MAKARAU
JA:
On
12 October 2015, the first respondent declined jurisdiction to
quantify the appellant's retrenchment package upon the termination
of his employment with the second respondent. Aggrieved by the
decision, the appellant brought a review application before the
Labour Court, seeking among other relief, to have the first
respondent's decision set aside. He was unsuccessful. This is an
appeal against the entire judgment of the Labour Court handed down on
4 November 2016, dismissing with costs, the application for review.
Background
Facts
The
appellant was employed by the second respondent as General Manager
(Risk). By letter dated 6 March 2014, the second respondent advised
the appellant of its intention to terminate his services by way of
retrenchment. The termination of services was to be effective on 31
March 2014.
A
dispute arose between the parties as to the package payable to the
appellant upon retrenchment. On 3 April 2014, the second respondent
referred the dispute to the first respondent.
The
first respondent heard the referral on 26 June 2014. It declined to
determine the matter which it referred back to the employer, the
second respondent. The first respondent's reasons for declining
jurisdiction and referring the dispute back to the employer are not
on record. They are not necessary for the determination of this
appeal.
Subsequently,
the second respondent issued the appellant with a “notice to
retrench” after reinstating his salary in full. The dispute
relating to the package payable to the appellant upon retrenchment
remained unresolved and was referred back to the first respondent.
Through a process that has not been fully explained in the papers
filed of record, the matter was escalated to and was resolved by the
Minister of Public Service, Labour and Social Welfare who, on 2 March
2015, authorised the second respondent to retrench the appellant. It
is common cause that before approving the retrenchment of the
appellant, the Minister received recommendations from the first
respondent.
It
is further common cause that the appellant's retrenchment was
approved on condition the second respondent paid a gratuity
equivalent to one month's salary for every year of service, a
stabilisation allowance equivalent to two month's salary and a
severance payment equivalent to 13,5 month's salary.
In
implementing the retrenchment, the second respondent used the
appellant's pensionable salary to quantify the total package
payable. This dissatisfied the appellant who, contended that the
second respondent ought to have used his total guaranteed monthly
salary as the basis of the quantification. He referred the matter
back to the first respondent, seeking determination of the dispute as
to what would constitute an accurate computation of his package. This
referral would constitute the third referral of the dispute to the
first respondent.
The
first respondent did not set the matter down for hearing. In a letter
addressed to the parties and dated 12 October 2015, it declined
jurisdiction in the following terms:
“Kindly
be advised that the Retrenchment Board has no jurisdiction over
disputes arising from terms and conditions of employment.
Please
refer the matter to a labour officer as per section 93 of the Labour
Act Chapter
28.01.”
Contending
that the first respondent had acted irregularly in abdication of its
statutory duty by declining jurisdiction in the matter, the appellant
filed an application for review in the court a
quo.
As indicated above, the court a
quo
dismissed the application with an appropriate order of costs.
The
Proceedings a
quo
In
his application for review the appellant alleged that the first
respondent had acted irregularly in inter
alia
declining jurisdiction in the matter when the statute setting it up
empowered it to act as requested. It was his argument that the issue
of the correct formula to be used in computing his retrenchment
package had remained undetermined notwithstanding that it was one of
the deadlocked positions that had been referred to the first
respondent in March 2015 before the Minister approved the appellant's
retrenchment. It was his further contention that the first respondent
had irregularly and incompetently directed that the dispute be
referred to a labour officer, who in the circumstances of the matter,
had no jurisdiction over the retrenchment of the appellant.
The
first respondent did not oppose the application.
The
second respondent did.
It
contended that the first respondent was correct in declining
jurisdiction in the matter. In the main and against the main thrust
of the appellant's contentions, it contended that once the first
respondent had made its recommendations to the Minister on the
retrenchment package, it became functus,
having discharged its statutory duties. It further argued that the
decision to retrench was ultimately that of the Minister and if the
appellant was unhappy with the implementation of the Minister's
decision, his relief lay in appealing against or bringing that
decision on review.
After
finding that the grievance by the appellant was against the Minister
who made the final computation of the retrenchment package, the court
dismissed the application for review with an appropriate order of
costs.
Aggrieved
by that decision the appellant noted this appeal.
The
Appeal
The
appellant raised two grounds of appeal as follows:
1.
The court a
quo
grossly erred and misdirected itself on the facts and the law by
failing to determine whether or not the first respondent's decision
to decline jurisdiction was proper.
2.
The court a
quo
erred on a point of law and further grossly erred and misdirected
itself on the facts which error amounts to an error of law by
dismissing the appellant's application for review inter alia on the
following grounds:
“(a)
That the Minister had made '… the final computation of the
package…' on the recommendations of the first respondent, hence
it was the Minister's decision which should have been challenged;
(b)
That the decision which the applicant is not happy with is that of
the Minister when it is common cause that the appellant was not happy
with the second respondent's unilateral interpretation of the word
'salary' and upon representations thereto, the first respondent
declined jurisdiction.”
The
issue that arises in this appeal is therefore whether the court a
quo
erred in failing to determine the issue that was before it or
alternatively, in determining the issue after misdirecting itself on
the facts.
