The
defendant was employed by the plaintiff as a driver attached to the
Advisor to the Governor. He was issued with a Toyota Vigo motor
vehicle registration number ABD7870 belonging to the employer for use
in the discharge of his duties. He was retrenched from employment in
January 2011 in terms of an approved retrenchment package which he
signed in terms of which he is entitled to be paid a net sum of
$19,312=80.
The
plaintiff has sued the defendant seeking an order directing him to
return the Toyota Vigo motor vehicle he is holding on to and damages
for unlawful use of the said vehicle.
He
initially took a point in limine that the dispute involving the motor
vehicle is a labour one in which this court has no jurisdiction.
Counsel for the defendant abandoned that point in limine, correctly
in my view, on the basis that it was not well taken given that the
plaintiff's cause of action is the actio rei vindicatio, a purely
civil remedy in which this court's jurisdiction has not been ousted
by section 89(6) of the Labour Act [Chapter 28:01].
The
defendant has counter claimed seeking payment of $19,312=80 being
unpaid retrenchment package and delivery of the registration book of
the motor vehicle he claims is part of his retrenchment package.
The
plaintiff objected to the defendant's counter-claim on the basis
that it is, in essence, a labour dispute which should be determined
by the Labour Court enjoying exclusive jurisdiction by virtue of the
ouster provision contained in section 89(6) of the Labour Act.
Counsel for the plaintiff submitted that as the defendant's claim
is for payment of a retrenchment package, which is provided for in
section 13(1)(b) and section 13(2) of the Labour Act [Chapter 28:01],
this court's jurisdiction has been ousted by section 89(6). It is
the Labour Court which enjoys jurisdiction exclusively.
Counsel
for the defendant submitted that this court should exercise
jurisdiction because in the counterclaim the defendant is seeking to
enforce a civil debt. The fact that the debt arose out of an
employment relationship is irrelevant. He maintained that the Labour
Court has no jurisdiction to hear and determine civil disputes, the
disposition of which does not involve the application of Employment
Law expressly provided for by statute. It was strongly argued, on
behalf of the defendant, that the right of an individual to approach
this court seeking relief other than that specifically set out in the
Labour Act remains as section 89(6) does not take away the right for
civil relief premised on purely Civil Law principles.
Section
89(6) of the Labour Act [Chapter 28:01] 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 subsection (1).”
Section
89(1) of the Labour Act [Chapter 28:01] states that:
“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 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.”
The
procedure for retrenchment of employees is provided for in section
12C of the Labour Act. Section 13 provides:
“Wages
and benefits upon termination of employment
(1)
Subject to this Act or any regulations made in terms of this Act,
where 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 of 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.
(1a)
Wages and benefits payable to any person or to his or her estate in
terms of this section shall not form part of or be construed as a
retrenchment package which an employee is entitled to where his or
her employment has been terminated as a result of retrenchment in
terms of section 12C.
(2)
Any employer who, without the Minister's permission, withholds or
unreasonably delays the payment of any wages or benefits owed in
terms of subsection (1) shall be guilty of an offence and liable to a
fine not exceeding level seven or to imprisonment for a period not
exceeding two years or both such imprisonment.”
In
his supplementary heads of argument, counsel for the plaintiff
conceded that section 13 of the Labour Act specifically excludes
retrenchment packages which is included as an unfair labour practice
by virtue of the all-embracing section
8(e)(iv) of the Labour Act, which provides that an employer commits
an unfair labour practice if he fails to comply with a determination
or direction which is binding upon him in terms of the Labour Act.
It
is clear that a retrenchment package is provided for in the Labour
Act. It is an entitlement of an employee whose employment is
terminated in terms of section 12C of the Labour Act. Where an
employer does not pay a retrenchment package or delays making
payment, an employee has a remedy - including criminal sanction.
Indeed, failure to pay constitutes an unfair labour practice. There
are remedies available for unfair labour practices.
I
find myself having to repeat what was stated in Matongo v Midlands
State University HH174-13…, that:
“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 Act;
Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H) 114 C; DHL
International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H) 204 A; Tuso
v City of Harare 2004 (1) ZLR 1 (H); Moyo v Gwindingwi N.O. &
Anor HB168-11 at pp 5-6 (now reported in 2011 (2) ZLR 368); Jambwa v
GMB HH124-13 at p4;
I
am in agreement with the postulation of MAKARAU JP (as she then was)
in Medical Investment Ltd v Pedzisayi (supra) at 114 C 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 this Act.'
I
have cited the provisions of section 13 of the 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.”
In
Chiwundo v Zimbabwe National Family Planning Council HH212-13…, I
made the point:
“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 [Cap 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 the ouster provisions as it should be determined by the Labour
Court.”
See
also William Bain & Company Holdings (Pvt) Ltd v Nyamukunda
HH309-13.
In
my view, the defendant's cause of action, being the non-payment of
a retrenchment package, is found in the Labour Act. His remedy is
also located in that Act. For that reason, the jurisdiction of this
court has been ousted by section 89(6) of the Labour Act. It matters
not that the package was agreed between the parties. In fact, it was
approved by the relevant authorities, namely, the Works Council and
the Minister of Public Service, Labour and Social Welfare. This court
will still not exercise jurisdiction.
1.
The plaintiff's point in limine is hereby upheld.
2.
Jurisdiction in respect of the defendant's counter claim is
declined.
3.
The matter shall proceed to trial in respect of the plaintiff's
claim.
4.
The issue of costs is reserved until the end of trial.
