Drum City (Private) Limited v Brenda Garudzo

The appellant (Drum City) summarily dismissed its employee, Ms Umarah Khan, on 15 April 2015 for misconduct including theft, after finding she had two prior written warnings. Terminal benefits of US$3,986.61 were paid. Ms Khan filed an unfair labour practice complaint under s 93 of the Labour Act, claiming she was not properly investigated or granted a hearing, and seeking damages of US$23,253.34. The parties disputed her monthly salary (appellant claimed US$750, Ms Khan claimed US$1,500). The labour officer (respondent Garudzo) ruled in Ms Khan's favour, finding the dismissal unfair and ordering reinstatement without loss of pay or alternatively damages of US$9,000. The labour officer applied to the Labour Court under s 93(5a) for confirmation of the draft ruling, citing only the appellant as respondent without joining Ms Khan. The Labour Court confirmed the ruling after hearing the appellant's opposition. Ms Khan was not cited in either the Labour Court proceedings or the appeal to the Supreme Court.

• Whether the Labour Court erred in confirming the labour officer's award without fully addressing the legal principles applicable to damages
• Whether the labour officer's ruling was properly made given the allegations of misconduct against the employee
• Whether there was a fatal non-joinder of the employee (Ms Khan) in the confirmation proceedings before the Labour Court
• Whether the Labour Court has jurisdiction to confirm draft rulings made against employees under s 93(5a) and (5b) of the Labour Act
• Whether the Labour Court should order joinder of an interested employee mero motu in confirmation proceedings
• The proper interpretation and procedural requirements of sections 93(5a) and (5b) of the Labour Act

The appeal was allowed. The proceedings and judgment of the Labour Court were quashed. The matter was remitted to the Labour Court for a rehearing after Ms Khan is joined to the proceedings. Each party was ordered to bear its own costs.

An employee in whose favour a labour officer makes a draft ruling under s 93(5)(c)(ii) of the Labour Act has a direct and substantial interest in confirmation proceedings under s 93(5a) and must be joined to such proceedings before the Labour Court. The failure to join such an employee constitutes a fatal non-joinder that renders the confirmation proceedings invalid. The Labour Court has the power and duty to order joinder of the employee mero motu to safeguard the employee's interests and ensure compliance with the audi alteram partem principle. The Labour Court lacks jurisdiction under s 93(5a) and (5b) to confirm draft rulings made in favour of employers and against employees.

The Court observed that the legislature may not have fully considered the practical implications and absurdities arising from ss 93(5a) and (5b) and suggested that the legislature might wish to consider addressing the concerns identified in the judgment through amendment. The Court noted that the provision was enacted to address delays in labour dispute resolution but created new procedural problems. The Court commented that the labour officer acts only as a nominal applicant in confirmation proceedings with no personal interest in the outcome and cannot be expected to defend the ruling or represent the employee's interests. The Court also noted the confusion regarding who has authority to execute confirmation orders that are registered with the relevant court for enforcement purposes.

This case is significant in Zimbabwean labour law as it clarifies the proper procedure for confirmation of labour officers' rulings under s 93(5a) and (5b) of the Labour Act. It establishes that employees who benefit from labour officers' rulings must be joined to confirmation proceedings before the Labour Court, either on application or mero motu by the court. The judgment addresses significant procedural gaps and absurdities in the statutory framework, including: the Labour Court's lack of jurisdiction to confirm rulings made against employees; the necessity of joining employees to protect their rights to be heard; the enforcement difficulties arising from non-joinder; and the potential for injustice where awards are varied or set aside without the employee's knowledge or participation. The judgment provides comprehensive guidance on the procedural steps required under the confirmation process and signals to the legislature the need for amendment of the provisions to address identified shortcomings.