The
Law
It
is a settled position at law that failure to determine a material
issue that is before the court is a gross irregularity that vitiates
the decision made.
The
broad position of the law was recognised by UCHENA
JA
in
Nzara and Ors v Kashumba and Ors SC18/18
where he had this to say:
“A
court is not entitled to determine a dispute placed before it, wholly
based on its own discretion, which is not supported by the issues and
facts of the case. It is required to apply the law to the facts and
issues placed before it by the parties.”
Thus
the general and trite position of the law that requires no further
debate is that a court cannot go on a frolic of its own and determine
the dispute before it by raising its own issues or facts and
resolving the dispute on such.
Looking
at the basic role of the court from a slightly different angle,
GOWORA
JA
in PG
Industries v Bvekerwa
SC 53/16 observed that:
“The
position is settled that where there is a dispute on a question, be
it a question of fact or point of law, there must be a judicial
decision on the issue in dispute. The failure to resolve the dispute
vitiates the order given at the end of the proceedings.”
Whilst
GOWORA
JA
in
PG Industries v Bvekerwa
(supra)
was dealing with a case where the lower court had failed to deal with
a preliminary issue that arose in the matter before it, the position
still holds that even where there is a sole issue to be determined
and the court does not determine that issue but focuses on irrelevant
or incorrect issues, the failure to deal with the correct issue is
fatal to the proceedings.
There
are a number of other legal principles that converge to discourage a
court from going on a frolic of its own and determining a matter on
an issue that is not raised by the parties in their papers and
arguments. These include the duty of the court, where it is of the
view that a certain factual or legal position is dispositive of the
matter before it, to invite the parties to address it on the point
before resolving the dispute wholly or partly on the point. A
detailed discussion of this and other principles is not necessary in
this appeal as there was no dispute as to the applicable law.
Analysis
As
stated above, the issue before the court was whether the refusal by
the first respondent to exercise jurisdiction in the third referral
of the dispute to it by the appellant was irregularly made.
A
reading of the judgment a
quo
indicates that the court appears to have laboured under the erroneous
understanding that the review before it related to the second
referral of the matter to the first respondent, which led to the
Minister of Public Service, Labour and Social Welfare Minister
stepping in and approving the retrenchment of the appellant on 2
March 2015. This appears from the passage in the judgment a
quo
containing the ratio of the decision, which reads:
“Page
154-155 of the record shows that the Minister eventually made a
decision after the Retrenchment Board recommendation. Section 12(8)
of the Labour Act states that even where the Board fails to make a
recommendation, the Minister can still get relevant documentation and
still make a decision. In this case it is the Minister who made the
decision after recommendations from the Board. It is this court's
view that the grievance in this case is against the Minister who made
the final computation of the package…. The
Minister made the decision and thus the complaint should be raised
against the Minister and not the Board which merely made
recommendations.” (The
underlining is mine).
With
respect, the decision of the first respondent that was under the
spotlight was not on the second referral of the matter in March 2014
but on the third referral, which decision was communicated to the
parties on 12 October 2015.
I
note that the court a
quo
does not at any stage advert to this decision in its judgment.
Having
made this first error, the court a
quo
fell into the second and more serious error which vitiates its
decision. It formulated its own issues for determination.
Firstly,
it formed the view that the issue before it was “the computation of
the retrenchment package” due to the appellant. Whilst the
computation of the package was at the centre of the dispute between
the parties, it was not the immediate issue that fell to be
determined in the review application a
quo.
As indicated above, the immediate issue to be determined was whether
the second denial of jurisdiction by the first respondent over the
matter was properly arrived at. Secondly, and as building up to its
ratio,
the court a
quo
raised and determined an issue that was not an issue for the parties.
It made a finding that the final package had been computed by the
Minister. This finding was against the common position of both
parties. It was common cause that the computation of the package had
been done by the second respondent and not by the Minister. Therefore
the identity of who made the final computation of the appellant's
retirement package was not in issue and was therefore not a point on
which a finding by the court was necessary.
I
further note in passing that had the court a
quo
canvassed with counsel its view of the turning point in the
application for review and the facts which it thought were in dispute
between the parties, an eminently prudent practice for any court,
this appeal may have been obviated. However, this was not so.
I
find merit in the appellant's grounds of appeal. The court a
quo
failed to determine the issue that was before it. It raised its own
and gravely misconstrued the facts giving rise to the dispute in
resolving the issue it had raised for itself.
Disposition
Having
fallen into error in not only formulating the incorrect issue for its
determination but in basing its decision on incorrect facts, the
decision of the court a
quo
cannot stand. It must be set aside and the matter remitted for fresh
determination.
Costs
of this appeal will follow the cause. I see no reason for departing
from this general position in this appeal.
In
the result I make the following order:
1.
The appeal is allowed with costs.
2.
The decision of the court a
quo
is set aside.
3.
The matter is remitted to the court a
quo
for determination de
novo.
GOWORA
JA: I
agree
HLATSHWAYO
JA:
I agree
Wintertons,
2nd
respondent's legal practitioners
