Arbitration re: Conciliation, Disputes of Interest and Right & Confirmation and Registration of Labour Officer Rulings

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

The appellant is employed by the Traffic Safety Council of Zimbabwe as a Regional Manager. He was based at their Gweru office from where he was transferred to the Masvingo office.

The dispute which led to this case arose from his lateral transfer from Gweru to Masvingo.

On 14 November 2003, the respondent's Deputy Director, Finance and Administration, wrote a memorandum to the appellant advising him that he is transferred to Masvingo on a lateral transfer with effect from 1 January 2004 as result of a meeting which had been held by the Directorate of the respondent on 10 November 2003.

Reasons for the transfer were given, in the memorandum, as follows:

1. Training of managers through job rotation and enrichment.

2. That the Masvingo office was performing better than the Gweru office, though the Masvingo office was apparently smaller.

3. That the transfer had been necessitated by a thorough consideration of the likely impact on production and consequent benefits thereto.

The appellant wrote back to the Director of Finance making his submissions against the transfer.

The reasons that he gave were personal. He requested that the transfer to Masvingo be put on hold - but did not say for how long.

It is common cause, that, after the appellant had made his submissions, a meeting of the Directorate was held on Wednesday 19 November 2003 to deliberate on the representations made by the appellant.

On 20 November 2003, the Deputy Director wrote to the appellant advising, among other things, as follows:

“The directorate held a meeting at 11:00hrs to deliberate on the issues on Wednesday 19 November 2003. We sympathise with the personal circumstances in which you are. Also, we note, that, you are doing some publications concerning Traffic Safety work which could be made easier in Gweru. Nevertheless, the directorate realizes that each of us, forty seven (47) employees in all, have different personal circumstances, some of them could be much more taxing than yours. The directorate considers each case on its own merits but guided by the fact that the individual needs and goals are subordinate to those of Traffic Safety Council.”

The letter ended with the following statement:

“Having made a thorough consideration of your submissions, the directorate resolves that the earlier decision to transfer you to Masvingo, with effect from 1 January 2004, still stands.”

On 27 November 2003, the appellant wrote a long letter to the respondent appealing against the decision to transfer him to Masvingo and asking that it be reversed.

He did not succeed.

He took the matter to the Labour Relations Office alleging victimization and unfair transfer.

The Labour Officer referred the matter to Arbitration.

The arbitrator held, that, the respondent had not observed the dictates of the audi alteram partem rule and declared that the transfer was unlawful and should be reversed.

The Traffic Safety Council of Zimbabwe appealed against that decision at the Labour Court. The Labour Court upheld the appeal and confirmed the decision to transfer the appellant.

The appellant now appeals against the decision of the Labour Court.

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

This is an appeal against a judgment of the Labour Court which set aside an arbitral award made in favour of the appellant.

The background facts may be tabulated conveniently as follows:

1. The appellant (“Vimbai”) was employed by the respondent (“the Hotel”) as a supervisor.

2. On 18 January 2005 the Hotel wrote to Vimbai informing him that his contract of employment had been terminated. The letter reads as follows:

“Please be advised that effective 1 January 2005 your employment contract with Sheraton Harare Hotel and Towers has been terminated. You are no longer required to register for duty physically, on standby, or in any other form.

The decision has been taken by management as a last resort after futile attempts to resolve the matter amicably and through further attempts to settle the matter through arbitration. Management and yourself are of the opinion that the employment relationship has deteriorated to non-productive levels.

As a way forward, Sheraton Harare Hotel is willing to resolve the matter through arbitration provided both parties agree on terms of reference to be presented before the arbitrator.”

3. Vimbai took the letter to his trade union, the Zimbabwe Catering and Hotel Workers Union (“the Union”) which, on 20 January 2005, wrote to the Hotel indicating that Vimbai's dismissal would be challenged.

4. On 21 January 2005, the Hotel wrote to the Union as follows:

“Vimbai Mbisva's contract of employment has been terminated due to deterioration in the working relationship between Sheraton Harare Hotel and himself. As stated in our previous correspondence, we are willing and able to engage in dialogue that will result in the resolution of this matter. We are, in addition, willing to accept a determination from a body with appropriate authority to settle the matter.

The hotel welcomes intervention from the Zimbabwe Catering and Hotel Workers Union provided such intervention assists in a settlement of the above matter.”

5. Thereafter, the Union proposed that Vimbai be given a severance package equivalent to his salary for a period of two-and-a-half years, but, the Hotel rejected that proposal.

6. Subsequently, the Union and the Hotel entered into negotiations on the best way forward, but, the negotiations did not yield any positive results.

7. Then, on 25 January 2005, Vimbai went to the Hotel where he signed a Memorandum of Agreement (“the MOA”) which reads as follows:

“I, Vimbai Mbisva, hereby acknowledge that I have entered into an agreement with Sheraton Harare Hotel, under the following terms of which I have agreed:

1. To accept payment of the sum of Z$17,001,880=46 (Z$ seventeen million one thousand eight hundred and eighty dollars and forty-six cents) as full and final settlement of all claims that I have against Sheraton Hotel Harare, its directors, subsidiaries, associated companies, and operations. I acknowledge that I have received Z$17,001,880=46 (Z$ seventeen million one thousand eight hundred and eighty dollars and forty-six cents) in full.

2. To withdraw all claims, complaints, and statements made (by) me relating to Sheraton Hotel Harare, whether with my legal advisors, any legal advisors, any Government body, any court, tribunal or to (sic) any other organisation.

I acknowledge that I have no further claims against Sheraton Hotel Harare, its directors, subsidiaries, associated companies and operations, whether for damages or otherwise. I have entered into this agreement of my own free will and I confirm that my signature appears on this agreement. I undertake to file a copy of this agreement with my legal advisors and any other organisation whose assistance I had sought.”

8. On 2 February 2005, Vimbai's legal practitioners referred the issue of Vimbai's unlawful dismissal to a Labour Officer for conciliation. The Labour Officer failed to settle the dispute, and, accordingly, on 15 April 2005, issued a Certificate of No Settlement.

9. On 9 May 2005, the Labour Officer referred the dispute to compulsory arbitration, and identified the issues for arbitration as:

“(1) Whether the agreement of 25 January 2005, between V Mbisva and Sheraton Hotel, is valid or not.

(2) If not, what damages are payable to Mr Mbisva.”

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

This is an appeal from a judgment of the Labour Court upholding a decision of an arbitrator setting aside the dismissal of the appellant's employees who had been found guilty of an act or conduct inconsistent with the fulfilment of express or implied conditions of contracts of employment in that they had taken part in an unlawful collective job action.

The appellant's employees were members of the respondent. They engaged in an unlawful collective job action from 4 to 23 October 2006. It is common cause that at the time the employees engaged in the collective job action, on 4 October 2006, they had not given the fourteen days written notice of their intent to resort to such action on that day. They had not satisfied the other matters required under section 104(2) of the Labour Relations Act [Chapter 28:01] (“the Act”).

After the unlawful collective job action ended, the appellant commenced disciplinary proceedings against each employee who had taken part in the collective job action.

On 8 December 2006, the employees were individually charged with conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment in that he had taken part in the unlawful collective job action. The allegation was that the employees had contravened section 12B(2)(b)(1) of the Labour Relations Act [Chapter 28:01].

The disciplinary hearings were conducted in terms of section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003 (“the Regulations”).

The employees were found guilty of the misconduct charge and dismissed from employment.

The respondent took up the case of the dismissal of the employees with a Labour Officer on the ground that the dismissal constituted an unfair labour practice.

The contention was that the appellant should not have charged the employees individually with conduct they committed collectively as a group. The argument was that disciplinary proceedings ought to have been commenced against the employees as a group on the ground that they took part in an unlawful collective job action in terms of the provisions of Part XIII of the Labour Relations Act [Chapter 28:01].

The appellant accepted that the employees had taken part in an unlawful collective job action. It denied the accusation that, in instituting disciplinary proceedings against each employee on the charge that he had committed an act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment in that he had taken part in an unlawful collective job action, it committed an unfair labour practice.

The argument was that there was no provision in Part XIII of the Labour Relations Act [Chapter 28:01] to the effect that an employer who wishes to take disciplinary action against an employee for having taken part in an unlawful collective job action can only do so in disciplinary proceedings commenced against the employees who took part in such action as a group.

The Labour Officer failed to conciliate the dispute and referred the case for arbitration in terms of section 93(5) of the Labour Relations Act [Chapter 28:01].

SC200-97 : MUWENGA vs PTC
Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

This is an appeal against the decision of the Labour Relations Tribunal, brought under section 92(2) of the Labour Relations Act [Chapter 28:01] ("the Act"), in which it was held, that, the omission of the respondent ("the PTC") to promote the appellant to the post of superintendent did not amount to an unfair labour practice.

The factual background giving rise to the dispute, and upon which the question of law has been debated before this court, was succinctly outlined by the learned Chairman in his judgment. It may be restated as follows:

On 10 October 1984, the PTC invited applications for the post of Telephone Superintendent at its Gateway exchange in Gweru. Four such posts were to be filled by the lateral transfer of serving superintendents, or, if not available, by promotion from the grade of supervisor. The respondent was a Supervisor.

He applied.

After undergoing a two week training course, in April 1985, the appellant, and one Mahachi, a fellow Supervisor, were transferred, permanently, to Gateway Exchange with effect from 28 June 1985.

In April 1986, the appellant, and Mahachi, having by then acted for nine months, wrote to the Regional Telecommunications Manager requesting that they be appointed superintendents, as the two substantive posts at Gateway Exchange had not been filled. The immediate response to their veiled complaint was to offer them the choice of remaining in an acting capacity or being relieved of their positions.

Both resolved to continue as Acting Superintendents.

During February 1987, the appellant, and Mahachi, raised with the Senior Superintendent, Gweru, their concern at still awaiting substantive appointments; but to no avail. New posts, vacancies, and re-gradings were under freeze pending a review of the PTC's establishment.

Later that year, when the freeze was lifted, an exercise was undertaken by the PTC to fill the vacant substantive posts of superintendent at Gateway Exchange. Candidates were required to have attained five "O" level passes, including english language and mathematics, in the General Certificate of Education examination. There were no applicants with the stated qualification.

Neither the appellant, nor Mahachi, had obtained an "O" level pass in mathematics.

In January 1988, the Promotions Board of the PTC requested, and was granted, a waiver of the mathematics requirement for the post of Superintendent. The appellant, and Mahachi, thus qualified for promotion.

