Sibanda v Chairperson National Social Security Authority and Anor (HC 2111 of 2002) [2004] ZWBHC 90 (23 June 2004)

Judgment No. HB 90/2004 Case No. HC 2111/02 GLADYS SIBANDA Versus THE CHAIRPERSON – NATIONAL SOCIAL SECURITY AUTHORITY And NATIONAL SOCIAL SECURITY AUTHORITY IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 27 JUNE 2003 & 24 JUNE 2004 C P Moyo for the applicant I Chagonda for the respondent Opposed Application NDOU J: In this case I dismissed the application with costs. These are the reasons for doing so. Brief facts are that the applicant was an employee of the second respondent, the National Social Security Authority (hereinafter referred to a NSSA). She was dismissed after a disciplinary hearing into allegations that – a) she had left her work place and engaged herself in unauthorised activities which constitute a serious misconduct; b) her behaviour and/or actions were in total conflict with the express or implied conditions of her contract of service. Further she had incited other employees to engage in an unlawful job action. c) She had engaged in unlawful collective job action. A hearing was convened on 3 April 2002 in terms of the registered code of conduct of second respondent. The decision of the Disciplinary Hearing Committee was remitted to applicant and within the time stipulated by the code. She filed an appeal against the decision. HB 90/04 On 14 June 2002 the Appeals Committee, chaired by the first respondent, sat to deliberate on her appeal. After the meeting had been called to order by first respondent some members of the Appeals Court were asked to leave before the proceedings could continue. The two persons were the workers’ representatives. The applicant was then to be represented by a legal practitioner. Two objections were raised on behalf of the applicant. Firstly, it was pointed out that the Appeals Committee no longer had a quorum and was thus improperly constituted. Secondly, it was alleged that the first respondent was biased and as a result he should not sit in the chair. Both these objections were rejected. They were, however, placed on record. The hearing proceeded. During the course of the appeal hearing it was alleged that the minutes of the Hearing Committee were not an accurate record of what transpired at the hearing and that it was improper and irregular for the Appeals Committee to rely thereon. The main thrust of the respondent’s case was that the application was in the wrong forum. The applicant should have exhausted the domestic remedies provided for in the Labour Relations Act [Chapter 28:01] before approaching this court. The applicant was dismissed from the second respondent’s employ in terms of NSSA’s registered code of conduct. Section 101 of the Labour Relations Act, supra deals with situations where employers choose to discipline employees in terms of a code of conduct. Section 101(7) provides- “(a) A determination made in his case under a code; or (b) The conduct of any proceedings in terms of a code; May within such time and in such manner as may be prescribed, appeal against such determination or conduct to the Tribunal.” HB 90/04 In the circumstances, the applicant should have appealed to the Labour Tribunal. She has not bothered to provide reasons for not doing so. There is no attempt in the applicant’s founding affidavit to explain why she did not exhaust domestic remedies first before approaching this court. How can I exercise my discretion in her favour when she, herself, has not even bothered to seek my indulgence. I have to exercise this discretion judicially. It is trite that there is no statutory ouster of the jurisdiction of this court pending exhausting of the domestic remedies – Chikonye & Anor v Peterhouse 1999 ZLR 329 (S) at 330E-G; Tutani v Minister of Labour, Manpower Planning and Social Welfare and Ors 1987 (2) ZLR 88(H) at 95D; Musandu v Chairperson, Crests Disciplinary and Grievance Committee HH-115-94; Zikiti v United Bottlers 1998(1) ZLR 389(H); Nhidza v Unifreight Ltd SC-27-99 and Girjac (Pvt) Ltd v Mudzingara 1999(1) ZLR 243 (S). It is, however, trite law that a litigant should exhaust the domestic remedies provided for in the Labour Relations Act before approaching this court unless there are good reasons for exhausting the domestic remedies available. In other words, domestic tribunals should not be by-passed without good reason - Musandu v Chairperson Crest, supra, Tutani v Minister of Labour, supra, Mudakureva v Grain Marketing Board SC 15-98 at page 3 of the cyclostyled judgment; Girjac Services (Pvt) Ltd v Mudzingwa, supra; Chikomwe and Ors v Standard Chartered Bank SC- 152-98 and Munyira v Secretary of Education & Anor SC-214-98. In Masunda v Chairperson, Crest, supra SMITH J said- “In my view, this court should not be prepared to review the decision of a domestic tribunal merely because the aggrieved person had decided to apply to the court rather than by way of domestic remedies provided.” HB 90/04 In casu, the applicant has not advanced any reason why this court should hear this application before exhausting domestic remedies. In the absence of any reason it is difficult to exercise discretion in favour of hearing this matter. I have to decline to exercise my inherent jurisdiction. The problem faced by the applicant is currently a common one. There are extremely good reasons as to why this court should not hear such matters without the requisite reasons. First, the legislature has provided for the machinery upon which labour relations matters are handled and has created the Labour Relations Tribunal which is manned by a Chairperson capable of being a judge of this court who sits with other experienced members. Second, the Labour Relations Tribunal deals with employment matters only and by virtue of their experience in labour matters, they can deal with these matters much more expeditiously. Third, this court will create unnecessary backlogs by taking such matters from the specialised courts. Lastly, this court, unlike the Labour Relations Tribunal cannot deal with this matter on the merits and therefore, would not conclude the matter. The review procedure in this court will only focus on procedural irregularities. From the foregoing reasons I held the view that a case has not been made for me to exercise my inherent jurisdiction. Accordingly, the application was dismissed with costs. Majoko & Majoko, applicant’s legal practitioners Atherstone & Cook c/o Calderwood, Bryce & Hendrie & Partners, respondents’ legal practitioners