MAKONI
J:
On
19 June 2002, the applicants and the respondent entered written into
a retrenchment package agreement (agreement). The pertinent terms of
the agreement were as captured in the LC/H/70/2005 by Makamure
J where she stated the following:
“The
retrenchment undertakes to pay the employees who have been retrenched
the following retrenchment package.
(a)
Payment in lieu of notice;
(b)
Abolition of office – per staff rules;
(c)
Cash in lieu of leave;
(d)
Stabilization/gratutity-25 months gross salary times the number of
years served including fraction thereof;
(e)
Long service awards;
(f)
Relocation allowance - $10,000-00 across the board;
(g)
Medical aid support on current terms up to 31 December 2003, except
for those who get employment and have a medical aid cover;
(h)
Pension - in terms of pension regulations;
(i)
Licence fees to be paid as per the following categories:
Less
than 3 years - 1 year up to 31/12/03
3-10
years - 1 year up to 31/12/04
11-15
years - 1 year up to 31/12/5
16-20
years - 1 year up to 31/12/06
21-30
years - Life exemption
31
years + - Life exemption
(j)
Preferential recalls (temps/etc);
(k)
ZBC accommodation – up to 30 December 2002.”
Disputes
arose regarding the implementation of the the agreement. Among other
reasons, the respondent argued that payment of the pension could not
be constructed as part of the agreement. The parties took their
dispute for arbitration. The arbitrator found in favour of the
respondent and ordered that the applicants honours the agreement.
Aggrieved
by the decision, the respondent appealed to the Labour Court and the
matter was heard by
Makamure
J who upheld the appeal. She found that the respondent had entered
into the agreement freely and that it had chosen to be bound by the
terms of the agreement. She also found that the agreement was the
sole memorial of the parties intention and that there were no special
circumstances warranting interference with what the parties had
agreed.
The
respondent then appealed to the Supreme Court and that appeal is
still pending.
The
parties continued to engage each other through various
correspondence. In the engagements arose the issue whether the
retrenchment package had been paid in full or not. The respondent
argued that the applicant's benefits including pension had been
paid in full up to December 2003.
The
applicants then approached this court seeking a declaratur.
The
matter is opposed and the respondent took three points in limine
viz.
1.
Absence of jurisdiction on the part of this court.
2.
The matter is lis
alibi pendenis.
3.
The fact that the applicant sued a non-existing entity.
I
will first of all determine the points in
limine.
Jurisdiction
Mr
Uriri
submitted
that what is before the court that is a dispute of right as is
defined in terms of s2 of the Labour Act [Chapter
28:01]
(the Act). One must consider s8 of the Act which defines what an
unfair labour practice is. The dispute between the parties is
therefore a labour issue and can be resolved in terms of s94 of the
Act.
Mr
Kwaramba
submitted that the applicants are proceeding in terms of s14 of the
High Court Act [Chapter
7:06].
A
dispute arose between the parties and the applicant's seek a
declaratur. He further submitted that s14 of the High Court Act is
complementary to s89(2) of the Act.
He
submitted that the Labour Court is a creature of statute. Its powers
and functions are provided for in the Act and in exercising those
powers it cannot go beyond what the Act provides. He relied on the
authority of
NRZ
v Zimbabwe
Artisan Union & Ors
2005 (1) ZLR 341 (S).
The
issue is, looking at the dispute between the parties which is the
appropriate foraie the High Court or the Labour Court to deal with
the matter.
The
law is settled and the parties are agreed on the position of the law
regarding the granting of declaratur and the exclusivity of the
jurisdiction of the Labour Court.
In
the NRZ
supra
at p347A Ziyambi
JA (as she then was) had this to say:
“Thus,
before an application can be entertained by the Labour Court, it must
be satisfied that such an application is an application 'in terms
of this Act or any other enactment'.
This
necessarily means that the Act or any other enactment must
specifically provide for applications to the Labour court, of the
type that the applicant seeks to bring: see PTC
v Chizema
S-108-04.
In that case, it was pointed out that an application brought in terms
of s93(7) of the Act would correctly be termed an application 'in
terms of the Act'.
Thus,
the application and the remedies obtainable thereby must be
authorised in the Act or the enactment authorising the application to
the Labour Court.
