Zimdollar dispute referred back to Labour Court

THE case in which 39 workers, who were unlawfully dismissed from employment nine years ago, are seeking to recover their damages in United States dollars was yesterday referred back to the Labour Court.

Chief Justice Godfrey Chidyausiku made the ruling in the dispute pitting Fleximail (Private) Limited and its 39 workers after both parties legal counsel agreed to the fact that the matter should have been dealt by Labour Court and not the High Court.

Following their dismissal in 2005, the workers approached the High Court after failing to get payment in US dollars and Justice Andrew Mutema in 2011, ruled in the workers' favour.

That prompted Fleximail to appeal against the decision at the Supreme Court.

At the hearing both parties agreed that the matter be referred back to the Labour Court for quantification.

Although parties were in agreement on the way forward they were not able to agree on the details of a consent order.

The Supreme Court bench lead by Chief Justice Chidyausiku had no option but to decide the matter.

It set aside the High Court decision for lack of jurisdiction saying the competent court to handle the case should have been the Labour Court.

"There being no valid appeal to this court from a court of competent jurisdiction the cross-appeal falls away. The matter is hereby remitted to the Labour Court for determination," ruled Chief Justice Chidyausiku.

He also noted in his ruling that the determination of the dispute by the Labour Court was necessary before the Supreme Court could be seized with the matter.

"Consequently, it was agreed between the parties that the matter be referred to the Labour Court for determination and that in the event of either party not been satisfied with the determination of the Labour Court, the aggrieved party appeals to the Supreme Court," he said.

Other members of the bench, Deputy Chief Justice Luke Malaba and Justices, Vernanda Ziyambi, Paddington Garwe and Bharat Patel unanimously concurred with the ruling.

Now the Labour Court will be asked to determine if it has the power to order payment in the operational currency (United State dollars) of debts incurred under the Zimbabwe dollar era.

The court will also determine whether the principle of currency nominalism can apply in the circumstances of this case among other issues.

Government introduced the multi-currency system in February 2009, but it did not indicate the rate that should be used to convert debts and other liabilities denominated in Zimbabwe dollars to the international currencies.

This created a legal problem that has resulted in many cases flooding the courts without a proper legal position of how creditors will recover their debts.

Workers who are owed Zimbabwean dollars by their employers as well as several other individuals and companies, who are owed debts dating back to the pre-February 2009 period, are set to benefit from the outcome of the case.

When the matter was brought to the Supreme Court, parties wanted the court to interpret the law to end the confusion that is reigning supreme in legal and business circles.

Fleximail dismissed the 39 workers in 2005 after finding them guilty of misconduct.

The workers challenged the decision and took the matter up to the Labour Court in 2007 where they got an order for reinstatement.  If reinstatement was no longer possible, the workers were given an option of damages.

Fleximail indicated that it wanted to pay the workers and tendered a cheque of Z$12 594 (revalued) on February 11, 2009 when the multi-currency system was already in place.

The workers rejected the Zimbabwe dollar damages because the currency had become moribund. They returned the cheque that had been tendered by Fleximail.

Mr Caleb Mucheche and Mr Munyaradzi Gwisai appeared for the 39, while Advocate Fadzai Mahere acted for Fleximail.

An independent lawyer Advocate Thabani Mpofu assisted with legal opinion as a friend of the court (amicus curiae).