GARWE
JA
[1]
This
is an appeal against the judgment of the Labour Court confirming with
an amendment a ruling by a labour officer that the appellant was
guilty of an unfair labour practice and that the appellant pays to
each of the respondents arrear compensation due to them for the
period March 2011 to September 2015. The appellant seeks an order
setting aside the confirmation and, in its place, another order
dismissing the application for confirmation with no order as to
costs.
[2]
Having gone through the papers filed in this matter and after hearing
counsel, I am not persuaded that the Labour Court was, except for
part of its order, wrong in confirming the ruling by the labour
officer.
BACKGROUND
FACTS
[3]
The first respondent herein Fungai George Mutasa, is a labour officer
to whom an allegation of unfair labour practice was referred by the
second to the eleventh respondents (“the respondents”). He
unsuccessfully attempted to settle the matter by conciliation
following which he then heard the parties in order to come up with a
draft ruling in terms of s93(5)(c) of the Labour Act, [Chapter
28:01]
(“the
Act”).
[4]
The respondents are employed by the appellant and fall in what the
appellant calls the E Band employment grade. The appellant is a
wholly-owned subsidiary of Tongaat Hullett, a South African company.
In addition to the benefits they enjoyed in Zimbabwe in terms of
their conditions of employment commensurate with their grade, the
respondents also enjoyed membership of the Tongaat Hullett Pension
Fund, a South African registered pension fund as well as the
Discovery Essential Saver Plan, which enabled them to access medical
services in South Africa. On 21 February 2011, the respondents were
advised of the intention to terminate their entitlement to both the
Pension Fund and the Discovery Essential Saver Plan with effect from
28 February 2011. It was indicated in that communication that the
respondents would each be paid accrued benefits in cash or
alternatively such benefits would be transferred to a retirement
annuity or pension preservation fund held in each employees name with
a registered entity of the employee's choice in South Africa. It
was further indicated that the cost related to the current monthly
fund contributions would be incorporated into each employee's
monthly United State Dollar package in Zimbabwe with effect from 1
March 2011. As regards the Discovery Essential Saver Plan,
compensation was to be paid by incorporating the monthly member
contributions, which translated to a hundred per cent contribution by
Tongaat Hullett, into each employee's monthly United States Dollar
package in Zimbabwe.
[5]
The exchange of correspondence between the parties reveals that the
respondents made several follow-ups to have the compensation paid and
the contributions incorporated into their cash packages. This was to
no avail. The papers further show that the appellant demanded that
the respondents move from the Triangle Senior Staff Pension Fund
(TSSPF) to the Money Plan Pension Scheme to enable these benefits to
be processed. Owing to the stalemate, the respondents approached the
High Court and, in an order dated 26 February 2015, the court
determined that the TSSPF remained valid and binding and that there
was no obligation on the respondents to migrate to the Money Plan.
The court consequently ordered the appellant to commence making its
contributions and to actuate the TSSPF. Appellant was further ordered
to pay the costs of the application. That order remains extant as it
was not appealed against. Notwithstanding that order, the appellant
did not pay compensation or incorporate the monthly contributions
into the employee's monthly United States Dollar package.
[6]
In their statement of claim before the labour officer, the
respondents averred that, in addition to benefits accruing in
Zimbabwe, their conditions of service also provided for contractual
entitlements to the Tongaat Hullett Pension Fund and the Discovery
Essential Saver Plan, both of which were operational in South Africa.
They further averred that it was the appellant that undertook to pay
to each employee the accrued fund benefits or to transfer such fund
to a retirement pension preservation fund and to incorporate the
monthly fund contributions into the cash packages in Zimbabwe. They
averred further that the pension fund and Saver Plan were open to all
employees in the E Band, regardless of the nature of one's pension
in Zimbabwe. The decision not to pay the respondents was a punitive
measure because the respondents had dared to assert their rights to
membership of the TSSPF in the High Court.
[7]
The respondents further alleged that the appellant had accepted its
obligation to compensate the respondents when it communicated its
decision to terminate the two benefits. The appellant had then
proceeded to pay those employees who had agreed to join the Money
Plan Pension Scheme in Zimbabwe but had then withheld compensation to
the respondents. They therefore submitted that, by withholding the
compensation, the appellant and its directors were guilty of an
unfair labour practice. They therefore asked for a ruling directing
the appellant to cease the unfair labour practice and to pay the
arrear compensation. They further averred that the amounts should be
paid “without any additional tax losses” by them.