Nowhere
in the Act is the power granted to the Labour Court to grant an order
of the nature sought by the respondents in the court a
quo,
nor have I been referred to any enactment authorizing the Labour to
grant such an order.
The
court, went further had earlier on p346G stated;
There
is, I think, judging from the case which have come before us, a
misconception generally held by the Labour Court, namely, that it is,
in terms of s89 of the Act, endowed with jurisdiction to entertain
all applications brought before it.”
The
same was restated in UZ-UCSF
Collaborative Research Programme in Women's Health
v Shamuyarira
2010
(1) ZLR 127 (S) at 130D respect of seeking a declaratur in the Labour
Court.
“So,
too, in this case, there is no provision in the Act (nor have I been
referred to any provision in any other enactment) authorizing the
Labour Court to issue the declaratory order sought by the respondent.
It is therefore my view that the Labour Court ought to have dismissed
the application for want of jurisdiction. Accordingly the appeal
succeeds on this point.”
The
converse to the above can be found in Tuso
v City
of Harare
2004 (1) ZLR 1 where it was held that all labour matters, unless
specifically excluded, must be dealt with by the Labour Court.
In
that case Bhunu
J (as he then was) gave an analogy which clearly sets out the
position regarding labour matters and the Labour Court powers when he
stated:
“To
draw an analogy, a labour dispute is essentially a civil dispute,
over which the magistrates court ordinarily has jurisdiction in terms
of its limited jurisdiction. A magistrate cannot arrogate to himself
jurisdiction under the Magistrate Court Act and not the Labour Act.
By
the same token the High Court exercises review powers which have been
expressly excluded under the pretext that it will be exercising its
general powers of review under the High court Act.”
The
next question would be what is the nature of the dispute between the
parties.
The
respondent contends that it is a dispute of right. Dispute of right
is defined in s(2) of the Act as follows:
“means
any dispute involving legal rights and obligations occasioned by an
actual or alleged unfair labour practice.”
What
constitutes an unfair labour practice is defined in s8 of the Act.
“An
employer …. Commits an unfair labour practice if, by act or
commission he …..
(a)…….
(b)…….
(c)…….
(d)……..
(e)
Fails to comply with or implement -
(i)
A collective bargaining agreement; or
(ii)………
(iii)
A decision or finding made under Part XIII; or
(iv)
Any determination or direction which is binding upon him in terms of
the Act.”
The
respondent contends that for the enforcement of such rights one looks
at s89(2) as read with s93(7)(ii) of the Act. It further contends
that s93(7)(ii) cross references itself with s89(2) with the result
that an application for the pronouncement of an order stemming from a
dispute of rights, is easily actionable. The respondent concluded by
saying the issue before the court can therefore be determined by the
Labour Court.
The
applicants contend that, although the dispute bears elements of a
labour dispute, the Labour Court cannot exercise jurisdiction over
matters not specifically provided for in the Act such as declaraturs.
This
contention by the applicants gives away the true nature of the
dispute between the parties. It is a labour dispute.
What
one needs to look at, in terms of s89(1) as read with s89(6) of the
Act is the nature of the application itself and not exclusively the
relief sought as seems to be suggested by the applicants.
I
would want to agree with the respondent that the dispute that is
between the parties is a dispute of right.
The
applicants are complaining about the respondent's failure to comply
with its obligation in that it failed to implement an agreement in
terms of a determination made by the Labour Court which is binding
upon it. This complaint fits squarely in the definition of an unfair
labour practice.
Such
a dispute is a dispute of right.
An
application can be founded for a pronouncement or enforcement of such
a right by reason of s89 and 93 of the Act.
It
would be contrary to the intention of the legislature to allow a
party whose case is plainly a dispute of right to circumvent the
exclusive jurisdiction of the Labour Court by labelling their order a
'declaratur' when in truth and substance it is not.
In
view of the above finding, I will uphold the point in
limine
and decline jurisdiction in this matter.
Having
made that finding it will not be necessary for me to deal with the
other points in
limine.
In
the result, I will make the following order:
(1)
The application is dismissed.
(2)
The applicants to pay the respondent's costs.
Mbizo,
Muchadehama & Makoni,
applicants legal practitioners
Mandizha
& Company,
respondent's legal practitioners