In the event, it was Mahachi, alone, who was appointed. The appellant was not, because, at that point in time, he was under investigation on charges of misconduct.

In September 1990, the PTC decided to advertise several posts, one of which was for a Superintendent at Gateway Exchange. The notice issued by it stated, explicitly, that, "O" level passes in english language and mathematics were required of the applicants.

The appellant applied, notwithstanding that he still lacked the mathematics qualification.

A supervisor from Harare Main Exchange also applied. He happened to satisfy the educational requirements: and so, it was he who secured the appointment.

Shortly, thereafter, on 5 February 1991, the appellant was informed, that, as a superintendent had now been appointed to Gateway Exchange, he was no longer needed to act in that capacity and was to be transferred back to Harare Main Exchange as a supervisor.

This was indeed a bitter pill for the appellant to swallow.

He had acted as superintendent at Gateway Exchange for a period of five years and seven months and was not prepared to comply meekly with the instruction that he revert to the grade of Supervisor. He immediately referred what he believed to be an unfair labour practice to a Labour Relations officer in terms of section 93(1) of the Labour Relations Act [Chapter 28:01]. A hearing was convened on 8 February 1991. The Labour Relations officer came to the conclusion that:

"The person who was appointed to fill the vacant post at Gateway Exchange was eligible for the post in terms of the Postmaster General's Circular No.8 of 1986, and in terms of the vacancy notice No.45 of 1990; the PTC acted within the parameters of its laid down policy, and, it was thus not guilty of an unfair labour practice in this regard."

Thereafter followed appeals to the Regional Hearing Officer and from him to the Labour Relations Board.

Section 8 of the Labour Relations Act specifies those acts or omissions which constitute an unfair labour practice by an employer.

Under section 10 of the Labour Relations Act, the Minister of Public Service, Labour and Social Welfare is empowered to prescribe, by statutory instrument, acts and omissions which constitute unfair labour practices and may vary, amend of repeal any such notice. Initially, such provision was made by the Minister in the Third Schedule to the Labour Relations (General) Regulations 1985 (S.I.368 of 1985); and, more recently, in the Second Schedule to the Labour Relations (Settlement of Disputes) Regulations 1993 (S.I.30 of 1993).

Those, then, are the particular acts or omissions deemed to be unfair labour practices which a Labour Relations Officer is mandated, by section 93 of the Labour Relations Act, to deal with.

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

This appeal, from the judgment of the Labour Court, raises the issue whether an Arbitrator can, in a compulsory arbitration, dictate the terms of a Collective Bargaining Agreement between the parties.Collective Bargaining Agreements are governed by Part X of the Labour Act [Chapter 28:01] (“the Act”). They are to be ...

This appeal, from the judgment of the Labour Court, raises the issue whether an Arbitrator can, in a compulsory arbitration, dictate the terms of a Collective Bargaining Agreement between the parties.

Collective Bargaining Agreements are governed by Part X of the Labour Act [Chapter 28:01] (“the Act”). They are to be negotiated by the parties mentioned therein as the following provisions demonstrate:

“PART X

COLLECTIVE BARGAINING AGREEMENTS NEGOTIATED BY TRADE UNIONS AND EMPLOYERS ORGANIZATIONS

74 Scope of Collective Bargaining Agreements

(1) This Part shall apply to collective bargaining agreements negotiated by registered trade unions, employers, and employers' organizations or federations thereof:

Provided that nothing in this Part contained shall prevent an unregistered trade union or employers' organization from negotiating a collective bargaining agreement.

(2) Subject to this Act and the competence and authority of the parties, trade unions and employers or employers organizations may negotiate collective bargaining agreements as to any conditions of employment which are of mutual interest to the parties thereto.

(1) Without derogation from the generality of subsection (2), a collective bargaining agreement may make provision for —

(a) Rates of remuneration and minimum wages for different grades and types of occupations;

(b) Benefits for employees;

(c) Deductions which an employer may make from employees' wages, including deductions for membership fees and union dues, and deductions which an employer may be required or permitted by law or by order of any competent court to make;

(d) Methods of calculating, or factors for adjusting rates of pay, and the dates, times and modes of payment;

(e) All issues pertaining to overtime, piece-work, periods of vacation and vacation pay and constraints thereon;

(f) The demarcation of the appropriate categories and classes of employment and their respective functions;

(g) The conditions of employment for apprentices;

(h) The number of hours of work and the times of work with respect to all or some of the employees;

(i) The requirements of occupational safety;

(j) The maintenance of, and access by the parties to, records of employment and pay;

(k) Procedures for dealing with disputes within an undertaking or industry;

(l) Housing and transport facilities, or, in their absence, an allowance for the same;

(m) Measures to combat workplace violence and handling its aftermath…,.”…,.

The list of subjects set out in subsection (3) are suggestions as to matters that may be included by the parties in a Collective Bargaining Agreement. Thus, the parties may elect to include all or any of the suggested topics in their agreement.

The point being made is that the statute does not confer a right on any of the parties, without agreement of the others, to have included in their Collective Bargaining Agreement, any of the subjects on the list.

This is understandable since a Collective Bargaining Agreement is a contract between the parties to it and only they can set the terms by which they will be bound. It follows that any benefits to be included in the Collective Bargaining Agreement must be agreed by the parties. They cannot be imposed by the Arbitrator, or indeed any court, in the same way that a court cannot write a contract for the parties.

What occurred in this case was totally improper. The Labour Officer, the Arbitrator, and the Labour Court all missed the point.

THE BACKGROUND

The proceedings on record commenced on the 27th June 2007, when the General Secretary of ZARWU (it is not clear whether these are the initials of the 4th respondent (Zimbabwe Amalgamated Railwaymen Union) or 1st respondent (Zimbabwe Railways Artisans Union)) wrote to the Designated Agent of the Railway Employment Council in the following terms:

“Dear Sir

RE: DISPUTE HOUSING ALLOWANCE AND EDUCATIONAL ASSISTANCE

On the full council meeting on 21 June 2007 there was disagreement between Labour and Management on the above issue.

Labour, through ZARWU, are referring the matter to your office for Concilliation (Labour Act Section 63).

We wait to hear from your office.”

Thereafter, all the parties were notified of a hearing to be held on 12 July 2007 and later postponed to 19 July 2007.

On 19 July 2007, the parties appeared before a conciliator. The latter required each of the parties to state his position on the matter and enquired as to whether any of the parties had varied its position on the dispute. The parties had not. He therefore issued a Certificate of No Settlement, and, by agreement with the parties, referred the matter to an arbitrator for compulsory arbitration. The terms of reference were agreed to be whether the respondents were entitled to:

(a) Housing allowance, and, if so, the quantum thereof (the claim was stated at $7,500,000 per month);

(b) Education allowance calculated at Government school rates, whether boarding or day school for up to a maximum of three children or registered dependents;

(c) The effective date of such award.

The Arbitrator appointed to deal with the matter was Mr Chinjeruke.

The point was taken before the Arbitrator, in limine, that the matter was not properly before him since no conciliation had taken place. That point was dismissed on the basis that the parties could, in terms of section 93(1) of the Labour Act [Chapter 28:01], agree, and did in fact agree, to refer the matter to arbitration....,.

An additional issue arising from the grounds of appeal is whether the Labour Court erred in failing to find that the referral to arbitration by the Labour Officer, before attempting to conciliate the matter, was a nullity.

It was submitted, in support of this ground of appeal, that the matter ought to have been conciliated by the Labour Officer before the referral to arbitration, and that the failure to conciliate rendered the referral to arbitration a nullity.

It seems to me that in terms of the provisions of section 93(1) of the Labour Act [Chapter 28:01], the Labour Officer could properly refer the matter to arbitration by agreement with the parties, and, it is clear that this is how the matter was referred to the Arbitrator. The terms of reference were agreed by the parties. However, in view of the fact that there was no legal right which was being sought to be enforced, the dispute being one of interest only, the Arbitrator's role in those circumstances would merely be a conciliatory one.

Thus, both the Labour Officer and the Arbitrator misconstrued their respective roles in the matter.

I may comment here that while the Labour Act provides no bar to a referral to arbitration by agreement, the Labour Officer ought to have assisted the parties in coming to some agreement. Since the dispute was one of interest, his role in conciliating the matter and assisting the parties to reach agreement, was invaluable. He ought to have attempted to settle the dispute by conciliation.

Section 93(1) of the Labour Act [Chapter 28:01] provides:

“(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.”…,.

The referral to the Arbitrator merely shifted the responsibility to conciliate the matter.

SC10-17 : MEDICINES CONTROL AUTHORITY OF ZIMBABWE vs NATHAN TORONGA and NOZIPHO MATSHITSE and BELLINGTON MUDYAWABIKWA and KUMBIRAI KAJONGWE
Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

This is an appeal against the whole judgment of the Labour Court of Zimbabwe, Harare, handed down on 11 of October 2011.The factual background of the matter is as follows:The respondents were employed by the appellant, Medicines Control Authority of Zimbabwe (“MCAZ”) in different clerical capacities and were also members of its Workers ...

This is an appeal against the whole judgment of the Labour Court of Zimbabwe, Harare, handed down on 11 of October 2011.

The factual background of the matter is as follows:

The respondents were employed by the appellant, Medicines Control Authority of Zimbabwe (“MCAZ”) in different clerical capacities and were also members of its Workers Committee. On 29 November 2010, the respondents were suspended from employment in terms of section 4(a) and (b) of S.I.15 of 2006, on charges of each having committed;

(i) Any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contact of employment; and

(ii) Wilful disobedience to a lawful order.

It was alleged against the respondents, in their capacity as Workers' Committee members that they had attempted to force the Medicines Control Authority of Zimbabwe management to address several issues said to be of concern to the appellant's workers. The appellant's executive sub-committee believed it had resolved the various grievances and, through written communication dated 18 October 2010, advised the respondents that the committee had fully dealt with the complaints in question. Further, that the appellant desired and was effectively ordering 'closure' to the whole issue.

The respondents, who were apparently of the opposite view, thereafter (and unproceduraly, according to the appellant), wrote a memorandum to the Minister of Health setting out a multiplicity of grievances and complaints against the conduct of the appellant and its senior personnel. The appellant took a dim view of this development and saw it as constituting a failure by the respondents to comply with the employer's lawful instruction. In specific terms, the instruction was that there be closure to the whole dispute.

Letters of suspension were subsequently issued to the respondents on 29 November 2010 inviting them to attend disciplinary hearings on different dates during the early days of December, 2011. Disciplinary proceedings were thereafter conducted with the result that the respondents were dismissed from their employment.

