The
respondent was employed by the applicant as Head Administration. As
part of his employment benefits he was allocated a motor vehicle for
his duties, namely, a Toyota Hilux registration number ABD 8617 (the
vehicle).
On
3 June 2011, the applicant terminated the respondent's contract of
employment following disciplinary proceedings in terms of the
National Code of Conduct. When the respondent was on suspension he
was allowed to use the vehicle. The respondent challenged the
dismissal by noting an appeal to the Labour Relations Office. The
matter is still pending.
The
applicant then instituted the present proceedings seeking to recover
the vehicle from the respondent. The basis for seeking such relief is
that the respondent does not have any lawful basis for holding on to
the applicant's vehicle. His entitlement to the vehicle, like any
other benefits, ceased as a consequence of the termination of his
employment. It was also averred that by holding onto the vehicle, the
respondent is contravening section 57 of the Road Traffic Act
[Chapter 13:11].
The
application is opposed mainly on three grounds.
(i)
The first ground is that this court has no jurisdiction to entertain
an application of this nature. The matter is pending before the
Labour Court and the applicant ought to have followed that route.
(ii)
The second ground is that the noting of an appeal suspends the
decision appealed against.
(iii)
The third ground is that he is entitled to continue to use the
vehicle as the terms of his suspension allowed him to use the vehicle
pending the determination of the matter.
JURISDICTION
It
was submitted on behalf of the applicant that the present claim is
based under the common law principle of rei vindicatio. There is no
provision, in terms of the Labour Court Act [Chapter 28:01] which
allows it to deal with such an issue.
It
was further submitted that the decisions in Zimtrade v Marlord Makaya
2005 (1) ZLR 427 (H); Medical Investments Limited v Rumbidzayi
Pedzisayi HH26-10; and DHL v Madzikanda HH51-10 were patently wrong
and that this court was at large to depart from them.
It
was contended that if there was a labour dispute between the parties,
but the relief being sought cannot be granted by the Labour Court, as
in the case of rei vindication, the High Court exercises
jurisdiction. This would constitute an answer to the position adopted
by MAKARAU JP in the three cases referred to above. The un-intended
consequence of the position in these three cases is that it leaves a
dispute without an adjudicating authority.
It
was further contended that when an employee is dismissed, the
employer-employee relationship ceases to exist. The relationship can
only be salvaged by a lawful order reinstating the employee. Where
there is no such relationship then the rules of Labour Law do not
apply. The parties will then have to be guided by the operation of
common law which is properly administered by courts of inherent
jurisdiction such as this court.
The
respondent contends that this court has no jurisdiction to entertain
this matter and relies on the authority of the three cases referred
to by the applicant.
It
is common cause that the respondent acquired or possessed the vehicle
by virtue of an employment contract. The contract was terminated. The
respondent is challenging the termination of the contract.
The
issue for me would be whether the issue of vindication of the vehicle
can be determined without directly dealing with the rights of the
parties on the issue of termination of the contract of employment.
The
answer, in my view, is to be found in DHL v Madzikanda HH51-10…,
where MAKARAU JP…, in reference to her other judgment in Zimtrade v
Marlord Makaya 2005 (1) ZLR 427 (H) stated:-
“In
that matter, which was unopposed, I declined jurisdiction. My
reasoning in that matter was, firstly, that the Labour Court has
exclusive jurisdiction in matters relating to suspensions from
employment and termination of employment. Secondly, I reasoned that
the possession of the employer's property by an employee, in terms
of the contract of employment, is so inter-dependently linked to the
contract that one cannot decide on one without deciding on the other.
In
the result, because the Labour Court has exclusive jurisdiction over
the one, it follows that it also has exclusive jurisdiction over the
other. The conditions of service of an employee are simply the terms
upon which that employee is employed and to try and separate the
contract from its terms upon which that employee is employed and to
try and separate the contract from its terms appears to me legally
untenable, and, in any event, highly untenable.”
I
associate myself fully with the above sentiments.
The
relief that the applicant seeks in this matter is premised on the
final outcome of the labour dispute. That dispute has not been
exhaustively and decisively determined by the appropriate court.
MAKARAU JP…, in DHL v Madzikanda HH51-10 dealt with the issue why
the Labour Court is the appropriate forum….,. She said:-
“Where,
however, a dispute can either found a cause of action at common law
or in terms of the Act, a case of apparent concurrent jurisdiction
between this court and the Labour Court appears to arise. I say
appears to arise because the apparent conflict can easily be resolved
by paying regard to the overall intention of the legislature in
creating the Labour Act.
In
my view, in such a case, the Labour Court's jurisdiction, being
special, must prevail. It would make a mockery of the clear intention
of the legislature to create a special court if the jurisdiction of
such a court could be defeated by the mere framing of disputes into
common law cause of action where the Act has made specific provisions
for the same. In my view, if the dispute is provided for in the Act,
the Labour Court has exclusive jurisdiction even if the dispute is
also resolvable at common law.”
I
will therefore find that this court has no jurisdiction to grant the
relief that the applicant seeks. I will adopt the procedure adopted
by MAKARAU JP…, by proceeding to determine the matter on the merits
on the assumption that I might have erred.
The
facts of this matter are almost on all fours with those in DHL v
Madzikanda HH51-10 where MAKARAU JP…, made a finding that the
status of the respondent in that matter had not been finally
determined as it was pending before the Labour Court and that the
respondent has successfully discharged the onus on him to prove the
right to possess the vehicle pending the determination of the appeal
that was pending before the Labour Court.
The
respondent, in casu, has discharged the onus on him to establish the
defence of claim of right. In effect, the applicant has not advanced
any arguments on that issue. If I had jurisdiction in this matter I
would have found for the respondent.
The
last issue is whether the noting of an appeal to the Labour Court
suspends the decision appealed against in view of the provision of
section 92E of the Labour Act [Chapter 28:01].
It
was contended, for the applicant, that an appeal in terms of section
92(E) of the Labour Act does not suspend the decision appealed
against. Any action taken after dismissal is valid even if the
dismissal is later overturned. The employer is at liberty to hire
another employee. That is why there is section 89(2)(c) of the Labour
Act which allows a court ordering re-instatement to specify an
alternative for damages in lieu of reinstatement.
That
an appeal filed in terms of section 92E of the Labour Act does not
suspend the decision appealed against is settled. The employee is
regarded as dismissed pending the determination of the appeal.
MAKARAU JP…, in DHL v Madzikanda HH51-10…, dealt with the issue
in this way;
“It
however appears to me that the provisions of section 92E of the Act
have no effect on the claim of right that the respondent is raising
at common law. Where the law regards the respondent as dismissed he
has never accepted that position and is challenging his purported
dismissal before the Labour Court. For as long as his challenge is
alive and not fully determined, his claim of right remains alive with
it. It is only when his challenge is invalidated at law that he loses
the basis for his claim of right. The claim that the respondent has
is not, in my view, dependent upon whether the law regards him as an
employee or not rather it is dependent upon whether or not the
dispute between the parties has been definitively resolved.”
In
casu, the dispute between the parties has not been exhaustively and
definitively determined. The respondent's defence of claim of right
is still alive. The applicant can only approach this court after the
appeal has been determined. Assuming I had jurisdiction, I would have
dismissed the application on the basis that it is premature.
In
view of the above findings I will make the following order:
1.
The application is dismissed.
2.
The applicant to pay the respondent's costs.
