the
employment contract. In the event of a breach of those provisions the
employee has remedies, including criminal prosecution against the
employer. The employee may also bring an action in the Labour Court
which, in terms of section 89(1), has power to hear and determine any
application in terms of the Labour Act. In terms of section 89(2)(c)
it can also make an order for back pay and other damages to be
awarded to an employee.
Quite
how these changes in the law to provide for the ouster of the
jurisdiction of any other court, including this court, in those
matters which fall under the purview of the Labour Court escaped the
gaze of the plaintiff and his counsel is not easy to understand. What
is certain, however, is that this court does not have jurisdiction to
determine a dispute involving payment of wages and cash in lieu of
any form of leave which are clearly provided for in the Labour Act,
and, as such, should be determined by the Labour Court.
That
is the present and indeed the future.
For
counsel for the plaintiff to submit that I should exercise
jurisdiction against this background is untenable. As they say; “You
cannot fight against the future.”
I
therefore decline jurisdiction as no doubt the plaintiff has taken a
wrong turn in making an approach to this court when he should have
had his matter determined by the Labour Court. After all, that court
enjoys exclusivity.
In
the result, the plaintiff's claim is hereby dismissed with costs.