[8]
In its response to the complaint, the appellant stated that the
benefits which formed the subject of the matter were availed as a
measure to cushion the employees from the harsh economic situation
obtaining in Zimbabwe at the time and that these benefits were being
administered by Tongaat Hullett, a South African company and the
holding company of the appellant. The benefits did not become vested
in the contracts of employment of the respondents and remained
discretionary on the part of the holding company. Therefore, so the
appellant argued, whatever obligations the holding company created
pursuant to the grant of these benefits do not bind the appellant.
The benefits were paid and administered by Tongaat Hullett and,
consequently, the appellant, as a subsidiary, had no obligation to
actuate those benefits. The appellant further submitted that any
claims that had arisen more than two years before the hearing of the
matter were prescribed in terms of s94 of the Act. In other words, if
it was found that an unfair labour practice resulting in the
underpayment of the respondents had taken place, then the monthly
underpayments would constitute separate causes of claim.
[9]
In his analysis of the evidence and submissions made on behalf of the
parties, the labour officer found that the letter of 21 February 2011
unequivocally placed an obligation on the appellant to compensate the
respondents and to incorporate the monthly fund contributions and
member contributions into the respondents' United States Dollar
cash package in Zimbabwe with effect from 1 March 2011. He further
found that the fact that the pension fund was administered by another
agency other than the appellant itself did not mean the employees
were employed by that agency. He therefore concluded that the payment
of compensation of accrued benefits was a right. This was more so
given the fact that the other employees in the same grade as the
respondents who had migrated to the Triangle Money Plan have accessed
their pension fund contributions and have had their Saver Plan
incorporated into their monthly cash package in Zimbabwe. On the
question of prescription, he found that, as the parties had been
communicating over the issue, the matter was of a continuous nature
and therefore the claim had not become time-barred. Lastly, he found
that when the appellant's managing director wrote to the
respondents, at no stage did he indicate that he was not writing on
behalf of the appellant and that he was doing so on behalf of the
holding company. Consequently he concluded that, by withholding the
benefits, the appellant was guilty of an unfair labour practice. He
therefore ordered that the appellant cease such unfair labour
practice and pay individual arrear compensation to each of the
respondents.
PROCEEDINGS
BEFORE THE LABOUR COURT
[10]
Having made the above draft ruling, the labour officer referred the
same to the Labour Court for confirmation in terms of s93(5)(a) of
the Act. In its submissions before the Labour Court the appellant
argued that the labour officer had grossly erred in finding that the
benefits, the subject of this matter, had become vested in the
contracts of employment entered into by the respondents. The benefits
remained discretionary on the part of Tongaat Hullett. It further
argued that whatever obligations Tongaat Hullett may have created
were not binding on the appellant, a mere subsidiary. Lastly, the
appellant submitted that the labour officer had misdirected himself
in not finding that some of the claims by the respondents had
prescribed. Having submitted their complaint to the arbitrator in
September 2015, the respondents would only have succeeded on those
claims that had arisen after September 2013, i.e. within the period
of two years from the date when the unfair labour practice or dispute
arose. The monthly underpayments would have constituted separate
causes of action. Therefore the pensions claimed from March 2011 to
September 2013 would have become prescribed.
[11]
In their submissions before the Labour Court the respondents stated
as follows. The appellant was attacking findings of fact made by the
labour officer. There was no allegation that such findings were
irrational. On prescription, they submitted that the unfair labour
practice was continuing at the time the matter was referred to the
labour officer and that, in terms of s94(2) of the Act, the claims
had not prescribed.
[12]
The Labour Court agreed with the labour officer, but for a different
reason, that the unfair labour practice was continuing and therefore
the claim was not prescribed in light of s94(2) of the Act. The court
agreed with the other factual findings made by the labour officer but
was of the view that the order directing the managing director and
board of directors to effect payment was irregular as they had not
been heard before the order was made. The court accordingly
confirmed the draft ruling but amended it to remove the reference to
the managing director and board of directors from the order.
PROCEEDINGS
BEFORE THIS COURT
[13]
Unhappy with the outcome of the confirmatory proceedings, the
appellant noted an appeal to this Court. It alleged that the Labour
Court had erred:
(i)
In determining that the respondents' claim was not prescribed.
(ii)
In confirming the finding by the labour officer that the appellant
had an obligation to pay the respondents when it was apparent that
the benefits claimed had arisen from an agreement to which appellant
had not been a party.
(iii)
In making a finding as regards the respondents' attendant tax
obligations and placing an obligation on the appellant to pay any
ensuing tax penalties.
