The judicial mechanism is designed to bring finality to labour matters.
REQUEST MACHIMBIRA
In exercising this option, parties to an employment relationship often lodge disputes before the Labour Court. It is therefore important to explore the legal position pertaining to Labour Court appeals.
Section 89 of the Labour Act Chapter 28.01 outlines the functions, powers and jurisdiction of the Labour Court which among them include, hearing and determining applications and appeals in terms of the Labour Act or any other enactment.
Nevertheless, I have sadly observed that the judicial process is now being abused by parties as a weapon to delay dispensing justice. In the case of appeals against arbitral awards, Section 98(10) of the Labour Act, Chapter 28.01 provides that “An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator…”
It is important to examine the question, “what constitutes a question of law?” Can someone lodge an appeal against an arbitral award simply because he is not happy with the outcome? In Mhisva vs Rainbow Tourism Group Limited 2009 (2) ZLR 33 at 38, the Honourable Justice Sandura JA as he then was, quoted with approval MUZUVA vs UNITED BOTTLERS (PVT) LTD 1994 (1) ZLR 217 (S) at 220 D-F where Gubbay CJ as he then was, said a question of law has three distinct, though related meanings which are;
“A question which the law itself has authoritatively answered to the exclusion of the right of the Court to answer as it thinks fit in accordance with what is considered to be the truth and justice of the matter.”
“A question as to what the law is. An appeal on a question of law means one in which the question for argument and determination is what the true rule of law is on a certain matter.”
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“A question which is in the province of the judge and not the jury.”
It therefore appears that appeals purely on substantive grounds would not constitute a question of law, and such an appeal would be improperly before the Labour Court in respect of an appeal against an arbitral award.
Nevertheless, judicial precedence appears to have made exceptions to the aforementioned provision on appeals to the Labour Court. In National Foods versus Magadza SC105/95, the court held that a gross misdirection on the facts amounts to a misdirection in law. Page 4 of the judgement stated that:
“It is true that the court only has jurisdiction to hear an appeal from the tribunal on a point of law. But clearly if there is a serious misdirection on the facts that amounts to a serious misdirection in law. The giving of reasons that are bad in law constitutes a failure to hear and determine according to law”.
This case provides relevant precedence to the fact an appeal to the Labour Court can be made against an Arbitral Award if such an award was riddled with verifiable misdirection on the facts of the case.
Request Machimbira is the Editor-In-Chief of the Labour Dimensions Magazine, Zimbabwe’s premier publication on labour matters. He is also Group CEO for Proficiency Consulting Group International. For feedback, phone 08644 070654, 0772693404, 0776228575 or email [email protected]. Website: www.proficiencyinternational.com
