Opposed
Application
MUZENDA
J:
This
is an application for a declaratur where that applicant is seeking
the following relief as per her draft order:
“IT
IS ORDERDER THAT:
1.
The application be and is hereby granted.
2.
The disciplinary proceedings conducted by the respondent against the
applicant in terms of SI 15 of 2006, be and is hereby declared a
nullity.
3.
The respondent be and is hereby ordered to reinstate the applicant
without loss of salary and benefits with effect from the date of
termination of contract of employment.
4.
The respondent be and hereby ordered to pay costs of suit on an
attorney-client scale up to the application is opposed.”
The
application is opposed. The respondent raised three points in
limine:
1.
This matter has already been determined by the Labour Court sitting
at Harare under case No. LC/H/LRA/216/17. This identical application
has already has a judgement.
2.
In as far as this Honourable Court has jurisdiction over labour
matters, it is not permissible for parties to approach the High Court
and the Labour Court with the same issue as was done herein. In other
words, the matter is res
judicata.
3.
The dispute has already been dealt with by the Labour Court.
BACKGROUND
Applicant
is a former employee of the respondent. Her contract of employment
was terminated by the respondent using the standard National
Employment Council SI, 15 of 2006. A designated agent attempted to
register the determination with the Labour Court but the Labour Court
rejected the application on the basis that the respondent did not
fall under the auspices of National Employment Council for Zimbabwe
Schools Development Association and Committees of Zimbabwe.
The
applicant made another application in the Labour Court seeking among
other things the setting aside of the disciplinary proceedings
conducted by the respondent in terms of SI 15 of 2006 and
reinstatement of the application without loss of benefits.
The
Labour Court application was struck off the roll with costs for lack
of compliance with the rules.
The
applicant then filed the present application.
In
opposing the application, the respondent contend on the merits that
after the dismissal of the applicant, she appealed against her
dismissal in terms of the National Employment Council for Schools
Development Association, as already highlighted herein, the Labour
Court declined. Respondent contend further that she used SI 15 of
2006 because at the time the disciplinary proceedings were conducted
there was no registered code of conduct governing the labour issues
of the respondent. Respondent added that when the Labour Court
removed the matter from the roll, applicant made another application
which was also dismissed by the Labour Court.
Points
in limine
Before
dealing with the points in
limine
the court needs to register its concern with the condition of the
record of proceedings.
The
index was randomly prepared and the documents are not arranged in
tandem with their positions spelt out on the index. The papers are
repeatedly annexed and it is clear that applicant's legal
practitioners did not check if the record was in order before the
matter was set down for hearings.
It
is the sole duty of the applicant's legal practitioners to ensure
that the record is properly arranged, well paginated in sequence of
the pleadings and more particularly that the court's copy
corresponds with the copies retained by the parties, this will make
it easy for quick reference by the court during proceedings.
In
future, the parties were informed during the hearing the matter can
be struck off the roll and applicant ordered to pay the wasted costs
of the other party debonis
propriis.
The
lack of order of the record was condoned and the application was
allowed to be heard, but applicant was asked by the court to address
it on the issue of costs at a later stage.
WHETHER
THE MATTER HAS ALREADY BEEN DETERMINED BY THE LABOUR COURT AND
WHETHER IT IS RES
JUDICATA
The
respondent submitted that the applicant is abusing the court process
by bringing an application which has already been disposed of by the
Labour Court.
The
applicant on the other hand contended vigorously that the application
before this court is for a declaratur and no such application had
previously been placed before a Labour Court because the latter court
does not have jurisdiction to grant a declaratur.
Applicant
further added that what was before the Labour Court was an
application relating to scope.
I
am persuaded by Mr Marara
when he submitted quoting MUTEMA J
when he ruled that a litigant raising the issue of res
judicata
must show that the dispute has been conclusively settled on the
merits by a court of competent jurisdiction and that the two actions
are between the same parties, concerning the same subject matter
founded on the same cause complaint.
I
am satisfied that the points in
limine
are misplaced and they are all dismissed.
