Abraham Miyambwa v Peter Chirongoma & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/82/2020
HARARE, 4 MARCH 2020
CASE NO. LC/H/REV/85/19
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/82/2020

HARARE, 4 MARCH 2020			     CASE NO. LC/H/REV/85/19

AND 13 MARCH 2020

In the matter between:-

ABRAHAM MIYAMBWA					Applicant

And

PETER CHIRONGOMA 					1st Respondent

And

INNSCOR AFRICA (PVT) LTD t/a			2nd Respondent

BAKERS INN BREAD COMPANY

Before Honourable B.T. Chivizhe, Judge

For Applicant		Mr E. Muponga (Trade Unionist)

1st Respondent		In person

2nd Respondent 		In default

CHIVIZHE, J:

The matter was placed before me as an application for review. The application is premised on Rule 20 of the Labour Court Rules, 2017. Although the application was filed and served on 1st and 2nd Respondent on the 13th of September 2019 both 1st and 2nd Respondent had not filed Notices of Response to the application in terms of the Rules of Court. The Registrar of Court proceeded to set down the matter as compelled by Rule 28 of the Labour Court Rules, 2017: Statutory Instrument 150 of 2017. On the date of hearing however 1st Respondent appeared in person whilst 2nd Respondent was in default of appearance. This was despite proper service having been effected on the Legal Practitioners of the record.

APPLICATION FOR REVIEW

The application lodged is said to be premised on one ground under Section 92 EE (1) of the Labour Act i.e. absence of jurisdiction on the part of the arbitrator or adjudication authority. The Applicant through his application is seeking a review of the ruling issued by Mr Chirongoma, a Designated Agent with the National Employment Council for the Food and Allied Industries on 23 July,2019  in which he dismissed the Applicant’s claim on the basis that he lacked jurisdiction to hear the matter.  In his prayer the Applicant prays for the setting aside of the ruling and a directive by the Court to the same Designated Agent to continue to determine on the merits the claim as placed before him. Before I proceed to determine the issues a little background information is necessary.

BACKGROUND FACTS

The Applicant was employed by the 2nd Respondent in July 2011 as a confectioner.  In February 2017 Applicant was arraigned before a Disciplinary Committee to face misconduct charges following allegations of absenteeism. The disciplinary proceedings were convened under the 2nd Respondent Code of Conduct i.e. Innscor Africa Mass Market Food Division Code of Conduct 2002. The Applicant was found guilty and he was advised of his dismissal on the 27th of March, 2017. The Applicant noted an appeal against the verdict of the Disciplinary Committee on the 11th of April 2017. The 2nd Respondent however did not convene an appeal hearing. On 14th of June 2018 the Applicant followed up on his appeal. The 2nd Respondent through a letter by its Human Resources Manager dated 24th July 2018 indicated that there was no record of the appeal having been noted. The Applicant in response referred to attachments placed before the Human Resources Manager to prove that he had indeed noted an appeal and that he had followed up on the appeal. When there was no further response from 2nd Respondent the Applicant referred a claim of an unfair labour practice to the 1st Respondent in his capacity as Designated Agent for the National Employment Council. The referral was made on 23rd August 2018.  In so referring Applicant was relying on Section 12.7 of the relevant Code of Conduct. The record shows that the 1st Respondent notified the parties to attend a hearing on 10th of September 2018. It would appear that after this hearing the parties attempted an out of court settlement. When settlement failed however a request was made to the 1st Respondent to hand down a ruling on the basis of the written submissions placed before him. On the 23rd of July 2019 1st Respondent handed down a ruling the operative part of which reads as follows;

“In terms of Section 101 (5) “notwithstanding this part, but subject to subsection (6), no Labour Officer (and by determine Designated Officer) shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.” In legal of the dictates of Section 101 (6) and the case already cited above which compels the prejudiced party to apply to the Supreme Court for a mandatory interdict to compel the conduct of an appeal hearing. I rule that I have no jurisdiction to entertain the matter.”

The Applicant was aggrieved and noted the present application for review of the ruling by the 1st Respondent.

PARTIES SUBMISSIONS

At the hearing, Mr Maponga, for the Applicant, did not make any oval submissions deciding instead to adhere with his papers filed of record. Mr Chirongoma, the 1st Respondent had not filed any Notice of Response. He however indicated briefly that he adhered to his findings as made in his ruling in regards the issue of jurisdiction. He also referred to the authorities cited in his ruling to support his finding. Mr Maponga, in reply, affirmed the Applicants position that the 1st Respondent had erred in arriving at the conclusion he reached. 1st Respondent indeed had jurisdiction to entertain the matter as referred to him. The role of an Designated Agent was the same as that of Labour Officer. He ought therefore to have proceeded to entertain the matter on the merits. The Applicant’s prayer was for the application to succeed with no order as to costs.

THE LAW

Section 92 EE of the Labour Act, [Cap 28:01] provides for applications for review in the Labour Court. The grounds on which a party may seek review are outlined as follows,

“(a) Absence of jurisdiction on the part of the arbitrator or adjudicating

Authority concerned.

