Edwin Mushoriwa v Zimbabwe Banking Corporation

The applicant was employed by the respondent as a personal banker until 8 April 2005 when his contract of employment was terminated. On 4 April 2001, the parties had concluded an agreement whereby the respondent granted the applicant sabbatical leave to perform his duties as a Member of Parliament for Zimbabwe on the Movement for Democratic Change (MDC) party ticket. The sabbatical leave was for the duration of that parliamentary term. In March 2005, after that term ended, the applicant stood for and won re-election to Parliament for a subsequent term. After the elections, he reported for duty on 3 April 2005 and was advised his services were no longer needed. On 9 April 2005, he received a letter advising that his contract of employment had been terminated. The applicant filed an application in the High Court seeking to set aside the termination of his employment. The application was filed on 9 March 2006, after the Labour Amendment Act 7 of 2005 came into effect on 30 December 2005.

• Whether the High Court has jurisdiction to hear the matter in light of section 89 of the Labour Act [Chapter 28:02] which confers exclusive first instance jurisdiction on the Labour Court in labour matters
• Whether the relief sought by the applicant constitutes a declaratory order (which the High Court retains jurisdiction to grant) or a review of an employment termination decision (which falls within the exclusive jurisdiction of the Labour Court)
• Whether the nature of relief is determined by what the applicant calls it or by the substance of what is actually sought
• Whether the applicant's constitutional rights under sections 20, 21, 81 and 89 of the Constitution were violated
• Whether the respondent followed the proper procedures under section 12 of the Labour Act and the registered code of conduct in terminating the applicant's employment

The application was dismissed with costs on the basis that the High Court lacked jurisdiction to hear the matter, which properly fell within the exclusive first instance jurisdiction of the Labour Court.

The binding legal principle is that where the substance of relief sought requires a court to review the manner in which an employer terminated an employee's contract of employment in light of the provisions of the Labour Act, such an application constitutes a review of a labour matter falling within the exclusive first instance jurisdiction of the Labour Court under section 89(6) of the Labour Act, regardless of whether the applicant frames the relief as a declaratory order of nullity. Courts must examine the process by which the relief is to be achieved, not merely the form of the draft order or the label attached to the application. A declaration of nullity of an employment termination that can only be granted after reviewing the employer's conduct against statutory requirements is a review matter reserved for the Labour Court, and the High Court's jurisdiction is ousted by statute in such circumstances.

The court noted that the founding affidavit suffered from grammatical inadequacy. The court also observed that the basis for the alleged nullity of the termination was not specified in the founding affidavit and only emerged in a terse sentence in the answering affidavit. The court indicated it would have addressed a second preliminary issue concerning whether the deponent to the opposing affidavit had the necessary authority to depose to the affidavit, but found it unnecessary to determine this issue in light of the jurisdictional finding. The court commented on the applicant's reliance on Masasi v PTC and Gumbo v PTC, noting that those authorities dealt with whether the Labour Act applied to PTC employees, not with the construction of section 12 as the applicant contended.

This case is significant in Zimbabwean labour law jurisprudence as it clarifies the scope of the jurisdictional ouster provision in section 89(6) of the Labour Act following the 2005 amendments. It establishes that courts must look to the substance of the relief sought rather than the label attached to it when determining jurisdiction. The judgment reinforces that the Labour Court has exclusive first instance jurisdiction over reviews of employment termination decisions, even when framed as applications for declaratory orders of nullity. The case demonstrates the strict interpretation of the statutory ouster clause and limits attempts to circumvent the Labour Court's exclusive jurisdiction by creative pleading. It builds on earlier decisions such as Tuso v City of Harare and Sibanda & Anor v Chinemhute N.O. & Anor in delineating the boundaries between High Court and Labour Court jurisdiction in labour matters.