It is, in my view, pertinent, given the appellant's first ground of appeal, to set out the sequence of events following the issuance of the letters of suspension:

29 November 2010 - letters of suspension issued to all respondents.

30 November 2010 - the respondents took the matter to a labour officer for conciliation.

15-17 December 2010 - disciplinary hearings were conducted before a disciplinary committee and all the respondents were dismissed from their employment with effect from the date of suspension.

20-22 December 2010 - the respondents wrote identical letters to the appellant advising of their intention to appeal against 'the procedure, verdict and penalty' of the disciplinary committee.

January 2011 - a follow-up letter (to the one of 30 November 2010) was written by the respondents to the Labour Officer through the Ministry of Labour. It purported to add two more grievances to the one already filed, that is, unlawful dismissal.

19 January 2011 - a Certificate of No Settlement was issued by the Labour Officer and the matter was on that day referred to arbitration on a number of terms of reference.

27 March 2011 - arbitral award issued.

17 June 2013 - Labour Court hears appeal.

11 October 2013 - Labour Court judgment issued.

The first of the arbitrator's ten (10) terms of reference reads as follows:

“Whether or not the labour officer has jurisdiction” (sic)

The arbitrator made no ruling on this specific issue, and, after considering the other terms of reference, ruled that the appellant had convened and brought the respondents before an improperly constituted disciplinary committee, in contravention of laid down procedures. The arbitrator consequently held that all the other consequential proceedings founded on the improperly constituted disciplinary committee were a nullity. He ordered that the respondents be reinstated to their positions without any loss of salary and benefits effective from the day of suspension, failing which, that they be paid damages in lieu of reinstatement.

The appellant was aggrieved at this decision and filed an appeal to the Labour Court. Its appeal having been dismissed, the appellant has now filed this appeal.

It appears to me that three issues for determination arise from the appellant's grounds of appeal, and these are:

1. Whether or not the arbitrator ought to have made a finding on the issue regarding jurisdiction.

2. Whether or not an employee representative should have been included in the composition of the disciplinary committee.

3. Whether or not the respondents waived their right to have employee representatives on the committee panel.

The first issue is articulated thus in the appellant's grounds of appeal:

“The court a quo erred in holding that the failure of the arbitrator to make a finding in regard to jurisdiction was a procedural issue that should have been raised by way of review.”

This ground of appeal addresses the appellant's contention before the arbitrator to the effect that the respondents had not exhausted all internal appeal remedies and had prematurely, therefore improperly, brought the matter to the Labour Officer. As a consequence, the appellant further contended, the matter (on the merits) was also improperly before the arbitrator.

The fact that the arbitrator was fully alive to the issue of jurisdiction having been raised before him is evident from his summation of the appellant's submissions, thus:

“Respondent (appellant in casu) submitted that notwithstanding the fact that the given notices of appeal had no grounds, the claimants never gave the internal appeals structure an opportunity to dispose of the matter. Before an Appeals Officer was even selected, the claimants went before the Labour Officer for Conciliation. The respondent submitted that the internal appeal process had not been concluded and could not be concluded.”

In its heads of argument before the Labour Court, the appellant elaborated this issue and pointed out, correctly, as the above sequence of events shows, that the respondents referred the matter for conciliation the very next day (30 November 2010) following their receipt of the letters of suspension. At that time they had neither been subjected to a disciplinary hearing nor dismissed. They, therefore, by that token, triggered and followed a process parallel to the one that started with their letters of suspension. This is because during the time that the Labour Officer, rightly or wrongly, was seized with the dispute:

(i) The appellant was in the process of conducting disciplinary hearings against the respondents, which ultimately culminated in their dismissal from employment; and

(ii) The respondents were, from the 20^th of December 2010 onwards, requesting from the appellant, records of the disciplinary proceedings for appeal purposes.

Furthermore, and despite their request for the records of the disciplinary proceedings, purportedly for appeal purposes, the respondents dispatched to the Labour Officer a follow-up letter containing additional grievances for that officer's consideration. The respondents, however, and this is not something that they dispute, never pursued the threatened appeal but were seemingly content to have the matter heard by the arbitrator, to whom the dispute had now been referred. By so doing, the respondents abandoned the procedural route which should have started with an appeal to the appellant's Appeals Committee, then gone on to conciliation (see section 8 of S.I.15 of 2006), arbitration and the Labour Court.

The appellant contends that the respondents, having been suspended in terms of S.I.15 of 2006 (its default Code of Employment), the referral of the matter to conciliation was 'unlawful' as it was done in violation of the provisions of subsection (5) of section 101 of the Act which reads as follows:

“(5) Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or liable to be the subject of proceedings under an employment Code, nor shall he intervene in any such proceedings…,”

Subsection (6) imposes time limits within which a matter left un-determined at the level of the workplace, despite requisite notice, may be referred to a Labour Officer.

It is not relevant to the circumstances of this case.

It is apparent from section 101(5) of the Act that the respondents followed a route that may have placed before the Labour Officer a dispute such as the one referred to in that subsection, that is, one which is or is liable to be, the subject of proceedings under an Employment Code. This circumstance, in my view, reasonably called into question the jurisdiction of the Labour Officer to hear the dispute referred to conciliation under those circumstances. The appellant was therefore within its rights to raise the matter before the arbitrator.

While the arbitrator completely disregarded the appellant's submissions on the subject and determined the matter on other grounds, the Labour Court, before which the same issue was raised, gave its reasons for not considering it, thus:

“The first ground was not pursued in oral argument. In any event, it raised a procedural point. Such points ought to be raised by way of review rather than an appeal. Whether or not the matter was referred to the Arbitrator 'prematurely' is clearly a matter of procedure. Thus, the point could not be dealt with in this appeal.”

I find there is merit in the appellant's submission that the court a quo erred in finding that the issue of jurisdiction, that the Labour Officer did not consider, was a procedural issue that should have been raised by review.

Jurisdiction, in simple terms, can be defined as the power or competence of a particular court or tribunal to hear and determine an issue brought before it. See HERBSTEIN and VAN WINSEN, The Civil Practice of the High Courts of South Africa, Fifth Ed. Volume 1…,.

A plea of jurisdiction therefore attacks the competence of a court or tribunal to hear and determine the matter. It follows that a court or tribunal that has no jurisdiction, for whatever reason, to entertain a matter is not in a position to go beyond the question of its jurisdiction to determine any other issue to do with the dispute in question.

In casu, it may be safely assumed that the Labour Officer heard and dismissed a challenge to his jurisdiction (or lack thereof) to hear the matter. He however, in my view correctly, included this particular issue among those referred for arbitration. But, as already indicated and for reasons best known to himself, the arbitrator disregarded the issue and proceeded to hear the matter on the merits. That being the case, the Labour Court ought to have found that the arbitrator misdirected himself by not addressing, before he did anything else, the question of whether or not the Labour Officer had jurisdiction to hear the matter. A positive finding on the issue would have placed the dispute properly before the arbitrator for his determination thereof on the merits. In other words, the arbitrator's competence to hear the matter was predicated on the Labour Officer having validly and properly heard and considered the matter. By contrast, a negative finding would have rendered the whole conciliation process a nullity. The effect would have been that there was no issue for further determination before and by the arbitrator. This, in turn, would have meant that the appeal against the arbitrator's award was improperly brought to the Labour Court.

There is truth to the saying that you cannot put something on nothing and expect it to hold. It will collapse. McFoy v United Africa Co Ltd (1961) 3 All ER 1169 at 1172.

Accordingly, the determination of the appeal on the merits by the Labour Court was wrong at law and cannot be allowed to stand.

It is, in the result, ordered as follows:

1. The appeal is allowed with costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“1. The appeal be and is hereby allowed.

2. The award of the arbitrator is hereby set aside.

3. There shall be no order as to costs.”

HH71-15 : OK ZIMBABWE vs CLARIS MADZINGA
Ruled By: UCHENA J and MWAYERA J

The appellant lodged an appeal against the Magistrates Court decision wherein the court a quo registered an arbitral award. The appellant relied on the following grounds of appeal; 1. That the award was made in the absence of jurisdiction on the part of the arbitrator and that the dispute was therefore not capable of resolution through arbitration. 1.1 The provisions of the ...

The appellant lodged an appeal against the Magistrates Court decision wherein the court a quo registered an arbitral award.

The appellant relied on the following grounds of appeal;

1. That the award was made in the absence of jurisdiction on the part of the arbitrator and that the dispute was therefore not capable of resolution through arbitration.

1.1 The provisions of the Labour Act, in section 63(3)(b), make it clear that a Labour Officer cannot have jurisdiction over a matter with which a Designated Agent is seized. The Labour Officer did not therefore have jurisdiction to entertain the complaint, resultantly, he did not have the jurisdiction to refer the matter to the arbitrator.

1.2 Section 93(7)(b) of the Labour Act stipulates that where a Labour Officer (or Designated Agent) fails to finalise a dispute within 30 days of it being referred to him or her, either of the parties may refer the matter to the Labour Court. The matter should therefore have been referred to the Labour Court and not to a Labour Officer once the 30 day limit was exceeded.

1.3 Section 105(6) of the Labour Act, on which the arbitrator relied to found jurisdiction, applies not to complainants of unfair labour practices but to disciplinary proceedings.

2. The court a quo accordingly erred in failing to find that by virtue of the fact that the arbitrator had no jurisdiction to hear the matter the dispute was not capable of settlement through arbitration in terms of the laws of Zimbabwe and that the court was therefore bound by provisions of Article 36(1)(b)(1) of the Arbitration Act to decline to register the award.

3. The court a quo furthermore erred in failing to find that the dispute fell within the ambit of the provisions of Article 36(1)(b)(ii) of the Arbitration Act which provides that a court should refuse to register an award where the award is against the public policy of Zimbabwe. It was demonstrated to the court that the award is against the public policy of Zimbabwe. It was demonstrated to the court that the award was grossly irrational to the extent that it would be contrary to the public policy of Zimbabwe to register same on the basis that:

3.1 The respondent herein was awarded a salary for the period January to June 2012, when, by her own admission, she was not performing her duties at all between January and May 2012; and

3.2 Furthermore, the award was grossly irrational in that the respondent was awarded a salary for the month of June 2012 when the evidence on record demonstrated that the contract of employment had been terminated on 24 May.

4. The court a quo furthermore erred in giving judgement without giving any reasons for the decision. A judgment without reasons is a legal nullity.

