City of Harare v Collen Gwara

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/318/2016
HARARE, 18 FEBRUARY 2016
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/318/2016

HARARE, 18 FEBRUARY 2016				     CASE NO. LC/H/517/15

AND 13 MAY 2016

In the matter between:-

CITY OF HARARE					 		Appellant

And

COLLEN GWARA							Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr C. Kwaramba (Legal Practitioner)

Respondent		In person

CHIDZIVA, J:

This is an appeal against an appeal against the arbitral award by Hon Arbitrator Mudzimure that was handed down on 5 May 2015.  The arbitrator had ordered the Appellant to reinstate the Respondent without loss of benefits and salary.

The terms of reference that had been brought before the arbitrator are as follows:

Whether or not the claimant was fairly dismissed.

To determine the remedy thereof.

The brief history of the matter is that

The Respondent was engaged by Appellant as a patrolman in May 2006.

He absented himself from work from 21 January 2009 to 23 February 2009.

Respondent’s salary was stopped without a disciplinary hearing.

On 24 September 2009 Arbitrator Bvumbe nullified the initial hearing because of procedural irregularities.

Appellant reinstated the Respondent but conducted the hearing in January 2012.

The verdict for dismissal was handed down on 11 April 2013.

The matter was then taken up for arbitration after the conciliation had failed.

Arbitrator ordered re-instatement without loss of salaries and benefits alternatively payment of damages for unlawfully dismissal.

The grounds of appeal are as follows,

The arbitrator erred by finding that the matter had prescribed when the Appellant reinstituted disciplinary proceedings yet the matter had not prescribed.

The arbitrator erred by finding that the Appellant waived its right to institute disciplinary proceedings by delaying the proceedings.

The Respondent in response told the court that the arbitrator did not err by finding that the delay in re-instituting disciplinary hearing against the respondent resulted in Appellant waiver of rights by the Appellant to discipline Respondent.

It is common cause that,

Appellant was away from work during the stated period.

The appellant delayed in conducting fresh disciplinary proceedings.

What is to be decided is whether

The matter had prescribed when the disciplinary proceedings were conducted.

The appellant waived the right to conduct disciplinary proceedings.

The remedy thereof

Section 94 (1) (1) of the Labour Act [Chapter 28:01] states that

“(1) (1) subject to subsection (2) no labour officer shall entertain any dispute or unfair labour practice unless –

(a)	It is referred to him; or

(b)	Has otherwise come to his attention;

Within two years from the date when the dispute or unfair labour practice first arose …”

The disciplinary proceedings commenced in March 2009.  He was reinstated in May 2010 Disciplinary proceedings commenced on 25 January 2012.  This therefore means that the dispute arose in 2009.  When the disciplinary proceedings commenced in February 2012 it was almost 3 years from the date when the dispute first arose.

In the case of Apotex Incorporated v Surgimed Pvt Ltd SC 100/2002 it was held that prescription is interrupted by Court process.

All the proceedings leading to the final award by Honourable Mudzimure were not held before a court.  As a result prescription was not interrupted by any process.

There has not been a reasonable explanation for failing to discipline the Respondent in time.

To that end therefore this court finds that the appeal lacks merit.

Accordingly the appeal be and is hereby dismissed with costs.

Mbizo, Muchadehama & Makoni, appellant’s legal practitioner