(iv)
In assuming review and/or appellate jurisdiction during the
confirmation proceedings when the court has no such power.
[14]
In its heads of argument before this Court, the appellant has
submitted as follows. Section 94 of the Act provides for a
prescriptive period of two years from the date when the dispute or
unfair labour practice first arose. Having submitted their claim to
the arbitrator on 9 September 2015, any claims by the respondents
prior to 9 September 2013 would have become prescribed as each
monthly underpayment constituted a separate cause of action. The
appellant further submitted that the benefits were initially offered
by Tongaat Hullett, its South African holding company, which
subsequently terminated the benefit. Its own attempts to incorporate
the benefits into the respondents' contracts of employment were not
accepted by them and consequently never became a contractual
entitlement. The benefits could therefore be extinguished without the
consent of the respondents. It further submitted that, not being
privy to the agreement between the respondents and Tongaat Hullett,
it had no obligation to pay any of the benefits and, consequently, no
unfair labour practice has been perpetrated by it. On the order
directing the appellant to pay ZIMRA tax penalties, it was its
submission that this was a declarator which the court a
quo
had
no jurisdiction to make. The court had determined a contingent right,
being the contingent tax penalty which had not arisen and may not
arise at all. Lastly, it submitted that the Labour Court misconstrued
its powers during confirmation proceedings. It could not, in terms of
the law, rehear the matter. Nor could it amend the ruling to remove
reference to the managing director.
[15]
The respondents pray that the appeal be dismissed with costs. They
have submitted as follows. In terms of s94(2) of the Act prescription
does not apply to a dispute or unfair labour practice which is
continuing at the time it is referred to a labour officer. The
appellant continues to discriminate against the respondents and has
refused to pay them their monthly dues. The wrong was a continuous
one and the respondents' claim was therefore not prescribed. The
respondents have further submitted that they had no relationship with
Tongaat Hullett outside of their employment contracts, which
contracts entitled them to the benefits now the subject of this
matter. The appellant had at all times accepted its obligation to
pay the benefits. They further argue that the order directing the
appellant to pay tax penalties was proper and that the court a
quo
correctly
exercised its confirmatory jurisdiction.
[16]
During oral argument, Ms Mahere,
for the respondents, raised an objection to the submission by the
appellant's counsel that s94(2) of the Act did not arise because
the matter between the parties was a dispute and not an unfair labour
practice. She submitted that this was a new point being taken on
appeal for the first time. The effect of that submission was that
s94(2) of the Act would not arise because the issue before the labour
officer was a dispute and not an unfair labour practice. At no point
had the appellant taken the position that the matter between the
parties was a dispute and not an unfair labour practice. She
submitted that, in any event, regard being had to s6(1)(e) of the
Act, the appellant's conduct constituted an unfair labour practice
as the latter had withheld the benefits due to the respondents as
punishment for having sought recourse in the High Court. This
conduct, in addition to the failure to pay the benefits, falls
squarely within the ambit of an unfair labour practice as defined in
s8 of the Act. Moreover, the challenge in the first ground of appeal
is whether or not the unfair labour practice was continuous and not
whether the conduct was an unfair labour practice in the first place.
[17]
Counsel for the appellant denied that it had changed its submission
on the question of prescription, thereby taking the respondents by
surprise. He submitted that it was appellant's primary position
that there was no unfair labour practice and that even if it were so,
the two year prescriptive period would still apply. The respondents'
cause has always been that the conduct by the appellant of
withholding compensation was their basis for alleging an unfair
labour practice. The appellant has always argued that the claims were
prescribed and that no reliance could be placed on s94(2) of the Act.
What the court a
quo
determined
was the time when the dispute arose. On a proper appreciation of the
common cause facts, the respondents' claims for compensation were
prescribed.
ISSUES
FOR DETERMINATION
[18]
From the foregoing, it seems to me that four issues arise for
determination by this Court. The first issue relates to the question
whether the matter referred by the respondents' to the labour
officer was referred as a mere dispute or an unfair labour practice
and, concomitantly whether the claim by the respondents had become
prescribed. The second issue is whether the court a
quo
was
correct in confirming the labour officer's ruling that the
appellant had an obligation to pay the benefits. The third is
whether the court a
quo
correctly
confirmed the order directing the appellant to pay additional tax
losses by the respondents. The last is whether the court a
quo
could,
in confirmation proceedings, re-hear submissions and amend the
ruling. I relate to each of these issues in the same order in which
they arise.