The brief history of the matter is that the appellant and the respondent were in employer employee relationship. The respondent presented documentation from her doctor wherein it was recommended that she should be given duties which would not entail sitting for long hours. The respondent was employed as a till operator. Following the doctor's recommendations, when assigned to till operation by the appellant she could not take up her duties. The discord culminated in non-payment of salary and/or wages. The respondent then approached a Designated Agent of the National Employment Council with a complaint. The relevant section 63(3)(a) and (b) clearly spells out that where a Designated Agent is authorised to redress any dispute or unfair labour practice in terms of subsection 3(a) no Labour Officer shall have jurisdiction over the matter.

A reading of the section is clear that a Designated Agent has jurisdiction over a matter to the exclusion of any Labour Officer only when the matter is still within 30 days time from the date of notification. The legislative intention here being, inter alia, to exclude parallel process to encourage exhaustion of domestic remedies but certainly the mention of the time frame is important and worth noting, signifying the matter cannot be indefinitely held in abeyance before a Designated Officer. This is fortified in section 101(6) of the Labour Act [Chapter 28:01] which is instructive and reads -

“If a matter is not determined within thirty days of the date of notification referred to in para (e) at subsection 3, the employee or employer concerned may refer such a matter to a labour officer, who may determine or otherwise dispose the matter in accordance with s 93.1.”

It is in compliance with the law that the matter was referred, after certificate of no settlement, to the arbitrator. This disposes of the first ground of appeal.

A Designated Agent failed to resolve the matter within the 30 days statutory requirement and referred the matter to the Labour Officer who issued a certificate of no settlement and referred the matter for arbitration. The arbitrator determined the matter and issued an award. It is that award which the respondent sought to register for enforcement purposes. The magistrate duly registered the award and it is that registration which is subject of this appeal.

View Appeal
HH626-14 : THE NATIONAL EMPLOYMENT COUNCIL FOR THE CONSTRUCTION INDUSTRY vs ZIMBABWE NANTONG INTERNATIONAL (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

Section 93(1) of the Labour Act [Chapter 28:01] stipulates that a labour officer, to whom a dispute or unfair labour practice has been referred, shall attempt to settle it through conciliation, or, if agreed by the parties, by reference to arbitration. If the labour officer fails to resolve the dispute by conciliation within thirty days, a Certificate ...

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant's former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain acts of misconduct, including theft. FACTUAL CONSPECTUS The decision to ...

FACTUAL CONSPECTUS

The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3,986=61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.

Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of section 93 of the Labour Act [Chapter 28:01] (“the Act”). The dispute was placed before the respondent for a hearing. It was her case that no proper investigations were conducted into the allegations levelled against her, and, further, that she was not granted the right to be heard before she was summarily dismissed. She thus claimed damages for unlawful dismissal totalling US$23,253=34.

Before the labour officer, the parties did not agree on Ms Khan's monthly salary, as the appellant alleged that it was US$750= while Ms Khan argued that it was US$1,500=. The respondent ruled in favour of Ms Khan on this point, and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages in lieu of reinstatement amounting to a total of US$9,000=.

Subsequently, the labour officer applied to the Labour Court, in terms of section 93(5a) of the Labour Act [Chapter 28:01], for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings. The appellant opposed the application but the court a quo, after hearing oral argument from the appellant, granted an order confirming the ruling.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by the decision of the court a quo and has appealed against it to this Court. It argues, in the main, that the court a quo erred in simply confirming the respondent's award to Ms Khan of US$9,000= as damages without fully addressing the principles of law to be applied thereto. It further argued that the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property, and, in addition, had failed to avail herself for the hearing which led to her dismissal.

The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing. The court observed that the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.

Ms Khan was not cited in the appeal before this Court.

Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour, would be manifestly unjust, given that she would not have been notified of the hearing nor accorded the right to be heard before such an adverse order is made against her.

SECTION 93(5a) – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS

Counsel for the appellant rightly conceded that the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court a quo and in this Court. Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.

The court saw merit in his request for written reasons for the judgment in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of section 93(5a) of the Labour Act [Chapter 28:01]. The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm, or not, a labour officer's draft ruling in terms of section 93(5b) of the Labour Act [Chapter 28:01].

It is noted that prior to the Labour Amendment Act No.5 of 2015, labour disputes of right would go before a labour officer for conciliation, and, if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard. Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party, on the other hand, had the right to appeal against the award to the Labour Court.

The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question thus depriving litigants of speedy justice. The enactment of section 93(5a) and (5b) of the Labour Act [Chapter 28:01] was meant to address this mischief.

Subsections 93(5a) and (5b) provide as follows:

“(5a) A labour officer who makes a ruling and order in terms of ss(5)(c)(this paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights), shall, as soon as practicable -

(a) Make an affidavit to that effect incorporating, referring to, or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) Lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not being earlier than thirty days from the date that the application is set down for hearing (the “return day” of the application) to do or pay what the labour officer ordered under ss(5)(c)(ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance or, after a hearing, the Labour Court grants the application for the order with or without amendment, the labour officer concerned shall, if the respondent does not comply fully, or at all, with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and, thereupon, the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court.”…,.

My interpretation of the two provisions cited suggests the following procedural steps;

(a) The labour officer, after making a ruling in terms section 93(5)(c)(ii) of the Labour Act [Chapter 28:01], makes an affidavit to that effect and attaches to it any evidence on which such ruling is based.

(b) The labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).

(c) The labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.

(d) Should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.

(e) On the date of hearing, (and presumably with the respondent in attendance), the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment.

(f) Thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order, (obtained in default of appearance by the respondent, or after a hearing by the Labour Court), for registration.

(g) Upon submission of the order to the relevant court for registration, it shall have the same effect, for purposes of enforcement, as any civil judgment of that court.

It is to be noted from the above, that only if the labour officer rules against the employer, or any person, will he or she be required to take the steps outlined in sections (5a) and (5b). In other words, the provisions do not confer, on the Labour Court, the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling). That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) of the Labour Act [Chapter 28:01] which specifically provides for a ruling like the one in casu in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'

Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer, which is made in favour of an employer and against an aggrieved employee. It follows that the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.

It is noted, further, that the wording of section (5b), albeit not specifically stating so, excludes the employee concerned from the confirmation proceedings. This is an employee who would have been an active party in, as well as the instigator of, the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her. In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.

It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests. Even if the nature of the hearing mentioned in section (5b) is not clear (the hearing is certainly not an appeal against nor a review of the Labour Officer's ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer's ruling), one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.

The employee, on these grounds can, in my view, properly apply to be joined to the confirmation proceedings in terms of Rule 33(2) of the Labour Court Rules, S.I.150/17. The joinder of a party mero motu by the court is not expressly provided for in Rule 33; however, I am nevertheless satisfied that this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court, in a deserving case, to order mero motu the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings. Such an order would ensure full compliance with the common law rule audi alteren partem.

The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities:

CILLIERS AC, LOOTS C and NEL HC, HERBSTEIN and VAN WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5^th edn, Juta & Co Ltd, Cape Town, 2009) vol. 1... explain non-joinder by stating as follows:

“A third party who has, or may have, a direct and substantial interest in any order the court might make in proceedings or if such an order cannot be sustained or carried into effect without prejudicing that party, is a necessary party and should be joined in the proceedings, unless the court is satisfied that such a person has waived the right to be joined….,. In fact, when such person is a necessary party in the sense that the court will not deal with the issues without a joinder being effected and no question of discretion or convenience arises.”…,.

The meaning of direct and substantial interest is explained at page 217 to 218 as follows:

“A 'direct and substantial interest' has been held to be 'an interest in the right which is the subject-matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation'. It is 'a legal interest in the subject matter of the litigation, excluding an indirect commercial interest only'. The possibility of such an interest is sufficient and it is not necessary for the court to determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter of the litigation but also in the outcome of it.”…,.

It hardly needs emphasis that, albeit not applicable in casu, an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome, therefore, in my view, confers requisite interest upon the employee to merit his or her joinder to the proceedings. The employee, in any case, would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed with or without amendment. The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can, and should, properly grant such an application, or, where it is not made, order mero motu that the employee be joined to the proceedings so as to be afforded an opportunity to make submissions in response to those of the respondent.

That the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates:

“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder, the court should raise it mero motu to safeguard the interest of third parties and it should decline to hear the matter until such joinder has been effected, or until the court is satisfied that the third parties have consented to be bound by the judgment or have waived their right to be joined.”

See HERBSTEIN and VAN WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5^th edn, Juta & Co Ltd, Cape Town, 2009) vol. 1….

When this is related to the circumstances of this case, it cannot, in my view, be contested that the joinder of the employee, Ms Khan, was necessary.

While it is noted in casu that the Labour Court found in favour of the employee, and, therefore, confirmed the draft ruling, the fact cannot be ignored that the court effectively heard evidence from one side of the dispute and not the other before making its determination. As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling. It then essentially weighed the respondent's submissions against what was contained in the affidavit of the labour officer and made its determination (before the court a quo the labour officer briefly repeated the facts of the dispute and the details of the award she had made).

The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the quantum of the award. Nor, however could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking that the employee had been accorded the unfair advantage of having her case 'argued' for her by the labour officer.

There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings:

(i) Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, section (5b) affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter. It is evident from section (5b) that, before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is, in reality, not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect. He cannot therefore be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation. Defending the labour officer's ruling should properly be the province of the person directly affected by it, that is, the employee concerned.

In my view, the Labour Court's confirmation, or non-confirmation, of the ruling, after effectively hearing one side of the dispute, is, at best, an irregularity, and, at worst, a travesty of justice.

(ii) Secondly, the procedure presupposes that a ruling made by the labour officer in favour of an employee will meet that employee's satisfaction. It shuts the door, for instance, on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that quantum in confirmation proceedings before the Labour Court. A joinder to the proceedings would accord the employee the opportunity to, as it were 'cross oppose' the confirmation proceedings in the desired respect.

(iii) Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court, for one reason or the other, the employee might wish to take up the matter on appeal. He would, however, be hamstrung by the fact that he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order on his or her behalf.

(iv) Fourthly, the confirmation proceedings trigger, or may trigger, a number of undesirable procedural consequences. One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent.

This is what happened in casu.

All too often this type of appeal has been set down without any input from the employee, or employees, concerned since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal. Equally, often, the respondent cited in the appeal, that is the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument. Although vexing, this situation does not come as a surprise to the court since there is no legal basis set for the labour officer's appearance.

Ordinarily, where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party. The point has already been made that the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee's knowledge. The injustice of such an outcome needs no emphasis.

