A. Timbine and Another v G.E.C. Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT
JUDGMENT NO. LC/H/475/2013
HARARE 25 SEPTEMBER AND
CASE NO.
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IN THE LABOUR COURT 			          JUDGMENT NO. LC/H/475/2013

HARARE 25 SEPTEMBER AND 		                         CASE NO. LC/H/227/13

11 OCTOBER 2013

In the matter between

A.TIMBINE AND ANOTHER			          -		Appellant

And

G.E.C. ZIMBABWE (PVT) LTD              	         -	         Respondent

Before The Honourables	L. Kudya: Judge								                   F.C. Maxwell: Judge

For Appellant 	-	 B. Makururu  (Unionist)

For Respondent	-	B. Wood  (Advocate)

MAXWELL F.C.:

This is an appeal challenging the decision of the Arbitrator that the dismissal of the Appellants was fair.  The grounds of appeal were,

The arbitrator grossly erred in failing to note that what the Appellants were requested to do was overtime work as opposed to what was being termed weekend work.

The arbitrator further erred in failing to note that overtime work is not compulsory.

The arbitrator further erred in holding that the work that was to be done was emergency work.

The arbitrator further erred in making a ruling on whether failing to sign the preparatory form constituted refusal to obey a lawful order when the issue was whether refusing to work constituted refusal to obey a lawful order.

The arbitrator further erred in failing to note that the dismissal was fair without giving considering (sic) whether the decision to dismiss was both substantially and procedurally fair.

In response the Respondent supported the Arbitrator’s decision and submitted that,

The first ground of appeal lacks merits.  The appellants were being asked to do overtime work during weekends.

The appellants upon being asked to work overtime were obliged to comply and they had no option, except to sign the forms as requested by the employer.

It was clearly set out by the respondent that the work to be done was emergency work and had to be attended to without delay as the company’s reputation was at stake, and the work was long overdue.  There is also stiff competition, and the respondent could not afford to lose customers.

Failure to sign the preparatory form could not be separated from refusal to work.  The fact still remains that the appellants disobeyed a lawful order.

The dismissal of the appellants in the circumstances of the case was fair.

At the hearing of this matter Respondent raised a point in limine that the matter was improperly before the court as the proceedings before the arbitrator were a nullity.  Appellants made a complaint to a Labour Officer because the determination of their appeal to the Works Council of the Respondent against their dismissal had not been handed down timeously.  The complaint was premised on Section 101 (6) of the Labour Act [Chapter 28:01] Respondent submitted that Section 101(6) was inapplicable and the Labour Officer did what she was precluded from doing by Section 101 (5) in that she intervened in a case that was subject of proceedings under a Code of conduct.  It was further submitted that neither the Labour Officer nor the arbitrator has appellate jurisdiction.

In response, Appellants maintained that there was nothing irregular about referring the matter to an arbitrator and accordingly the ruling by the arbitrator cannot be faulted.  They confirmed that the Works Council sat and failed to release the determination in reasonable time.  They argued that they could not appeal as there was nothing to appeal against.  Their matter had not been determined in time and their only recourse was conciliation.

Section 101 (6) states

“If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a Labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety three.”

Subsection 3 paragraph (e) states

“the notification to any person who is alleged to have breached the employment code that proceedings are to be commenced against him in respect of the alleged breach.”

Clearly the delay which will be subject to Section 101 (6) is a delay in the determination of the initial disciplinary proceedings.  The Appellants got it wrong to treat a delay in the determination of an appeal the same way as a delay in the determination of the initial proceedings.

A delay in the determination of an appeal should be dealt with in the manner spelt out by the Supreme Court in the case of Zimbabwe Revenue Authority v Lindiwe Mpindiwa SC 85/06.  At page 7 of the cyclostyled judgment Sandura JA (as he then was) said

“It seems to me that instead of appealing against a non-existent determination of the appeals committee Lindiwe should have sought a court order compelling the appeals committee to determine her appeal.  This she can still do, because the appeals committee has not yet determined her appeal.”

Similarly the Appellants should have sought a court order compelling  the Works Council to determine their appeal.

In the circumstances, the following order is made -

The point in limine is upheld.

The matter is truck off the roll with no order as to costs.

……………………………………….

F.C. Maxwell

JUDGE

.………………………………………. I agree

L. Kudya

JUDGE

Guni and Guni Legal Practitioners - Appellant’s Legal Practitioners

Dhlakama B & Attorneys – Respondent’s Legal Representatives