MOYO v GWINDINGWI NO & ANOR 2011 (2) ZLR 368 (H)

Flynote

Employment — Labour Court — exclusive jurisdiction over labour matters — High Court only having jurisdiction where cause of action and remedy not provided for in Labour Act [Chapter 28:01] — possession by employee of employer's property — intimately connected with contract of employment, giving Labour Court jurisdiction

Practice and procedure — review — need to exhaust domestic remedies — High Court slow to exercise review jurisdiction unless all domestic remedies are exhausted — review of labour matters by High Court — code of conduct providing for an appeal to the Labour Court — such appeal a domestic remedy which must be exhausted before approaching the High Court

Headnote

The applicant had been dismissed from her employment in terms of procedures provided for in the employer's code of conduct. When her final internal appeal was dismissed, she was advised that her next appeal would be to the Labour Court. She did not appeal to the Labour Court as advised and in terms of the code of conduct; instead she filed an urgent application in the High Court. A provisional order was issued in her favour. The order interdicted the respondents from evicting the applicant from a company house belonging to her employer, which she occupied by virtue of her employment. The final relief sought was an order setting aside her dismissal and granting reinstatement without loss of salary or benefits. The respondents raised two points in limine, namely, that the applicant had not exhausted her domestic remedies and therefore has approached the wrong court; and that this being a purely labour dispute, the High Court did not have jurisdiction as in terms s 89(6) of the Labour Act [Chapter 28:01] the application should have been made to the Labour Court.

Held, that a court will be very slow to exercise its general review jurisdiction in a situation where a litigant has not exhausted the domestic remedies available to him, unless good reasons are shown for making an early approach. In so far as labour matters are concerned, domestic remedies will include an appeal to the Labour Court, where an appeal is provided for in the relevant code of conduct. "Domestic remedies" in casu were those remedies and the procedure set out in the code of conduct as being available to an aggrieved party to pursue. An appeal to the Labour Court from a decision of the employer's director of corporate services was provided for in the code of conduct. That appeal was a domestic remedy available to the applicant and it was capable of according the applicant effective redress. She had to exhaust that remedy.

Held, further, that the occupational right of the applicant in respect of the company house was intertwined with the employment contract. That did not constitute a special reason for by passing available domestic remedies and approaching the High Court early.

Held, further, that the Labour Court has exclusive jurisdiction in matters relating to suspension from employment, and where the possession of the employer's property by an employee is so interdependently linked to the contract that one cannot decide the one without deciding on the other, the Labour Court similarly has exclusive jurisdiction. The court has jurisdiction in all matters where the cause of action and remedy are provided for in the Labour Act [Chapter 28:01]. It is only where the cause of action and remedy exist at common law that the jurisdiction of the High Court is not ousted.