Finally, the appearance of the labour officer, as the respondent, in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems. In such cases the question of the labour officer's competence to so appear has arisen. In particular, the question is asked as to whose interests he would be representing in the appeal and on what legal basis? It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.

Other aspects of the procedure suggested by sections (5a) and (5b) of section 93 of the Labour Act [Chapter 28:01] merit some comment.

Subsection (5b) makes it clear that the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept, as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court's confirmation of the labour officer's ruling.

Further, while section (5b) clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution? Without being cited as a party, there would be confusion as to whether the 'claimant', that is the employee, would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite locus standi, and, moreso, because section (5b) does not mandate him to do so. The danger of the Labour Court's order being rendered a brutum fulmen becomes real.

In conclusion, while one might argue in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view that the absurdities could not have been consciously intended by the legislature. The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court. The legislature might well wish to consider addressing this and the other concerns set out in this judgment.

DISPOSITION

When all is said and done, and in view of the foregoing, it is my finding that there was a fatal non-joinder of the employee, Ms Khan, to the proceedings a quo. Such proceedings can therefore not be allowed to stand.

In the result, the following order is made:

1. The appeal be and is hereby allowed.

2. The proceedings and judgment of the court a quo be and are hereby quashed.

3. The matter is remitted to the Labour Court for a re-hearing after the employee, Ms Khan, has been joined to the proceedings.

4. Each party shall bear its own costs.

HH241-18 : CLOVER LEAF MOTORS GROUP (PRIVATE) LIMITED vs BUTHOLEZWE ZHOU and PATRICE SHAYAMANO
Ruled By: CHITAKUNYE J

In Zimbabwe Broadcasting Holdings v Gono 2010 (1) ZLR 8 (H)…, GOWORA J…, stated that:- “Our law is to the effect that once an employee has been suspended or dismissed from employment, any benefits extended to such employee from that relationship cease. In Chisipite Schools Trust (Pvt) Ltd v Clark 1992 (2) ZLR 324 (S) GUBBAY CJ stated:- 'Pending the removal ...

SC30-20 : GODFREY TAPEDZA AND ZIMBABWE ENERGY WORKERS UNION AND OTHERS vs ZIMBABWE ENERGY REGULATORY AUTHORITY AND NATIONAL EMPLOYMENT COUNCIL FOR THE ENERGY INDUSTRY
Ruled By: GWAUNZA JA, HLATSHWAYO JA and PATEL JA

The sole issue for determination in this case is whether the first respondent is an employer within the energy industry and is thereby bound by the Collective Bargaining Agreement: Zimbabwe Energy Industry, Statutory Instrument 50 of 2012, S.I.50/2012 (“the CBA”).

The issue was placed before the Labour Court for determination and it found that the first respondent is not an employer in the energy industry and is thus not bound by the requisite Collective Bargaining Agreement: Zimbabwe Energy Industry, Statutory Instrument 50 of 2012, S.I.50 of 2012 (CBA).

This is an appeal against that decision.

The factual and legal basis upon which the appeal is founded is as follows:

The first to tenth appellants are members of the eleventh appellant (Zimbabwe Energy Workers Union), a worker's union which is a party to the Collective Bargaining Agreement. The first respondent is a statutory body established in terms of section 3 of the Energy Regulatory Act [Chapter 13:23] (“the Act”) The functions of the first respondent are spelt out in section 4 of the Energy Regulatory Act, and, in short, the first respondent's mandate is to regulate the energy industry.

The phrase "energy industry” is defined, in section 2 of the Energy Regulatory Act, as follows:-

“'energy industry' means the persons in Zimbabwe who, in the private or public sphere are concerned with the generation, procurement, distribution, transportation, transmission and production of energy to consumers thereof.”

On 27 January 2012, a Collective Bargaining Agreement was reached between the Zimbabwe Energy Industry Employers' Association, Zimbabwe Energy Workers Union (the eleventh appellant) and the ZESA Technical Employees' Association, for the period 1 January 2012 to 31 December 2012. The salary scales flowing from the Collective Bargaining Agreement were produced on 27 February 2012 and they were circulated to all employers, including the first respondent, for implementation. The first respondent communicated to the eleventh appellant (Zimbabwe Energy Workers Union) that it had fully complied with the Collective Bargaining Agreement in August 2012.

However, the first respondent later reneged from such compliance arguing that it did not belong to the energy industry and thus it could not be bound by the energy industry Collective Bargaining Agreement.

The first respondent's refusal to implement the Collective Bargaining Agreement ignited a dispute between the parties, which dispute was referred to conciliation. No settlement was reached and the matter was referred for arbitration.

The arbitrator found that the first respondent was bound by the Collective Bargaining Agreement. The first responded appealed against that decision on the ground that the arbitrator dealt with a dispute which fell under the exclusive jurisdiction of the Labour Court by virtue of section 46(a) of the Labour Act [Chapter 28:01] which provides that any dispute as to the extent or description of any undertaking or industry shall be referred to the Labour Court for determination.

The appeal was allowed and the arbitral award was set aside.

The appellants then made an application in term of section 46 of the Labour Act for the determination of whether the first respondent falls within the energy industry. The application was dismissed after the court had found that the first respondent does not fall within the energy industry and is not bound by the Collective Bargaining Agreement.

The present appeal was noted against the decision of the court a quo.

SC57-05 : FIRST BANKING CORPORATION LTD vs BALTHAZAR MARIMO
Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

This is an appeal against a judgment of the Labour Court in terms of which that court quantified the amount of damages payable by the appellant (“the Bank”) to the respondent (“Marimo”), in lieu of reinstatement.

The relevant factual background may be tabulated as follows:

1. On 1 May 1997, Marimo joined the Bank as the manager of the Retail Banking Division. He had previously worked for Barclays Bank for fifteen years and for the Commercial Bank of Zimbabwe for two years.

2. On 20 July 2001, the Bank, acting in terms of section 3(1)(a) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 1985 (published in Statutory Instrument 371 of 1985), suspended Marimo without pay and other benefits because it believed that he had committed an act of misconduct. On the same day, the Bank applied to a Labour Relations Officer for the authority to terminate Marimo's contract of employment.

3. On 30 January 2002, the Labour Relations Officer made the following determination:

“The officer determines that Mr Marimo must be reinstated without any loss of pay and benefits, and must be paid thirty-six months' wages as (an) alternative to reinstate(ment) on top of the back-pay in terms of case no. SC19-01.”

4. On 10 April 2002, Marimo submitted to the Labour Relations Officer a document in which he had quantified his back pay and benefits as being $4,048,933=29. In addition, he had quantified his damages in lieu of reinstatement as being $20,438,843=46 which sum represented his salary and benefits for thirty-six months. In the circumstances, the document indicated that the total sum being claimed by Marimo, from the Bank, was $24,487,776=75.

5. On 29 April 2002, after Marimo had registered the Labour Relations Officer's determination with the Provincial Magistrate's Court, the clerk of that court wrote to the Bank as follows:

“You are being advised that the above determination order has been registered with us in terms of section 96(2) of (the) Labour Relations Act, Chapter 28:01.

Would you, therefore, arrange for the payment of the said sum of $24,487,776=75 within ten days of the date of this notice, failing which a warrant of execution may be issued against your property for the recovery of same.”

6. On 23 May 2002, when the sum claimed from the Bank by Marimo had not been paid within the time stipulated by the clerk of the Provincial Magistrate's Court, a warrant of execution was issued on behalf of Marimo, and two motor vehicles belonging to the Bank were attached and removed from the Bank's premises by the Messenger of Court.

7. On 12 July 2002, the Bank filed a notice of appeal in the Labour Relations Tribunal (“the Tribunal”), now the Labour Court, seeking an order setting aside the determination made by the Labour Relations Officer on 30 January 2002. No cross-appeal was filed by Marimo challenging the determination made by the Labour Relations Officer.

On the same day, i.e. 12 July 2002, the Bank filed an Urgent Chamber application in the Tribunal seeking an order staying the execution of the Labour Relations Officer's determination and releasing the Bank's motor vehicles pending the determination of the appeal. An order to that effect was issued by the Tribunal on 15 July 2002.

8. On 4 December 2002, the Tribunal dismissed the Bank's appeal with costs. The Tribunal's order reads as follows:

“In the result, it is ordered:

1. That the appeal against the Labour Relations Officer's determination be and is hereby dismissed
with costs.

2. That the appellant (the Bank) is hereby ordered to reinstate the respondent (Marimo) with no loss of salary and benefits with effect from the date of suspension.

3. That, in the event that reinstatement is no longer an option, the appellant be and is hereby ordered to pay the respondent damages in lieu of reinstatement, the amount of which the parties may agree upon, failure of (failing?) which either party may approach the Tribunal for quantification.”

In issuing this order, the Tribunal overlooked the fact that the basis on which the damages in lieu of reinstatement were to be calculated had already been determined by the Labour Relations Officer, and that, as the Bank's appeal had been dismissed, the determination by the Labour Relations Officer remained intact.

9. On 21 October 2003, Marimo, relying upon the Tribunal's order issued on 4 December 2002, approached the Labour Court for a fresh quantification of his damages. On that day, he filed written submissions claiming much more than he had claimed before the Labour Relations Officer as damages in lieu of reinstatement. He claimed many more benefits than he had claimed in the document that he had submitted to the Labour Relations Officer on 10 April 2002. In addition, he claimed that the Bank was obliged to pay him his salary and benefits until he reached the retirement age of sixty-five years. He was then fifty years old.

10. On 15 June 2004, the parties appeared before the Labour Court and the Bank filed its written submissions. In those submissions, the Bank indicated that it was prepared to pay Marimo back-pay and benefits in the sum of $4,048,933=29, as quantified by Marimo in the document submitted by him to the Labour Relations Officer on 10 April 2002. In addition, the Bank indicated that it was prepared to pay six months salary and benefits amounting to $3,406,473=90 as damages in lieu of reinstatement. After hearing the parties, the President of the Labour Court reserved her judgment.

11. On 23 August 2004, the judgment was handed down. In the result, Marimo was granted almost everything he had claimed. That included back pay in the sum of $38,234,499=. Aggrieved by that result, the Bank appealed to this Court alleging serious misdirections on the part of the President of the Labour Court.

In its notice of appeal, the Bank prayed for an order setting aside the Labour Court's order, and remitting the matter to the Labour Court for a fresh quantification of the damages payable to Marimo by a different President of that court.