Interest in the case, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned.

Gross irregularity in the proceedings or the decision of the adjudication or adjudicating authority.”

The applicant in this case has sought to rely on ground (a) i.e. absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned. This is clearly an error on the part of the Applicant as he is seeking before the court the setting aside of 1st Respondent decision on the basis that he found in error that he had no jurisdiction. The Applicant ought clearly to have relied on ground of review (c) gross irregularity in the ruling/decision of the Designated Agent as this is what Applicant is alleging. On the basis of Supreme Court decision in Olivine Industries (Private) Limited vs (i) NEC for Detergents Edible Oils, Fats Industries,(ii) Detergents Edible Oils and Workers Union the error is not fatal. The court in this case went beyond the form of the ground of review as submitted and looked at the substance.

The gross irregularity raised by Applicant is that the Designated Agent found that he had no jurisdiction in the matter whereas he did have jurisdiction to determine the dispute.  On the basis of the facts contained in the record Applicant referred a claim for unfair labour practice to the Designated Agent.  On the basis of the law however what Applicant was essentially doing was referring his appeal which had been placed before the 2nd Respondent to the Designated Officer. This he was entitled to as the appeal had clearly been outstanding for a long time. 2nd Respondent did not before the 1st Respondent dispute the issue of the outstanding appeal hearing. 2nd Respondent position was that the Designated Agent was authorised to determine the appeal as provided for in terms of Section 101 (6) of the Labour Act [Cap 28:01]. This is apparent from 2nd Respondent statement of defence before 1st Respondent. 2nd Respondent submitted under paragraph 13 that;

“13.	The claimant terms his complaint an Unfair Labour Practice but it is rather a referral in terms of Section 102 (6) of the Labour Act of an appeal which was not disposed of within the mandatory thirty days. In his prayer the claimant asks for back pay and benefits from February 2017 to 31 December 2018 and damages in lieu of reinstatements for a period of two years”

Section 12.7 (b) and (c) under the Code itself clearly provides for the right of an appeal to the Appeals Committee and all proceedings (i.e. disciplinary and appeal) should be completed with 30 days. Where 30 days have lapsed and the appeal has not been heard the aggrieved party has a right to refer the matter to a Labour Relations Officer who will deal with the matter in terms of Section 93 of the Labour Relations Act [Cap 28:01]. Section 12.7 (b) and (c) reads as follows,

“b)	All proceedings of the Disciplinary and appeals should be completed within 30 days from the date of commencement of proceedings. 14 days should be within the disciplinary procedure and another 14 days within the appeal procedure.

c)	If 30 days elapse and the matter has not been dealt with, the alleged offender has the right to refer the matter to a Labour Relations Officer who will deal with the matter in terms of section 93 of the Labour Relations Act[Chapter 28:01].”

It is clear on the basis of Section 12.7 (b) and (c) of the Code that where a matter is not determined within thirty days of the date of notification the employee may refer to a Labour Officer for conciliation in terms of Section 93 of the Act. Where there is a Designated Agent with the same qualifications the matter can also be referred to a Designed Agent under Section 63 (39) of the Labour Act. Where a matter has been so referred it can no longer be resolved in terms of the Code but must be resolved by the Labour Officer or Designated Agent. See Marimo vs National Breweries 5-125-00. Watyoka vs ZUPCO 2006 (2) ZLR 170 (S). It follows in casu that the matter was properly referred to the Designated Agent. His obligation therefore was to determine the appeal in the matter. It must follow therefore that the Designated Agent in arriving at the conclusion that he had no jurisdiction was clearly wrong. It is apparent that in reaching his conclusion he improperly read the provision in Section 101 (5) and (6) of the Labour Act [Cap 28:01] which provisions read as follows;

“(5)	Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6)	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.”

The 1st Respondent thus clearly committed a gross irregularity in finding that he had no jurisdiction in the matter when he had jurisdiction to deal with the matter. It is also apparent that in arriving at this conclusion the jurisdictional point had not been raised or argued by either of the party. In the circumstances his ruling clearly stands to be set aside. Once it is set aside it must follow that the parties have to revert back to 1st Respondent for him to adjudicate on the appeal referred to him. In drawing up an appropriate order I must also address for completeness the status of the Applicant. The Applicant was dismissed by the Respondent Disciplinary Committee on 27th March 2017. That decision still remains extant until it is set aside by the Designated Agent or any other competent court. By noting his appeal to the Designated Agent this would not have the effect of suspending the Disciplinary Committee decision. See Longman Zimbabwe (Private) Limited vs Midzi J & J Others SC 54/107. The Applicant therefore remains as dismissed from employment but awaiting the hearing of his appeal.

In the circumstances the following order is made.

The application for review succeeds.

The draft ruling by Designated Agent P. Chirongoma dated 23 July 2019  be and is hereby set aside.

The matter is remitted to the same Designated Agent for him to proceed to hear the matter on the merits.

Such hearing should be convened within 60 days of the date of this order.