WHETHER
THE MATTER REFERRED TO THE LABOUR OFFICER WAS A MERE DISPUTE
[19]
The contentious issue that arises is whether the matter referred by
the respondents to the labour officer was so referred as mere dispute
or as an unfair labour practice and whether, in terms of s94(2) of
the Act, the claims by the respondents were prescribed. There is no
doubt in my mind that, although the respondents did not, at the time
they approached the labour officer, specifically refer to the
provisions of s8 of the Act dealing with unfair labour practices by
an employer, the gravamen of their complaint was one of an unfair
labour practice and not just a dispute.
[20]
The letter referring the matter to the Principal Labour Officer by
the respondents' legal practitioner is dated 8 September 2015. It
states in no uncertain terms that the matter being referred was one
“of breach of employment contracts and unfair practices by Triangle
Limited.” It makes the allegation that the appellant had “withheld
payments due to them as a way of punishing them for asserting their
rights in court.” It further alleges “unlawful conduct which is
not only discriminatory and breach of employment contracts but a
blatant unfair labour practice which we hereby request your office's
intervention in terms of the Labour Act.” It then requests the
labour officer to proceed in terms of s93 of the Act.
[21]
It is the contents of that letter that kick-started the process of
conciliation. When conciliation failed, the labour officer came up
with a draft ruling which was then referred to the Labour Court for
confirmation. In the draft ruling the labour officer found that when
the employees turned down the request for them to exit from TSSPF to
the Triangle Money Plan, the appellant had “proceeded to compensate
all executives who are members of the Money Plan Pension Scheme in
Zimbabwe and withheld compensation only to those executives who all
along have been and are still members of the Triangle Senior Staff
Pension Fund.” He further found the employees' “assertion of
discrimination persuasive” and that the appellant “should not
have precluded them from enjoying the incorporation of compensation
into the cash package or their salaries on the basis of their refusal
to exit from the Triangle Senior Staff Pension Scheme as prescribed
by the Respondent.” The labour officer concluded that, by
withholding compensation, “the appellant, its managing director and
Board of Directors” were guilty of an unfair labour practice. In
his founding affidavit to the application for confirmation, the
labour officer states that he “presided over the matter on 25
September 2015 on the alleged breach of contract of employment and
unfair labour practice.”
[22]
Although the labour officer on occasions used the terms “matter,
“dispute”, it is clear he used these interchangeably with the
term unfair labour practice. At no stage did the labour officer
entertain the idea that what he was dealing with was a mere dispute
as opposed to an unfair labour practice. It was for that reason that
the labour officer went on to consider “whether the matter …
between the contending parties were (sic) of a continuous nature”-
a clear reference to s94(2) of the Act.
[23]
The appellant itself accepted that the issue before the labour
officer involved an investigation into whether or not it (the
appellant) had committed an unfair labour practice. In its written
response to the complaint raised before the labour officer, it
submitted that the respondents were only entitled to those claims
which had arisen within two years of the date of the submission of
the matter to the labour officer. It even accepted that, were it to
be found that it had committed an unfair labour practice resulting in
underpayment every month, then such monthly underpayments would
constitute separate causes of action. It submitted that the
respondents could not rely on subs (2) of s94 of the Act and argue
that the unfair labour practice (if such was one) was still
continuing. In other words the appellant accepted that should the
labour officer find that there was an unfair labour practice, he
should further find that each such monthly underpayment constituted a
separate cause of action in respect of which the two-year
prescriptive period provided in subs (2) of s94 would apply. At no
stage did the appellant argue that the matter before the labour
officer was not an unfair labour practice but rather a mere dispute –
a point belatedly raised during oral argument. In all the
circumstances therefore I hold that the issue before the labour
officer was whether the appellant had committed an unfair labour
practice by deliberately withholding monthly payments of benefits and
whether the individual monthly claims were in any way affected by the
two-year prescriptive period.
WHETHER
THE RESPONDENTS' CLAIMS HAD PRESCRIBED
[24]
Having found that the issue before the labour officer was whether the
appellant had committed an unfair labour practice, the issue that
consequently arises before this Court is whether the monthly
benefits, or any of them, had become prescribed. As already noted,
the appellant's position was that the respondents' cause of
action would arise every month and that in terms of s94 of the Act
such cause of action would become prescribed after a period of two
years from the date when it arose. Accordingly the respondents were
only entitled to succeed on those claims that had arisen within the
period of two years before the lodgement of their complaint. The
appellant, in its heads of argument before this Court, argued that
the respondents cannot rely on subs (2) of s94 because the section
“clearly states as to when such a prescriptive period must be
reckoned from.” However the appellant, as is clear from its heads,
made no effort to interpret what subs (2) of the section means.