However, bearing in mind the fact that the matter has dragged on for about four years, I do not think that remitting it to the Labour Court would be the best thing to do in the circumstances. In any event, I believe that the matter may be put to rest at this stage on the basis of the evidence on the record.

Although fifteen grounds of appeal were set out in the Notice of Appeal, I believe that the appeal may be disposed of on the basis of one of those grounds. That ground is that the Labour Court erred and misdirected itself in holding that the quantification of damages was to be based on the order issued by the Tribunal on 4 December 2002 and not on the basis of the determination made by the Labour Relations Officer on 30 January 2002.

In my view, this is a valid argument.

As already stated, on 30 January 2002, the Labour Relations Officer ordered that Marimo be reinstated without any loss of pay and benefits and be paid thirty-six months wages as an alternative to reinstatement. Marimo was also to receive his back-pay.

There can be no doubt that Marimo accepted the Labour Relations Officer's determination and was quite happy with it.

I say so for a number of reasons:

(i) Firstly, on 10 April 2002, Marimo submitted, to the Labour Relations Officer, a document setting out the quantum of his back pay and benefits, which was $4,048,933=29, and the quantum of the
damages to be paid in lieu of reinstatement, which was $20,438,843=46. The sum of $20,438,843=46 represented Marimo's salary and benefits for thirty-six months, the period determined by the Labour Relations Officer. The total sum claimed by Marimo was, therefore, $24,487,776=75.

(ii) Secondly, after submitting, to the Labour Relations Officer, the document setting out the quantum of his damages, Marimo registered the Labour Relations Officer's determination with the Provincial Magistrate's Court in terms of section 96(2) of the Labour Relations Act [Chapter 28:01]. The effect of that registration was that, for purposes of enforcement, the determination had the effect of a civil judgment of the Magistrate's Court.

(iii) Thirdly, after the registration of the determination, the clerk of the Provincial Magistrate's Court wrote to the Bank calling upon it to pay the sum of $24,487,776=75 within ten days, and indicating that if it was not paid within that period a warrant of execution would be issued in order to attach the Bank's property and sell it. That letter was obviously written with Marimo's approval.

(iv) Fourthly, when the sum claimed was not paid within the stipulated period, Marimo caused a warrant of execution to be issued by the Magistrate's Court, and two motor vehicles, belonging to the Bank, were attached and removed from the Bank's premises by the Messenger of Court on 23 May 2002. The vehicles were only released after the Bank was granted an order for their release by the Tribunal.

(v) Finally, when the Bank noted an appeal to the Tribunal against the determination by the Labour Relations Officer, Marimo did not note a cross-appeal challenging the determination.

When the Bank's appeal was subsequently heard by the Tribunal it was dismissed with costs.

That meant that the determination by the Labour Relations Officer remained intact and that the total sum payable by the Bank, to Marimo, was $24,487,776=75. There was, therefore, no valid basis on which Marimo subsequently approached the Labour Court seeking a fresh quantification of damages, and his application should not have been entertained.

As far as the Bank is concerned, it would appear from the Labour Court's judgment that when the quantum of damages was debated in that court the Bank did not seriously challenge the quantum arrived at by the Labour Relations Officer. The same approach was adopted by the Bank in this Court.

Finally, with regard to costs, it seems to me that the most appropriate order is that each party should pay its own costs.

In the circumstances, the following order is made:

1. The appeal is allowed, with each party paying its own costs.

2. The order granted by the Labour Court is set aside, and the following is substituted:

“(a) The application for a fresh quantification of damages is dismissed with no order as to
costs.

(b) First Banking Corporation Limited shall pay, to Marimo, the sum of $24,487,776=75, together with interest at the prescribed rate from 30 January 2002 to the date of payment in full.”

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

Referring to paragraph 42 of Stanley Nhari v Robert Gabriel Mugabe Ors SC61-20, counsel for the respondents submitted that the procedure for dealing with an unfair labour practice is to be found in section 93(5) of the Labour Act. Paragraph 42 provides:“The procedure for dealing with an unfair ...

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

The procedure for dealing with an unfair labour practice is to be found in section 93 of the Labour Act.The unfair labour practice is handled by a labour officer who attempts conciliation. The officer may, by consent of the parties, refer the matter to arbitration, or, that failing, proceed in ...

HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J

Dispute of right is defined in section (2) of the Labour Act [Chapter 28:01] 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 section 8 of the Labour Act.“An employer…, commits an unfair ...

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

After hearing the parties on 9 March 2018, the court was of the unanimous view that the appeal was devoid of any merit and accordingly ordered as follows:“The appeal be and is hereby dismissed with costs. Full reasons will be available in due course.”The following are the reasons:BACKGROUND FACTSThe appellant ...

After hearing the parties on 9 March 2018, the court was of the unanimous view that the appeal was devoid of any merit and accordingly ordered as follows:

“The appeal be and is hereby dismissed with costs. Full reasons will be available in due course.”

The following are the reasons:

BACKGROUND FACTS

The appellant was employed by the respondent as a Human Resources Superintendent on 1 November 2006. He was based at the Head Office in Harare. In February 2009 he was transferred to Renco Mine. His contract of employment provided for, amongst other things, locality allowance, leave bonus, and a company vehicle which was to be fuelled and maintained by the company.

In February 2009, as happened nationwide, the respondent shifted from the use of the Zimbabwean dollar to the United States dollar when the Zimbabwean dollar became moribund.

On 19 February 2009, the respondent wrote a letter to the appellant notifying him, that, following the adoption of the United States dollar, his salary would be US$4,147=43 per month.

The letter was silent on allowances.

On 21 March 2009, through an office memorandum, all the respondent's employees were notified of the changes in their salaries and allowances. The memorandum provided, that, the respondent had implemented salary scales based on regional 'SADC' rates for employees in all grades. Consequently, transport and meals allowances, together with leave bonus payable when employees proceeded on annual leave, were to fall away with effect from 1 March 2009 for all employees in Grade 10 and above. Transport and meals allowances were also removed for employees in Grade 10 and above.

The respondent further indicated that the employees would be kept abreast of further changes.

Following the adoption of the United States dollar, the appellant was being paid a globular salary without any allowances. The respondent did not provide the appellant with the motor vehicle, but, rather, supplied him with fuel and paid for the maintenance of his personal car.

This was regardless of the fact that the respondent's contract of employment stated that he was entitled to allowances and a motor vehicle maintained by the company.

In June 2014, the appellant raised a complaint of unfair labour practice with the Labour Officer. He demanded payment of the following:

1. Outstanding locality allowance for the period from February 2009, when he was transferred to Renco Mine, up to the time when he made the complaint in June 2014;

2. Leave bonus from 2009 to 2013; and

3. Mileage for use of his personal motor vehicle from 1 March 2007 up to the time of the making of the claim.

At conciliation, the parties failed to reach a settlement and the matter was referred to arbitration....,.

Section 94 of the Labour Act [Chapter 28:01] provides as follows:

“94 Prescription of disputes

(1) Subject to subsection (2), no labour officer shall entertain any dispute or unfair labour practice unless -

(a) It is referred to him; or

(b) Has otherwise come to his attention;
within two years from the date when the dispute or unfair labour practice first arose.

(2) Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a labour officer.”

SC27-21 : HONEST CHAPANGURA and OTHERS vs KWEKWE CITY COUNCIL and DELIWE MAKOTA
Ruled By: GWAUNZA DCJ, GUVAVA JA and UCHENA JA

This is an appeal against the whole judgment of the Labour Court handed down on 1 August 2019, dismissing an application for the confirmation of a draft ruling of a Lbour Officer (second respondent), to the effect that transfer of the employees (appellants) from Kwekwe Brewery to the first respondent ...

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows;

The appellants are former employees of Kwekwe Brewery, a company duly incorporated in terms of the laws of Zimbabwe. The first respondent (Kwekwe City Council) is Kwekwe Brewery's sole shareholder. As a result of Kwekwe Brewery's financial difficulties, the first respondent entered into a management agreement with Limsol Trading which was to manage the affairs of Kwekwe Brewery for five (5) years between 2010 and 2015.

As early as 2011, Limsol Trading started experiencing viability problems in its management of Kwekwe Brewery.

In 2012, the first respondent applied for and was granted a Bank loan to support the financial position of Kwekwe Brewery. According to minutes of a meeting of 6 May 2016, on Kwekwe Brewery's financial position, the brewery owed the Bank USD53,000 and was making a loss of USD23,000 per month.

A decision was made to lay off all casual employees and reduce working hours of permanent employees with immediate effect.

Kwekwe Brewery was eventually closed.

To avoid loss of employment due to the brewery's closure, the appellants entered into and signed contracts of employment on transfer from Kwekwe Brewery to the first respondent.

They were, on 5 September 2016, offered jobs totally different from those they had with Kwekwe Brewery. For example, the first appellant (Honest Chapangura), who was a Marketing Manager with Kwekwe Brewery, was employed as a Debt Collection Supervisor Grade 4. The fourth appellant (Josiah Dhobha), who was a Production Manager with Kwekwe Brewery, was employed as a Municipal Policeman Grade B3.

They worked for the first respondent from 5 September 2016 to 19 October 2017 when they raised an issue of unfair labour practice with a labour officer.

The appellants lodged a complaint of unfair labour practice with the second respondent alleging that they had been transferred to the first respondent on less favourable terms and conditions in contravention of section 16(1) of the Labour Act [Chapter 28:01].

They alleged that the first respondent had unilaterally altered their contracts of employment upon transfer of an undertaking and that they were put under less favourable terms which had resulted in their salaries and other benefits being reduced.

They prayed that they be reinstated in their former jobs and the terms and conditions which applied to them before the transfer be restored.

In response to the complaint, the first respondent denied that there had been a transfer of an undertaking as envisaged by section 16(1) of the Labour Act.

It submitted, that, the undertaking (Kwekwe Brewery) had closed due to viability challenges. It therefore submitted, that, there was no undertaking which could be transferred in the circumstances. It averred that section 16(1) of the Labour Act was intended to apply to a situation where an undertaking or business is transferred to another person and that it was not intended to apply to a situation where employees are transferred to another organisation following the closure of the undertaking by which they were employed.

Alternatively, it was submitted, that, if indeed there had been a transfer of an undertaking, it had been one in which the appellants voluntarily agreed to terms and conditions which were less favourable than those they enjoyed before the transfer.

In determining the dispute between the parties, the second respondent found that there had been a transfer of an undertaking and ruled that the first respondent pay the appellants salaries equivalent to those they enjoyed before the transfer.

Thereafter, the second respondent, in compliance with the provisions of section 93(5a) and (b) of the Labour Act, applied to the court a quo for the confirmation of her draft ruling.

