The applicant is not a stranger to the courts at all.In fact, for a period spurning more than eight (8) years he has been a constant visitor either to the Labour Court in Bulawayo, where he has a rich record of cross reference files dating back to 2010, or this ...
The applicant is not a stranger to the courts at all.
In fact, for a period spurning more than eight (8) years he has been a constant visitor either to the Labour Court in Bulawayo, where he has a rich record of cross reference files dating back to 2010, or this court, where he first made an approach in 2016.
In the present application, which he filed in this court on 4 October 2017, the applicant seeks condonation of the late filing of a review application which he intends to launch against the judgment of the Labour Court, per KABASA J, handed down on 22 May 2015 - some two years and five months earlier.
What can be gleaned from the papers placed before me is that the applicant had a labour dispute with his employer, the first respondent, as far back as 2005 when an attempt was made to transfer him from Bulawayo to Harare. He managed to obtain an order of the Labour Court, granted on 1 November 2010, per MOYA-MATSHANGA J, interdicting his transfer to Harare pending proper consultation and clarification of issues he had raised. That provisional order was later confirmed by the same judge on 25 February 2010, but, only to the extent that transfer to Harare was stopped.
Apparently, at some stage, the labour dispute was referred to an arbitrator in terms of the Labour Act [Chapter 28:01]. The arbitrator issued an award which was not appealed against and remains extant to this day. The applicant must have been unhappy with the outcome of proceedings before the arbitrator but did not contest it. Instead, he decided to make a direct approach to the Labour Court seeking relief which KABASA J described as “novel in nature.”
The applicant had sought an order to the effect that a case of his constructive dismissal had been established, that he receives compensation and damages in line with the proposed terms of separation, being direct and indirect loss, that the notice period follow determination under the preparatory ruling LC/MT/URA/77/10 relying on the inviolable exemption clause and that the arbitration award of Hon. M Mpango, on leave conditions at National Foods Ltd, be substituted with the conditions under Statutory Instrument 41/98.
The Labour Court must have had serious challenges trying to decipher what the applicant sought from that court. The relief sought was meaningless in the extreme.
When moving his application, the applicant had argued that his was not an appeal from a decision of the arbitrator but a direct application in terms of section 89(2)(d) of the Labour Act.
The respondent contested the application on the ground that the applicant could not approach that court in terms of that provision because that section envisaged the existence of an application in terms of section 93(7)(1) of the Labour Act.
That provision relates to a case where a Labour Officer has either issued a Certificate of No Settlement, but, for some reason, it is not possible to refer the dispute or unfair labour practice to compulsory arbitration, or the Labour Officer has refused to issue a Certificate of No Settlement, in which event the Labour Court may, on application, dispose of the matter in terms of section 89(2)(b) of the Labour Act.
The court upheld the point in limine taken by the respondent, and, in a judgment delivered on 22 May 2015, it dismissed the application....,.
What the Labour Court did, in the judgment sought to be taken on review, was to hold that there was no legal foundation for the applicant to make an application to it seeking an order, inter alia, that he had been constructively dismissed from employment and awarding him damages.
The applicant had advanced the argument that he was entitled to have direct access to that court in terms of section 89(2)(d) of the Labour Act.
It is important to consider that the labour dispute, or is it unfair labour practice, had previously been referred to and adjudicated upon by an arbitrator. The applicant was unhappy with the arbitral award but did not contest it.
In terms of section 98(10) of the Labour Act [Chapter 28:01]:
“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”
The applicant missed the train when he did not note an appeal and then sought to make a direct approach, ostensibly in terms of section 89(2)(d) of the Labour Act.
That section provides:
“(2) In the exercise of its functions, the Labour Court may, in the case of an application other than one referred to in paragraph (b) or (c), or a reference, make such determination or order or exercise such powers as may be provided for in the appropriate provisions of the Act.”
The court ruled that, as the applicant was raising an unfair labour practice, his case was already provided for in section 93 of the Labour Act and he was required to seek redress through conciliation by a labour officer. If that failed the matter had to be referred to arbitration, and, if unhappy with arbitration, he would appeal to the Labour Court in terms of section 98(10) of the Labour Act. It decided that, procedurally, it was incompetent for the applicant to make an approach to it the way he had done.
In my view, that reasoning is sound....,.
The decision by the Labour Court, to refuse the application on the procedural irregularity of the applicant's direct approach to it when the Labour Act requires the matter to commence by conciliation, was sound indeed. In fact this is a case which had not only be conciliated before it had also been arbitrated on. The applicant was therefore inviting the court to entertain the matter, not as an appeal, he having lost that opportunity when he did not appeal, but as a court of first instance.
It was untenable.
The Labour Court is a creature of statute and cannot do that which it is not empowered to do by the statute creating it.