[25]
That subsection states, in short, that prescription shall not apply
to an unfair labour practice which is continuing at the time it is
referred to a labour officer. The question before the court a
quo
and
this Court is the interpretation to be accorded to the phrase “which
is continuing at the time it is referred.” Whilst the principle of
a continuous unfair labour practice has not been fully developed in
our jurisdiction, the South African Labour Appeals Court has had
occasion to consider the interpretation to be accorded to a similar
phrase in their labour legislation. A case in point is that of SABC
Ltd. v CCMA & Ors
2010 (3) BLLR 251 (LAC). At paragraph 27 of the judgment, the court
remarked as follows:
“….The
problem however is that the argument presented by the appellant is
premised upon the belief that the unfair practice or unfair
discrimination consisted of a single act. There is however no basis
to justify such belief. While an unfair labour practice or unfair
discrimination may consist of a single act, it may also be
continuous, continuing or repetitive. For example, where an employer
selects an employee on the basis of race to be awarded a once-off
bonus, this could possibly constitute a single act of unfair labour
practice or unfair discrimination because like a dismissal, the
unfair labour practice commences and ends at a given time. But where
an employer decides to pay its employees who are similarly qualified
with similar experience performing similar duties different wages
based on race or any other arbitrary grounds, then notwithstanding
the fact that the employer implemented the differential on a
particular date, the discrimination is continual and repetitive. The
discrimination in the latter case has no end and is therefore ongoing
and will only terminate when the employer stops implementing the
different wages. Each time the employer pays one of its employees
more than the other, he is evincing continued discrimination.”
[26]
I agree with the above remarks. Where, as in this case, the monthly
benefits are withheld, the unfair labour practice is continual and
repetitive. It will only terminate when such discriminatory conduct
ceases and all the employees are treated the same. Section 94(2)
makes it clear that, in such a case, the prescriptive period of two
years does not apply. In other words, even in a situation where the
amounts claimed cover a period of, say, three years, the prescriptive
period of two years would not apply as the unfair labour practice
would be of a continuous nature.
[27]
In the present case, it is not in dispute that the monthly benefits
to which the respondents were entitled were being withheld. The
practice was continuing. In terms of s94(2), the claims, even those
that arose beyond the period of 2 years, were not prescribed.
WHETHER
THE COURT A QUO CORRECTLY FOUND THAT THE APPELLANT WAS LIABLE TO PAY
THE BENEFITS
[28]
It was the finding of the labour officer, subsequently confirmed by
the court a
quo, that
the appellant was under an obligation to pay the various outstanding
amounts, notwithstanding its claim that it was not privy to the
agreement that gave rise to the conferment of those benefits by its
parent company. The labour officer, in his draft ruling, found that
the appellant had an obligation to compensate the respondents. He
found that the appellant had authored the letter of 21 February 2011
to the individual employees undertaking to make such compensation. At
no stage did the letter make reference to the compensation being a
privilege or that the obligation to do so lay on its parent company.
The labour officer also found that it is common practice for an
employee's pension to be held or administered by an entity other
than the employer itself. He also found it strange that, whilst
denying liability on the basis that the agreement was between the
employees and the appellant parent company, the appellant was
prepared to pay them had they agreed to move to the Triangle Money
Plan.
[29]
The labour officer made findings of fact. That these were made in the
context of a draft ruling is neither here nor there. Those findings
were not inconsistent with the evidence before him. The labour
officer accepted the position that the pension fund was administered
by the Tongaat Hullett Pension Fund. The correspondence that forms
part of the record confirms that the respondents enjoyed the benefits
in question by virtue of their membership of the Pension Fund.
Nowhere does the appellant show the existence of a separate agreement
between the respondents and the holding company. Had there been such
an agreement, the appellant would, no doubt, have produced it. It did
not do so. What is apparent is that the respondents enjoyed these
pension benefits by virtue of their employment with the appellant and
not because the holding company had separately entered into
agreements with the respondents to provide these benefits. Indeed it
was not in contention that the respondents did not have any other
connection to the Tongaat Hullett Pension Fund except in their
capacities as employees of the appellant. In the letter of 21
February 2011 the appellant accepted that the “letter and
conditions contained therein are part and parcel of the revised terms
and conditions of employment.”
[30]
The court a
quo
agreed
with the findings of the labour officer that it was the appellant
that had the obligation to pay the benefits. This was a finding made
on a consideration of all the evidence. Such a finding cannot be
impugned unless the appellant shows that it was irrational – Hama
v National Railways of Zimbabwe
1996 (1) ZLR 664 (5), 670 C–E; Edward
Misihairambwi & 14 Ors v Africare Zimbabwe
SC22/17. Absent demonstrable, material misdirections and clearly
erroneous findings, the Labour Court was bound by the findings. No
such finding can be made on the facts of this case.
THE
ORDER TO PAY ADDITIONAL TAX LOSSES
[31]
The appellant submits that the order for the appellant to pay
additional tax losses was declaratory in nature. It submits that the
court a
quo
had
no jurisdiction to make such an order. During oral submissions,
counsel for the respondents explained that what was envisaged were
penalties to be imposed by ZIMRA owing to delays in the payment of
tax by the respondents.
[32]
I agree with the appellant that the court a
quo
made
a determination on a contingent right, namely additional tax. Such
tax penalty had not arisen and it is anyone's guess whether it ever
will be imposed. Neither the court a
quo
nor
the labour officer provided the basis, in law, upon which this order
was made. It is common cause neither party had made submissions on
it.
[33]
In any event, it is difficult to see how additional tax liabilities
would arise, it being common cause that no payment had been made to
the respondents. As I understand the law, the liability to pay tax
would arise once the respondents were paid their benefits and not
before. It is difficult to imagine ZIMRA imposing penalties on the
respondents in respect of benefits that were the subject of court
proceedings and which, to date, remain unpaid.
WHETHER
THE COURT A QUO PROPERLY EXERCISED ITS CONFIRMATORY ROLE
[34]
As I understand the appellant's submission on this aspect, the
court a
quo
neither
had review or appellate jurisdiction and could not therefore “rehear”
the matter. It could not amend the ruling and was confined to either
confirming it as it was or dismissing it in its entirety. It could
not substitute its own order.
[35]
In my view, there is no merit to the appellants' submission in this
regard. Section 93(5b) of the Act allows the Labour Court to grant
the application with or without amendment. In Air
Zimbabwe (Private) Limited v J.V. Mateko (2) Elijah Chiripasi and
Others
SC180/20, this Court had occasion to make the following pertinent
remarks:
“(15)…
It will be apparent from the above decision that when the Labour
Court is called upon to confirm a draft ruling it is essentially
being asked to exercise its powers of review.…
(16)–(27)…
(28)
What the court a
quo
did
was to confirm that the termination of employment was indeed lawful.
In doing so, it removed reference to a declaratur. It also removed
the names of the parties who had not been properly joined to those
proceedings. It also made provision for reinstatement, alternatively
payment of damages.
(29)
In my view, there was no substitution of the order of the labour
officer but rather a correction and addition to make the order more
acceptable in terms of the law. At the end of the day therefore the
order granted by the court a
quo
was
one within the contemplation of the labour officer, the amendment
having been made merely to ensure that the confirmed order accorded
with the law.
(30)
I am of the considered view, in light of the above sentiment, that
the changes effected by the Labour Court were indeed amendments and
that they cannot, by any stretch of imagination, be termed a
substitution. As noted earlier in this judgment, labour officers are
often lay persons with little or no training in matters legal. For
that reason they are given the power to make draft rulings which are
then subjected to scrutiny by the Labour Court, a specialised court
in terms of labour and employment."
[36]
In all the circumstances, therefore, I find nothing improper in the
manner in which the court a
quo
handled
the confirmation proceedings.
DISPOSITION
[37]
In light of s94(2) of the Act, the claims for unfair labour practice
made by the respondents against the appellant were not prescribed, as
these were of a continuing nature. The court a
quo
was
correct in confirming the finding by the labour officer that the
claims were not prescribed. The court was also correct in finding
that the appellant, and not its parent company, was liable for the
payment of the outstanding benefits. It was however irregular for the
labour officer to order payment of possible tax penalties by the
appellant. That part of the order should not have been confirmed.
[38]
In the result, it is ordered as follows.
1.
The appeal is allowed only to the extent that the order directing the
appellant to pay additional tax losses incurred by the respondents is
set aside.
2.
Subject to paragraph 1 above, the appeal is otherwise dismissed.
3.
The appellant is to pay the costs of the appeal.
MAVANGIRA
JA: I
agree
MAKONI
JA: I
agree
Scanlen
& Holdernes,
appellant's legal practitioners
Chinawa
Law Chambers,
2nd–11th
respondent's legal practitioners