The first respondent opposed the application, arguing that there had been no transfer of an undertaking from Kwekwe Brewery to it. The first respondent argued that it was not legally possible for Kwekwe Brewery, which it owned, to be transferred to it. It argued that there was no change of ownership of the brewery.

After perusing documents filed of record and hearing the parties, the court a quo held, that, the facts of the matter did not support the claim that there had been a transfer or alienation of Kwekwe Brewery as an undertaking to the first respondent. It further held that it was not proved that the first respondent acquired the assets, liabilities, and total operations of Kwekwe Brewery, but that there had been a transfer of employees by way of the contracts of employment entered into by the parties.

As a result, it held that there had been no transfer of an undertaking and dismissed the application for the confirmation of the draft ruling.

Aggrieved by the decision of the court a quo, the appellants noted an appeal to this Court on the following grounds:

GROUNDS OF APPEAL

“1. The court a quo erred at law in holding that there was no transfer of an undertaking when this is clear in the circumstances of the case as envisaged in terms of section 16(1) of the Labour Act [Chapter 28:01].

2. The court a quo erred at law in giving section 16(1) of the Labour Act [Chapter 28:01] an unreasonable restrictive interpretation which interpretation defeats or contradicts the purpose the section was enacted to achieve when the court ruled that:

(i) There was a transfer of employees and not a transfer of assets which transfer of employees, on its own, is transfer of an undertaking.

(ii) First Respondent acquired no assets, no liabilities and no total operation of Kwekwe Brewery but such transfer of employees is transfer of assets and liabilities. No question was in issue on this.

(iii) There was a distinction between the facts in Mutare Rural District Council v Chikwena 2000 (1) ZLR 534 (S) when in actual fact there was no such distinction.”

The appeal raises two issues for determination:

(a) Whether or not the court a quo correctly found that there was no transfer of an undertaking in terms of section 16(1) of the Labour Act.

(b) Whether or not if a transfer took place the appellants accepted less favourable terms than those they enjoyed before the transfer.

SUBMISSIONS MADE BY THE PARTIES

Counsel for the appellants submitted that the court a quo erred by failing to give section 16(1) of the Labour Act a broader meaning in light of the words “in anyway whatsoever.”

Counsel for the appellants contended that the words “in anyway whatsoever” demonstrated that a transfer of an undertaking may take any form as long as there is a change of hands.

She argued that a transfer of employees from Kwekwe Brewery to the first respondent constituted a transfer of an undertaking as held in the case of Mutare Rural District Council v Chikwena 2000 (1) ZLR 534 (S).

She further averred that the first respondent unilaterally varied the appellants conditions of employment to less favourable conditions without consultation.

Counsel for the appellants asserted that this constituted a breach of section 16 of the Labour Act and prayed that the decision of the court a quo be vacated.

Counsel for the first respondent submitted that Kwekwe Brewery was not alienated or transfered as a going concern as it merely ceased operations due to viability challenges. He contended that the transfer of employees, alone, did not constitute a transfer of an undertaking as envisaged by section 16(1) of the Labour Act.

He further submitted, that, the court a quo did not decide on whether or not the appellants had agreed to less favourable terms and conditions than those they enjoyed before the alleged transfer which he submitted had a bearing on the relief sought by the appellants and was an issue which the court a quo was seized with.

Counsel for the first respondent prayed that the appeal be dismissed with costs as it was devoid of merit.

THE LAW

The law which the court a quo had to interpret and apply in determining whether or not to confirm the draft ruling related to the question: in what circumstances can an undertaking be said to have been alienated, or transferred, in terms of section 16(1) of the Labour Act?

Section 16(1) of the Labour Act reads as follows:

“16 Rights of employees on transfer of undertaking

(1) Subject to this section, whenever any undertaking in which any persons are employed is alienated or transferred in any way whatsoever, the employment of such persons shall, unless otherwise lawfully terminated, be deemed to be transferred to the transferee of the undertaking on terms and conditions which are not less favourable than those which applied immediately before the transfer, and the continuity of employment of such employees shall be deemed not to have been interrupted.”…,.

The critical words which determine the issue and have to be interpreted are “whenever any undertaking in which any persons are employed is alienated or transferred in any way whatsoever, the employment of such persons shall, unless otherwise lawfully terminated, be deemed to be transferred to the transferee of the undertaking.”

Section 16(1) of the Labour Act therefore simply means, when an undertaking/business is alienated or transferred, its employees whose employment is not otherwise lawfully terminated, are deemed to have been transferred with it to the transferee.

This means the undertaking/business must first be alienated or transferred to the transferee before the employees rights to continued employment can be deemed to have been transferred to the transferee.

The employees rights to continued employment under the transferee are, therefore, activated by the alienation or transfer of the undertaking/business to the transferee.

The words “whenever any undertaking in which any persons are employed is alienated or transferred” are significant.

It is the undertaking's/business alienation or transfer which triggers the simultaneous transfer of the employees to the transferee. The employees transfer arises from their being employees of the alienated or transferred undertaking/business.

The law on what is an undertaking and how it is alienated or transferred was discussed in the case of Mutare Rural District Council v Chikwena 2000 (1) ZLR 534…, where GUBBAY CJ said:

“The word undertaking is of variable meaning. Basically, the idea it conveys is that of a business or enterprise. In the Australian case of Top of the Cross (Pty) Ltd v Federal Commissioner of Taxation (1980) 50 FLR 19, WOODWARD J said at 36:

'Frequently, the word undertaking is used in circumstances where it could be interchanged with either the word business or enterprise and with varying shades of meaning. Sometimes it is used alone, sometimes by way of distinction from the assets of the owner and sometimes as a synonym for business. Sometimes it is used to embrace the property which is used in connection with the undertaking as well as the debts and liabilities which have arisen in relation thereto.'

In this matter, it is indisputable that what was transferred to CIG was the appellant's viable and separate business, the Mutare Furniture and Hardware factory. It had its own set of employees under the control and supervision of production and factory managers. It was an undertaking as contemplated and sanctioned by section 16(1).”

At p537F to 538C GUBBAY CJ compared our section 16(1) of the Labour Act with section 197 of the South African Labour Relations Act 1995, which was interpreted in Manning v Metro Nissan (1998) 19 ILJ 1181 (LC) at 1189 as follows:

“What these subsections provide for is that a business, trade, or undertaking is sold as a going concern; the purchaser, for all intents and purposes, vis-a–vis the employees of the business, trade, or undertaking purchased, puts himself in the place of the seller. Consequently, all the rights and obligations that existed between, the seller and its employees are transferred, by operation of this section, to the purchaser.”…,.

The phrase “in any way whatsoever,” concerning alienation or transfer of an undertaking, in section 16(1) of the Labour Act, does not connote a broader interpretation as submitted by counsel for the appellants because the mere transfer of the employees cannot be said to be a transfer of an undertaking.

Several considerations must be taken into account.

This was aptly illustrated in Aviation Union of South Africa and Another v South African Airways (Pty) Ltd and Others 2012 (1) SA 321 (CC), where it was held that “for a transfer to be established, there must be components of the original business which are passed on to the third party.”

These components would include, but not be limited to, the taking over of employees, assets (tangible or intangible), customers, debtors, and the business would maintain or continue its activities whilst retaining its identity.

Therefore, the mere transfer of employees from one employer to another, on its own, cannot be taken to constitute a transfer of an undertaking.

While the Labour Act seeks to protect the rights of both the employer and the employee, for section 16(1) of the Labour Act to apply, there must be an alienation or transfer of an undertaking/business in any way whatsoever and such transfer is not of employees alone.

In Mutare Rural District Council v Chikwena 2000 (1) ZLR 534 (S), this Court held that a business, trade, or undertaking must be transferred as a going concern “that is to say, what is taken over must be an active and operating business, trade, or undertaking.”

These sentiments were fortified in the South African case of National Education Health and Allied Workers Union (NEHAWU) v University of Cape Town and Others 2003 (3) SA 1 (CC), where the Constitutional Court stated that:

“…, in deciding whether a business has been transferred as a going concern, regard must be had to the substance and not the form of the transaction. A number of factors will be relevant to the question whether a transfer of a business as a going concern has occurred, such as the transfer or otherwise of assets, both tangible and intangible, whether or not the workers are taken over by the new employer, whether customers are transferred, and whether or not the same business is being carried on by the new employer.

What must be stressed is that this list of factors is not exhaustive and that none of them is decisive individually. They must all be considered in the overall assessment and therefore should not be considered in isolation…,.”…,.

Similar sentiments were echoed in the case of Spijker Gebroeders Benedik Abattoir v Alfred Benediken Zonen [1986] 2 CMLR 296, where it was stated that:

“The decisive criterion is whether the business in question retains its identity. Consequently, a transfer of an undertaking, business, or part of a business does not occur merely because its assets are disposed of. Instead, it is necessary to consider whether the business was disposed of as a going concern, as would be indicated, inter alia, by the fact that its operations were actually continued or resumed by the (new) employer, with the same or similar activities…,.”…,.

The provisions of section 16(1) of the Labour Act are subject to the provisions of the whole section. Subsections 2 to (3) provide as follows:

“(2) Nothing in subsection (1) shall be deemed —

(a) To prevent the employees concerned from being transferred on terms and conditions of employment which are more favourable to them than those which applied immediately before the transfer, or from obtaining terms and conditions of employment which are more favourable than those which applied immediately before, or subsequent to the transfer;

(b) To prevent the employees concerned from agreeing to terms and conditions of employment which are in themselves otherwise legal and which shall be applicable on and after the transfer, but which are less favourable than those which applied to them immediately before the transfer:

Provided that no rights to social security, pensions, gratuities or other retirement benefits may be diminished by any such agreement without the prior written authority of the Minister;

(c) To affect the rights of the employees concerned which they could have enforced against the person who employed them immediately before the transfer, and such rights may be enforced against either the employer or the person to whom the undertaking has been transferred or against both such persons at any time prior to, on, or after the transfer;

(d) To derogate from or prejudice the benefits or rights conferred upon employees under the law relating to insolvency.

(3) It shall be an unfair labour practice to violate or evade or to attempt to violate or evade in any way the provisions of this section.”

A reading of the whole section, besides adding that employees can get more favourable conditions or agree to less favourable conditions, and the preservation and non-diminution of rights to social security, pensions, gratuities, or other retirement benefits, without the Minister's authority, and the non-derogation of employees rights under the law of insolvency, does not change the interpretation discussed above.

