Augushito Kamba v National Social Security Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/117/21
HELD AT HARARE ON 29TH JUNE, 2021
CASE NO. LC/H/124/20
JUDGMENT NO. LC/H/117/21
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO. LC/H/117/21

HELD AT HARARE ON 29TH JUNE, 2021             CASE NO. LC/H/124/20

AND 27TH AUGUST 2021

In the matter between:-

AUGUSHITO KAMBA							Appellant

Vs

NATIONAL SOCIAL SECURITY AUTHORITY			Respondent

Before the Honourable Mhuri, J.

For Appellant		:	Mr. L. Chimuriwo (Legal Practitioner)

For Respondent 	:	Ms. G.K. Muchapireyi (Legal Practitioner)

MHURI J.

The brief background of this matter which is generally common cause is that, on the 20th July 2020 appellant was served with a charge letter in which he was being charged with an act of misconduct in terms of the National Social Security Authority Code of Conduct.  In terms of Section 10.6 of the Code the matter is to be determined within 30 days from the date of service of the charge letter upon failure of which the matter shall be referred to a Labour Officer in terms of Section 101(6) of the Labour Act.

In casu, the disciplinary proceedings were to be determined by the 2nd September, 2020.  The 2nd September, 2020 was the last day of the 30 day period, and it was on the 3rd of September, 2020 that appellant in terms of Section 10.6 of the Code, referred the matter to a Labour officer.  Respondent challenged the referral on the ground that it was prematurely referred as the 30 day period was interrupted by an act of God vis the corona virus which was detected at respondent’s premises as a result of which the premises was closed for a period of 7 days.  It prayed that the matter be remitted to respondent to carry on with the disciplinary hearing.

The Labour Officer found in favour of the respondent and ruled that the matter was referred to a Labour Officer prematurely and referred it back to respondent to determine it in terms of its Code within 7 days of receipt of the ruling.

Appellant was aggrieved by the Labour Officer’s ruling and noted this appeal on 3 main grounds, to wit that:-

The Labour Officer erred at law in entertaining a matter in which he had no jurisdiction to sit as a disciplinary tribunal when the Act only provides for conciliation.

The Labour Officer erred at law in mero motu holding that the matter was prematurely referred to him.

The Labour Officer erred in failing to determine a preliminary point on jurisdiction that was placed before him by appellant.

Appellant’s contention vis a vis the 1st ground was that in terms of section 93 of the Labour Act [Chapter 28:01] a Labour Officer deals with matters referred to him/her as a conciliator and not as a disciplinary authority.  Before issuing a ruling he/she must first issue a certificate of no settlement.  He argued that since the Labour Officer in the present case issued a ruling without issuing a certificate of no settlement, he acted against the provisions of Section 93 of the Act.  He acted as a disciplinary authority and not a conciliator.  Appellant also bolstered this argument by submitting that the use of the word tribunal by the Labour Officer meant that the Labour Officer sat as a disciplinary authority and not a conciliator.

Respondent countered appellant’s argument by submitting that the Labour Officer did not sit as a disciplinary authority, but that it had raised a preliminary point which had to be determined first before the Labour Officer could start conciliation proceedings.

It is not in dispute as it is trite that where a matter is referred to a Labour Officer in terms of section 101 (6) of the Code, the Labour Officer proceeds in terms of Section 93 of the Act which obliges him to conciliate the dispute and if conciliation fails, he issues a certificate of no settlement and thereafter issues a ruling.  The Labour Officer sits as a conciliator.

Where a preliminary point is raised, either on the jurisdiction of the Labour Officer or on the matter being properly before the Labour Officer, this issue has to be determined first before the Labour Officer delves into conciliation proceedings.  Such a point goes to determine whether the Labour Officer can deal with the matter as both speak to the Labour Officer’s jurisdiction.

A ruling on this point cannot be said to be a ruling by a Labour Officer sitting as a disciplinary authority and not conciliator.  The Labour Officer had to rule whether the matter was prematurely brought before him or not so that he can found jurisdiction to proceed with conciliation.  Such a preliminary point cannot be ignored as was aptly stated in the case of

A.M. GWARADZIMBA

vs

C.J. PETRON & COMPANY (PROPRIETARY) LIMITED SC 12/16

“In the present case, the substantive issue that was determined by the court a quo did not dispose of the matter.  The question still remained whether the application was, in the first instance, properly before the court.

This was not an issue that the court a quo could ignore or wish away.  The court was obliged to consider it and decide whether the matter was properly before it…”

I find the appellant’s argument to be without merit and equally as well, find his other argument on the labour officer’s reference to himself as tribunal as meritless.  The word tribunal does not change the seat from conciliator to disciplinary authority.  A reading of paragraph 2 of the Labour Officer’s minutes under FACTS OF MATTER TO THE RULING shows that the Labour Officer sat as a conciliator.  He states,

“During conciliation proceedings the respondent raised a point in limine that the matter was improperly before the Labour Officer”

This 1st ground of appeal being devoid of merit is therefore dismissed.

As regards ground 2, the record is very clear that the respondent raised the point that the matter had been prematurely referred to the Labour Officer as the 30 day period within which disciplinary proceedings had to be determined, was interrupted by COVID.  This was the bone of contention in respondent’s opposition filed of record.  It was respondent’s prayer that the Labour Officer orders that the referral of the matter to the Labour Officer was done in contravention of the Code as the 30 days period had not yet  lapsed due to interruption of the period due to the pandemic of the corona virus.  Respondent relied mainly on the doctrine of force majeure to support its argument.  It also prayed that the matter be remitted to the employer to carry on with the disciplinary hearing.  On the date of the conciliation proceedings (6th October, 2020) the point was persisted with and a ruling on it was issued.

In paragraph 12 of his response to respondent’s opposition and before the Labour Officer, applicant responded that the matter was properly referred to the Labour Officer.  It is clear therefore that the point was raised by Respondent, responded to by applicant and the Labour Officer made a ruling on it.  It is therefore not correct that the Labour Officer MERO MOTU held that the matter was prematurely referred to him.  From a reading of the ground it is clear that appellant is not attacking the Labour Officer’s ruling on the basis that he erred or misdirected himself in accepting that the doctrine of force majeure applied in this case.  I will therefore not dwell on the issue of force majeure.

This ground of appeal is also devoid of merit

Ground number 3 is also baseless in my view.  Having found that the matter was prematurely referred to him, it followed that the Labour Officer could not entertain any other point placed before him.  In essence by so finding he was declining jurisdiction, he was stating that at that point in time, he had no jurisdiction to entertain the matter.  The matter ended there.  Proceeding to consider the point of jurisdiction as raised by appellant was just going to be an exercise in futility.

In Gwaradzimba case (supra) the point was made,

“In general, I agree with respondent’s submission that, in a case where a number of issues are raised, it is not always incumbent upon the court to deal with each and every issue raised in argument by the parties.  It is also correct that a court may well take the view that, in view of its findings on a particular issue, it may not be necessary to deal with the remaining issues raised.  However this is subject to the rider that the issue that is determined in these circumstances must be one capable of finally disposing of the matter,”

In casu, in ruling that the matter was prematurely referred to him, the Labour Officer disposed of the matter at that juncture and there was therefore no need for him to address the point raised by appellant.  The matter ended at that point.

This ground suffers the same fate as grounds 1 and 2.  It is equally dismissed.

Appellant’s all grounds having failed, it is ordered that the appeal be and is hereby dismissed with costs on the ordinary scale.

MESSRS LAWMAN LAW CHAMBERS – Appellant’s practitioners

MUVIRIMI LAW CHAMBERS– Respondent’s legal practitioners