WHETHER
APPLICANT CAN BE GRANTED THE RELIEF SOUGHT
The
basis for seeking the order for a declaratur by the applicant is
basically that the proceedings were conducted under the auspices of
SI 15 of 2006 and not under the code of conduct for the National
Employment Council for Welfare and Educational Institutions which was
the appropriate employment Council at the time the disciplinary
proceedings were conducted.
The
respondent denies that it used SI 15 of 2006 wrongly.
It
argues that at that time there was no registered code of conduct to
be used by it so it used SI 15 of 2006.
The
argument by the respondent does not find favour with this court.
The
National Employment Council for Welfare and Educational Institutions
apply to non-governmental schools and has been in existence for
fairly a long time.
In
my view the respondent sought to have resorted to that employment
council in disciplining the applicant.
I
agree with the applicant that once the respondent used the wrong
statute and/or wrong code of conduct, the subsequent proceedings are
nullity.
The
proceedings were not in accordance with the due process of the
appropriate legislation applicable to the dispute in question. SI 15
of 2006 would only apply where there is no applicable code of
conduct.
On
the question of whether this court has jurisdiction over labour
matters, Mr Mboko
submitted that, he was aware that the court has jurisdiction and in
my view there is no need to belabour the issue where it is common
cause to the parties before me.
In
the matter of Johnson
v Agricultural Finance Cooperation,
GUBBAY CJ (as he then was) held that:
“A
declaratory order under section 14 of the High Court of Zimbabwe Act,
requires a two prong enquiry:
(a)
Is applicant an interested party.
(b)
Is this a proper case for the exercise of the court's discretion?”
The
Johnson
case (supra),is
also
of the authority that a declaratory order ought to be granted on one
aspect if it will solve that part of dispute.
In
Bubye Minerals Private Limited v Minister of Mines and Mining
Development and 3 Others
MALABA DCJ
citing Mcfoy
v United Africa Co. Limited
reiterated the authority of the principle relied upon that all
proceeding founded upon a decision which is null and void abi
initio
are
also bad and incurably bad.
The
employer, the respondent can only do things which are governed by law
and act in accordance with the provisions of an appropriate
employment statute even where the employee does not object to the use
of the SI 15 of 2006.
The
applicant prayed for an order reinstating her without loss of salary
and benefits with effect from date of termination of her contract of
employment.
I
am aware that when the proceedings are declared null and void the
status quo is restored; however in this case the applicant or
respondent must use the appropriate conduct to deal with the issue of
whether the applicant should remain at work or not.
There
is no need to reinstate the obvious result in my view moreso where
the proceedings are declared a nullity.
I
asked Mr Marara
to address the court on the aspect of costs of the application.
He
indicated to the court that he will not pursue an order of costs as
he had done on the papers.
That
concession is proper in my view, instead of the applicant straight
away coming to this court for a declaratur she approached the Labour
Court on two different occasion unnecessarily causing the respondent
to incur costs.
Either
she could have applied for review of the proceedings or make an
appeal if she was not happy with the dismissal.
I
will not grant costs to the applicant also on the basis of the poorly
prepared record of proceedings and that duty fell on Mr Marara.
He admitted that the record was shambles and by such a conduct, the
court will not grant an order of costs even though the applicant
succeeded in this matter.
Accordingly,
it is ordered as follows:
(a)
The disciplinary proceedings conducted by the respondent against the
applicant in terms of SI 15 of 2006 be and are hereby declared a
nullity.
(b)
There will be no order as to costs.
Mutamangira
and Associates,
applicant's legal practitioners
Mboko
T G Legal Practitioners,
respondent's legal practitioners
1.
In SAMANYANGA AND OTHERS V FLEXMALL (PRIVATE) LIMITED HH5710/09
2.
See Makumbe Primary School v Vivian Makumbe and 2 Others LC/11/14/16;
Chikomba
Rural District Council v Herbert Pasipanodya SC26/2012
3.
SC17-1995
4.
SC3/11
5.
On p11 of the cyclostyled judgement
6.
[196] 3 All ER 1169 (PC) at 11721
7.
See also Mugwebie v Seed Co. Limited and Another 2000 (1) ZLR 93 @
97A-B