The meaning remains, that, it is the alienation or transfer of the undertaking/business which triggers the transfer of employees.

There must, therefore, be alienation or a transfer of an undertaking before employees of the transferred undertaking can claim to have become employees of the transferee in terms of section 16(1) of the Labour Act.

WHETHER OR NOT THE COURT A QUO CORRECTLY FOUND THAT THERE WAS NO TRANSFER OF AN UNDERTAKING IN TERMS OF SECTION 16(1) OF THE LABOUR ACT

Counsel for the appellants sought to rely on the case of Mutare Rural District Council v Chikwena 2000 (1) ZLR 534 (S) to advance an argument that the transfer of employees of an undertaking can, on its own, constitute the alienation or transfer of an undertaking.

She also argued that the facts of this case are on all fours with those of Mutare Rural District Council v Chikwena 2000 (1) ZLR 534 (S).

She did not correctly understand the facts of the case.

In that case, Mutare Rural District Council formed a limited liability company known as Council Income Generator (Private) Limited (CIG) to which it transferred its interests in Mutare Furniture and Hardware factory. Mutare Rural District Council held all the shares in Council Income Generator (Private) Limited (CIG). It, however, eventualy sold all its shares in Council Income Generator (Private) Limited (CIG) to third parties who became the transferees of Council Income Generator (Private) Limited (CIG) and took over its employees.

In this case, Kwekwe City Council (the first respondent) did not sell its shares in Kwekwe Brewery. It remains the sole shareholder of Kwekwe Brewery.

As explained above, Kwekwe Brewery was closed and stopped operating - without being alienated or transferred to a third party. Its employees signed new contracts of employment with the first respondent which are totally different from those they had with Kwekwe Brewery.

The undertaking that the appellants worked for before their new contracts with the first respondent was not transferred to the first respondent. There was, therefore, no alienation or transfer of Kwekwe Brewery to the first respondent.

As a result, there was no transfer of its employees to the first respondent in terms of section 16(1) of the Labour Act.

A reading of the record establishes that Kwekwe Brewery has always been owned by the first respondent; therefore, it is not correct to say that the business changed hands. The first respondent could not be both a transferor and a transferee of Kwekwe Brewery. It could not alienate or transfer its business to itself.

The court a quo, therefore, correctly dismissed the application to confirm the second respondent's draft ruling to the effect that the appellants had been transferred to the first respondent in terms of section 16(1) of the Labour Act and were entitled to the salaries and benefits that they enjoyed as employees of Kwekwe Brewery....,.

The appeal has no merit and must be dismissed. Costs will follow the result.

In the result, the appeal is dismissed with costs.

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

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.

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

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”) (A.B. Morar, A.J. Bosch. E. Eston, E. Gavaza, A.J. Van Rensburg, R.T. Karidza, L. Mabika, D.I. Mackintosh, I. Middleton and Mushoriwa).

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 section 93(5)(c) of the Labour Act [Chapter 28:01] (“the Act”).

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 States 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.

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 Triangle Senior Staff Pension Fund (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 Triangle Senior Staff Pension Fund (TSSPF). The 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.

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 Triangle Senior Staff Pension Fund (TSSPF) in the High Court.

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.

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 section 94 of the Labour 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.

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 moreso 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

Having made the above draft ruling, the Labour Officer referred the same to the Labour Court for confirmation in terms of section 93(5)(a) of the Labour 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.

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 section 94(2) of the Labour Act, the claims had not prescribed.

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 section 94(2) of the Labour 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

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 the 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.

In its heads of argument before this Court, the appellant has submitted as follows:

Section 94 of the Labour 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.

The respondents pray that the appeal be dismissed with costs. They have submitted as follows:

In terms of section 94(2) of the Labour 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.

During oral argument, counsel for the respondents raised an objection to the submission by the appellant's counsel, that section 94(2) of the Labour 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 section 94(2) of the Labour 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 section 6(1)(e) of the Labour 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 section 8 of the Labour 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.

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 the 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 section 94(2) of the Labour 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

From the foregoing, it seems to me that four issues arise for determination by this Court:

(i) 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.

(ii) 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.

(iii) The third is whether the court a quo correctly confirmed the order directing the appellant to pay additional tax losses by the respondents.

(iv) 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

The contentious issue that arises is whether the matter referred by the respondents to the Labour Officer was so referred as a mere dispute or as an unfair labour practice, and, whether, in terms of section 94(2) of the Labour 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 section 8 of the Labour 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.

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 section 93 of the Labour Act.

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 the Triangle Senior Staff Pension Fund (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.”

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 section 94(2) of the Labour Act.

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 subsection (2) of section 94 of the Labour 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 sub-section (2) of section 94 of the Labour Act 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

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 section 94 of the Labour 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 subsection (2) of section 94 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 sub-section (2) of the section means.

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.”

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) of the Labour Act 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.

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 section 94(2) of the Labour Act, the claims, even those that arose beyond the period of two (2) years, were not prescribed.

WHETHER THE COURT A QUO CORRECTLY FOUND THAT THE APPELLANT WAS LIABLE TO PAY THE BENEFITS

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.

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.”

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 (S)…,.; 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

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.

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.

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

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.

In my view, there is no merit to the appellant's submission in this regard.

Section 93(5b) of the Labour 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."

In all the circumstances, therefore, I find nothing improper in the manner in which the court a quo handled the confirmation proceedings.

DISPOSITION

In light of section 94(2) of the Labour 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.

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.

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Zimbabwe

Arbitration re: Conciliation, Disputes of Interest and Right & Confirmation and Registration of Labour Officer Rulings

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

SC200-97 : MUWENGA vs PTC
Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

SC10-17 : MEDICINES CONTROL AUTHORITY OF ZIMBABWE vs NATHAN TORONGA and NOZIPHO MATSHITSE and BELLINGTON MUDYAWABIKWA and KUMBIRAI KAJONGWE
Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

HH71-15 : OK ZIMBABWE vs CLARIS MADZINGA
Ruled By: UCHENA J and MWAYERA J

View Appeal
HH626-14 : THE NATIONAL EMPLOYMENT COUNCIL FOR THE CONSTRUCTION INDUSTRY vs ZIMBABWE NANTONG INTERNATIONAL (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

HH241-18 : CLOVER LEAF MOTORS GROUP (PRIVATE) LIMITED vs BUTHOLEZWE ZHOU and PATRICE SHAYAMANO
Ruled By: CHITAKUNYE J

SC30-20 : GODFREY TAPEDZA AND ZIMBABWE ENERGY WORKERS UNION AND OTHERS vs ZIMBABWE ENERGY REGULATORY AUTHORITY AND NATIONAL EMPLOYMENT COUNCIL FOR THE ENERGY INDUSTRY
Ruled By: GWAUNZA JA, HLATSHWAYO JA and PATEL JA

SC57-05 : FIRST BANKING CORPORATION LTD vs BALTHAZAR MARIMO
Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

SC27-21 : HONEST CHAPANGURA and OTHERS vs KWEKWE CITY COUNCIL and DELIWE MAKOTA
Ruled By: GWAUNZA DCJ, GUVAVA JA and UCHENA JA

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

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Law Portal Zimbabwe

Arbitration re: Conciliation, Disputes of Interest and Right & Confirmation and Registration of Labour Officer Rulings

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

SC200-97 : MUWENGA vs PTC Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

SC10-17 : MEDICINES CONTROL AUTHORITY OF ZIMBABWE vs NATHAN TORONGA and NOZIPHO MATSHITSE and BELLINGTON MUDYAWABIKWA and KUMBIRAI KAJONGWE Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

HH71-15 : OK ZIMBABWE vs CLARIS MADZINGA Ruled By: UCHENA J and MWAYERA J

View Appeal HH626-14 : THE NATIONAL EMPLOYMENT COUNCIL FOR THE CONSTRUCTION INDUSTRY vs ZIMBABWE NANTONG INTERNATIONAL (PRIVATE) LIMITED Ruled By: CHIGUMBA J

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

HH241-18 : CLOVER LEAF MOTORS GROUP (PRIVATE) LIMITED vs BUTHOLEZWE ZHOU and PATRICE SHAYAMANO Ruled By: CHITAKUNYE J

SC30-20 : GODFREY TAPEDZA AND ZIMBABWE ENERGY WORKERS UNION AND OTHERS vs ZIMBABWE ENERGY REGULATORY AUTHORITY AND NATIONAL EMPLOYMENT COUNCIL FOR THE ENERGY INDUSTRY Ruled By: GWAUNZA JA, HLATSHWAYO JA and PATEL JA

SC57-05 : FIRST BANKING CORPORATION LTD vs BALTHAZAR MARIMO Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL Ruled By: MUREMBA J

View Appeal SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS Ruled By: MAKONI J

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

SC27-21 : HONEST CHAPANGURA and OTHERS vs KWEKWE CITY COUNCIL and DELIWE MAKOTA Ruled By: GWAUNZA DCJ, GUVAVA JA and UCHENA JA

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

Categories

Law Portal
Zimbabwe

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

SC200-97 : MUWENGA vs PTC
Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

SC10-17 : MEDICINES CONTROL AUTHORITY OF ZIMBABWE vs NATHAN TORONGA and NOZIPHO MATSHITSE and BELLINGTON MUDYAWABIKWA and KUMBIRAI KAJONGWE
Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

HH71-15 : OK ZIMBABWE vs CLARIS MADZINGA
Ruled By: UCHENA J and MWAYERA J

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HH626-14 : THE NATIONAL EMPLOYMENT COUNCIL FOR THE CONSTRUCTION INDUSTRY vs ZIMBABWE NANTONG INTERNATIONAL (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

HH241-18 : CLOVER LEAF MOTORS GROUP (PRIVATE) LIMITED vs BUTHOLEZWE ZHOU and PATRICE SHAYAMANO
Ruled By: CHITAKUNYE J

SC30-20 : GODFREY TAPEDZA AND ZIMBABWE ENERGY WORKERS UNION AND OTHERS vs ZIMBABWE ENERGY REGULATORY AUTHORITY AND NATIONAL EMPLOYMENT COUNCIL FOR THE ENERGY INDUSTRY
Ruled By: GWAUNZA JA, HLATSHWAYO JA and PATEL JA

SC57-05 : FIRST BANKING CORPORATION LTD vs BALTHAZAR MARIMO
Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

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SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

SC27-21 : HONEST CHAPANGURA and OTHERS vs KWEKWE CITY COUNCIL and DELIWE MAKOTA
Ruled By: GWAUNZA DCJ, GUVAVA JA and UCHENA JA

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA