GARWE
JA
[1]
This
is an appeal against confirmatory proceedings conducted by the Labour
Court on 8 September 2017 in terms of section 93(5) of the Labour
Act. At the end of the proceedings the Labour Court made a number of
alterations to the draft ruling issued by the Labour Officer.
[2]
The Labour Court has the power to confirm a draft ruling with or
without amendment. The issue for determination before this Court is
the extent to which the Labour Court can, in confirmation proceedings
of the draft ruling of a labour officer, amend such a ruling.
FACTUAL
BACKGROUND
[3]
The 2nd
– 301st
respondents were employed by Air Zimbabwe (Private) Limited (“the
appellant”) in various capacities at divers occasions. Following
the decision of this Court in Nyamande
& Anor v Zuva Petroleum (Pvt) Ltd
on 17 July 2015, the appellant terminated the employment contracts of
the respondents on three months notice. The notices of termination
were issued on 31 July 2015 and all made it clear that the
termination was pursuant to the appellant's common law right to
terminate employment on notice.
[4]
Aggrieved by the termination of their employment, the respondents
collectively lodged a complaint of unfair dismissal with the Labour
Officer. They contended that the termination of their employment
contracts had been carried out contrary to the provisions of section
12(4) of the Labour Act, [Chapter
28:01].
The
appellant opposed the claims on three bases:
(i)
First, that some of the respondents cited in the proceedings were not
party to the proceedings as they had been re-engaged and one of them
was deceased.
(ii)
Second, that the amendment to the Labour Act that sought to impose
retrospective application of section 12(4)(b) of the Act was
unconstitutional.
(iii)
Lastly that “if the tribunal was inclined to retrospectively apply
the section, then the matter must be referred to the Constitutional
Court”.
[5]
In her draft ruling the labour officer (the first respondent in this
matter) found that the respondents had been unfairly dismissed and
that the termination was therefore null and void.
In
addition she ordered the appellant to comply with section 12(C)(2) of
the Act and that her ruling be implemented within thirty (30) days of
receipt of the order.
Pursuant
to that draft ruling, the labour officer filed an application with
the Labour Court for the confirmation of that ruling.
The
appellant opposed the application before the Labour Court on several
grounds:
(i)
First, that the labour officer had erred in failing to refer the
matter to the Constitutional Court. (ii) Second that the ruling
related, in part, to employees who were not party to the proceedings.
(iii) Third, that the labour officer had granted a declarator in
spite of the fact that she had no power to do so.
(iv)
Lastly that the order that the appellant complies with section
12(C)(2) of the Act was improper because that section was not
applicable to the matter before her.
[6]
In its determination, the Labour Court held that the first part of
the operative portion of the draft ruling was a declarator in respect
of which the labour officer and the Labour Court itself had no
jurisdiction to grant.
The
court further determined that the labour officer ought to have
removed the names of the employees who had been improperly joined to
the proceedings.
The
court also held that the order that the appellant pay the minimum
retrenchment package to the employees was a misdirection because once
the labour officer found that the termination of the employment was
unlawful, she should have granted an order of reinstatement.
[7]
The court was also of the view that in light of section 93(5b) of
the Act (which provides that the Labour Court may grant the
application with or without amendments) it had the power to amend the
ruling so that the final ruling would be legally sound.
The
court also determined that although the labour officer had not dealt
with the request for the referral of the matter to the Constitutional
Court, it was clear that such a referral could only be made by a
court and not a labour tribunal.
Further
that the Labour Act, as amended, was valid notwithstanding that it
imposed financial obligations on employees retrospectively.
Consequently
the Labour Court issued an order in the following terms:
“Consequently
the draft order and ruling of the applicant is confirmed subject to
the following amended terms:
1.
The 39th,
89th,
90th,
95th,
134th,
154th
and
227 respondents are struck off the matter.
2.
The first respondent unfairly and unlawfully terminated the contracts
of the remaining 2nd
to 301st
respondents.
3.
The first respondent be and is hereby ordered to, within 60 days of
this order, reinstate the remaining 2nd
to 301st
respondents to their positions without loss of pay and benefits. If
reinstatement is no longer tenable, the first respondent is to pay
the remaining 2nd
to 301st
respondents, damages in
lieu
of reinstatement which the parties are to negotiate, failing which
either party can approach the applicant for quantification.”
PROCEEDINGS
BEFORE THIS COURT
[8]
Unhappy with the above determination by the court a
quo,
the appellant noted an appeal with this Court. In its notice of
appeal, it raised five grounds:
At
the hearing of the appeal, however, it abandoned all its grounds of
appeal except for the third ground.
The
first and second grounds attacking the retrospective application of
section 18 of the Labour Amendment Act No. 5/15 were abandoned in
light of the decision of the Constitutional Court in Greatermans
Stores (1979) (Private) Limited T/A Thomas Meikles Stores & Anor
v The Minister of Public Service, Labour and Social Welfare &
Anor
CCZ2/18 in which the Constitutional Court held that the retrospective
operation of the amendment was not unconstitutional.
The
fourth and fifth grounds of appeal were in turn abandoned because
they were inconsistent with the law.
[9]
The gravamen of the remaining ground was that the court a
quo
was wrong in substituting the ruling of the labour officer with its
own determination and that in doing so the court went beyond merely
amending the ruling.
Parties
were given leave to file supplementary heads of argument in this
regard.
[10]
The appellant submitted that the court a
quo
erred in exercising appellate authority in confirmation proceedings.
It
argued that the court a
quo
had no statutory authority to substitute the relief granted by a
labour officer with what it considered to be appropriate. In other
words the court
a quo
exceeded its jurisdiction by substituting the ruling with its own
determination.
Whilst
accepting that section 93(5b) allows the Labour Court to grant an
application for confirmation with or without amendments, what the
court a
quo
did, so the appellant argued, was more than amend the ruling.
An
amendment entails a minor revision or addition to an instrument and
for this definition appellant relied on Black's
Law Dictionary, Bryan A. Garner 10th
Edition, Thompson Reuters,
2014.
By
substituting its own relief which had not been prayed for or
contemplated by the labour officer, the court did not simply amend
but substituted the ruling of the labour officer with its own.
[11]
The appellant further submitted as follows:
The
court a
quo
had three options -
(i)
It could have confirmed the ruling as it was;
(ii)
It could have simply refused to confirm it; or
(iii)
it could have confirmed the ruling with an amendment, being a minor
addition or subtraction.
Instead
the court a
quo
recast the disputation and determined the matter afresh after which
it confirmed its own determination.
[12]
The respondents dispute that this is a correct interpretation of the
phrase “with or without amendments”.
They
argued that the provision clothes the Labour Court with the
discretion to amend the draft ruling.
The
legislature was mindful of the fact that labour officers are not
trained lawyers and consequently their draft rulings are subjected to
scrutiny by the Labour Court which is a specialised court in labour
matters.
The
word “amendment” is broad and gives the court the power to do
justice as the case may require.
The
word “amend” means to make changes to a text in order to make it
more accurate and meaningful.
The
legal complexion of the dispute remained the same.
The
court a
quo had
noted
that the draft ruling was irregular as neither the labour officer nor
the Labour Court itself can issue declaratory orders.
Further,
reinstatement is a necessary consequence of an unlawful termination
of employment.
The amendment was therefore proper and warranted as it sought to make
the draft ruling sound at law.
ISSUE(S)
FOR DETERMINATION
[13]
The issue that consequently arises for determination before this
Court is whether the court a
quo
acted within the bounds of its powers when it amended the labour
officer's draft ruling in the manner it did.
Central
to this issue is the need to appreciate the nature and purpose of a
draft ruling by a labour officer and what is meant by the term
“amendment” when applied to such a ruling.
[14]
In Isoquant
Investment (Pvt) Ltd t/a Zimoco v Darikwa
CCZ6/20 the Constitutional Court went to great lengths to explain the
process to be followed by a labour officer before he or she comes up
with a draft ruling.
At
that stage there is no formal hearing before the labour officer and
the ruling is predicated on material collected by the labour officer
during and after the conciliation process. The court was at pains to
point out that:
“The
ruling has no legal force at this stage. An employee cannot enforce a
'draft ruling'. Both the employer and the employee cannot seek a
review or appeal against the ruling at this stage since it will still
be a 'draft'. It is a suspended ruling, which must not be taken
as a direction that the money be paid there and then. It is an
interlocutory ruling in abeyance and not a final ruling. It is a
ruling that is made pending the decision of the court a quo which may
subsequently give final effect to the 'draft ruling'. The matters
in issue remain open depending on the conduct of the party at whom
the 'draft ruling' directed….”
[15]
In Willmore
Makamure v Minister of Public Service, Labour and Social Welfare (2)
Attorney General of Zimbabwe
CCZ01/20,
dealing with the confirmation proceedings in declarations of
invalidity of a law or conduct of the President or Parliament, the
Constitutional Court noted that:
“Confirmation
proceedings are in the nature of a review. The court… is endowed
with the power to review orders of constitutional invalidity made by
lower courts ….”
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]
It was common cause in the court a
quo
that the ruling by the labour officer was declaratory and further
that neither the labour officer nor Labour Court has the power to
grant a declarator. The operative part of the draft ruling was
couched as follows:
“1.
The termination on notice is hereby declared null and void.
2.
The respondent to comply with section 12c(2) of the Act.”
[17]
The court a
quo
considered that the operative part in para one was a declaratur.
Bearing in mind that neither the labour officer or Labour Court had
the power to grant such an order, it decided to amend the draft order
so that it would be, as the court stated “legally sound”.
To
cure the irregularities apparent from the ruling, the court a
quo
determined that the order should be amended to remove the names of
the employees who had been improperly joined in the proceedings.
It
proceeded to remove the reference to a declaratur
that the termination was null
and
void
and replaced the same with an order that the termination was unlawful
and that the respondents be reinstated to their former positions and,
that failing, that they be paid damages in
lieu
of such reinstatement.
[18]
The issue that arises is what should the Labour Court do when faced
with a draft ruling containing, in part, relief that is not
sanctioned by the law.
The
Labour Court would have been aware of various decisions of this Court
that have held that the Labour Court itself and the tribunals below
it have no jurisdiction to grant a declaratur - in this regard see
UZ-UCSF
Collaborative Research Programme in Women's Health v Shamuyarira
2010 (1) ZLR 127 (S), 130C-E, where this Court remarked as follows:
“… nowhere
in the Act is the power granted to the Labour Court to grant an order
of the nature (declaratory order) sought by the respondents in the
court a
quo,
nor have I been referred to any enactment. 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 authorizing the Labour Court to grant such
an order.”
[19]
The above remarks on the lack of jurisdiction to issue declaratory
orders by the Labour Court would of necessity apply to a labour
officer. Such officer has no jurisdiction to issue a declaratur
which relief is specifically bestowed on the High Court by statute.
[20]
In these circumstances the court a
quo
could not have confirmed the ruling as it was because it too cannot
grant such declaratory relief.
Furthermore,
the court is obliged to confirm a ruling that is capable of
enforcement.
[21]
As indicated earlier in this judgment, a draft ruling is exactly what
the terms says. It is a draft and has no legal effect until confirmed
by the Labour Court.
The
purpose of the confirmation proceedings is to test the substantive
correctness or fairness of the draft ruling. Only through an
application for confirmation of the draft ruling can it be given
legal recognition and enforcement.
As
stated in the Isoquent
Investments
case supra
at pp26-28 of the judgment -
“Confirmation
of a draft ruling is a legal process. The judicial officer… is not
merely rubber-stamping the 'draft ruling' of the labour officer.
The judicial officer is required to thoroughly investigate the
matter…….. A 'draft ruling' is not a determination, as it is
not preceded by a hearing. The purpose of making an application
supported by an affidavit is to place the matter in dispute and the
evidence before the court for hearing and determination. A perusal of
section 93(5b) of the Act is reflective of the fact that a hearing
commences when the matter goes for confirmation before the Labour
Court. It is not coincidental that the term 'hearing' appears for
the first time in the same section in terms of which the matter is
brought to the Labour Court for confirmation….”
[22]
It is apparent from these remarks that the purpose of making an
application for confirmation is to place the matter in dispute and
the evidence before the Labour Court for hearing and adjudication.
[23]
Cognisant of the fact that the Labour Court is empowered to confirm
the draft ruling with or without amendments, the question that arises
is whether the changes effected by the Labour Court to the draft
ruling constitute the amendment envisaged by the Act.
[24]
Having found that the basic order that the termination was null
and
void
was appropriate but had been expressed as a declaratur
in the draft ruling, the court proceeded to “panel beat” the
draft ruling in order to remove the reference to a declaratur.
The
court then substituted the order that was in the contemplation of the
labour officer.
The
court was also mindful of the correct legal position that a
determination of unlawful or unfair dismissal necessarily results in
a further order of reinstatement or alternatively payment of damages
– see Tamanikwa
& Ors v Zimbabwe Manpower Development
SC33/13.
[25]
There is a dispute between the parties to this appeal as to what
constitutes an amendment. The appellant argues that this refers to a
minor correction or adjustment whilst the respondents submit that the
word is much wider than suggested.
Indeed
both the Oxford
English and Spanish Dictionary, Thesaurus, and Spanish to English
Translator
defines an amendment to be “a minor change or addition designed to
improve a text, piece of legislation, etc”.
The
Longman
Dictionary of Comprehension English
also defines an amendment as "a small change, improvement or
addition that is made to a law or document”.
Investopedia
however defines the term to mean “a change or an addition to the
terms of a contract, a law…” whilst Wikipedia
defines an amendment as “the alteration of a… document for the
purpose of correcting some error or defect in the original …”.
Thesaurus
also states that “an amendment is essentially a correction”.
Merriam
– Webster
defines an amendment as “an alteration in wording to cure the
defect in the pleading”.
[26]
It will be apparent from the above definitions that an amendment is
an alteration effected to a text or document to cure a defect. If may
also be a variation. It cannot however entail a substitution which is
the complete replacement of something with another.
[27]
The finding in the draft ruling that the termination of employment
was null
and
void
meant that the termination of employment was wrongful and unlawful –
see Tamanikwa's
case, supra. The law is settled in this jurisdiction that the remedy
to an unlawful termination is reinstatement, alternatively payment of
damages: Hama
v National Railways of Zimbabwe
1996 (1) ZLR 664 (S).
That
finding was not interfered with by the court a
quo.
[28]
What the court did was to confirm that the termination of employment
was indeed unlawful. In doing so it removed reference to a
declaratur.
It also removed the names of parties who had not been correctly
joined to those proceedings. It also made provision for reinstatement
alternatively payment of damages in
lieu
thereof.
[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
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 dictates of the law.
[30]
I am of the considered view, in light of the above sentiments, 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 experience 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 matters of
labour and employment.
DISPOSITION
[31]
For the above reasons, I find that there is no merit in this appeal.
The amendments effected by the court a
quo
in the process of confirming the draft ruling were completely
consistent with section 93(5) which allows confirmation “with or
without amendments”.
[32]
On the issue of costs, I am of the view that these should follow the
event.
[33]
In the result it is ordered as follows:
“The
appeal be and is hereby dismissed with costs.”
MAVANGIRA
JA: I
agree
MATHONSI
JA: I
agree
Mawere
& Sibanda,
appellant's legal practitioners
Caleb
Mucheche & Partners,
respondents legal practitioners
1.
2015 (2) ZLR 186 (S)
