City of Harare v Eben Francisco

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/190/2014
HARARE, 7 FEBRUARY 2014 &
CASE
NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/190/2014

HARARE, 7 FEBRUARY 2014 &			CASE NO  LC/H/963/2013

28 MARCH 2014

In the matter between:

CITY OF HARARE							APPLICANT

And

EBEN FRANCISCO							RESPONDENT

Before The Honourable R F Manyangadze  :    Judge

For the Applicant		C Kwaramba(Legal Practitioner)

For the Respondent		S Banda	(Legal Practitioner)

MANYANGADZE J:

This is an application for stay of execution of an arbitral award granted on 4 November 2013. The award ordered reinstatement of the respondent to his employment with the applicant, and reinstitution of disciplinary proceedings.

The brief facts of this matter are common cause. The respondent was employed by the applicant as a Senior Valuer.

In January 2012 the respondent was charged with misconduct, and was dismissed from employment following disciplinary proceedings held in terms of the Collective Bargaining Agreement for the Harare Municipal Undertaking, S I 171 of 2010.

After conciliation failed, the matter was referred to compulsory arbitration. At the time the respondent was charged with misconduct, he was acting in the position of City Valuer and Manager, a Grade 4 position. His substantive position i.e. Seniorvaluer, was in Grade 7.

The arbitrator found that the respondent should have been charged under the Labour (National Employment Code of Conduct) Regulations, S I 15 of 2006, and not the Municipal Code of Conduct, S I 171 of 2010.

The arbitrator then ordered the respondent’s reinstatement, and the holding of fresh disciplinary proceedings under S I 15 of 2006. This award is the subject of an appeal in this court, which appeal is pending. It is also the subject of this application for interim relief, pending determination of the appeal.

At the hearing of the matter i.e. the application for interim relief, the respondent raised a point in limine. It was that the application was not properly before the court, as it was not based on a Founding Affidavit.

The respondent averred that the absence of a Founding Affidavit was a fatal irregularity, and the application must fail on that basis. The respondent referred to the High Court case ofMbanje vCharter Properties HH-131-11, in which it was held that an application stands or falls on the Founding Affidavit.

The applicant simply referred the court to the Labour Act and its regulations. It averred that there is no requirement for a Founding Affidavit in the Labour Act and Regulations.

I dismissed the point in limine at the hearing, and indicated that my reasons will appear in the main judgment.

I accept the applicant’s argument that the Labour Court is a creature of statute. It is bound by the statutes that govern its operations. On the issue raised, the applicable provision is Rule 14 of the Labour Court Rules. It lays down the requirements for applications brought before the court.

Rule 14 provides, inter alia, for the completion of Form LC1, in which is filled in details of the application. The form has a section wherein the applicant is required to write details or grounds which form the basis of the appeal. There is no mention of an affidavit. This is precisely what the applicant in casu has done. So strictly speaking, the applicant has complied with the requirements of the rules.

It must however be noted that in practice, applications in matters were legal practitioners are involved are usually accompanied by affidavits. The applications that frequently come before this court do have founding affidavits, and supporting affidavits where necessary. In my view, averments made on oath strengthen the applicant’s case. It is expected that applications filed by legal practitioners in particular, have affidavits that are used in support thereof.

As already indicated, the Labour Court rules do not make affidavits a requirement, be they founding or supporting affidavits. It is for this reason that I am unable to uphold the respondent’s contention that the application is fatally detective for failure to attach a founding affidavit.

I must now proceed to the substantive application.

The requirements for an application for interim relief, such as sought by the applicant, were well set out in the South African case of South Cape Corporation(Pvt) Ltd v Engineering Management Services (Pvt) Ltd 1979 (3) SA 534, and the Zimbabwean case of Zimbabwe Open University v Gideon Magaramombe&AnorSC-20-12.

These can be summarised as:

Whether or not the applicant has prospects of success on appeal;

Whether or not the applicant will suffer irreparable harm if execution is carried out; and

The balance of convenience.

On prospects of success, the question taken on appeal is a fundamentally legal one. It is the question of whether or not an employee acting in a higher grade but holds a lower substantive grade should be subjected to disciplinary proceedings in terms of the higher grade in which he is acting. It is the question of the extent to which the conditions of service change for an employee who is appointed to act in a higher grade.

The arbitrator held that conditions pertaining to the higher grade should apply. He consequently ruled that the respondent was wrongly charged under the Municipal Code of Conduct. He should have been charged under the National Employment Code of Conduct, which is applied to managerial employees.

No statutory or case law authority has been referred to in support of this position. The arbitrator did not refer to supporting authority in his award. The respondent also did not refer to supporting authority in his opposing papers before this court. In my view, it makes it necessary for this point to be argued and determined on appeal. This is especially so in view of the fact that the validity of the proceedings in respect of which the respondent was dismissed turn on that point.

On the aspect of irreparable harm, one is looking at reinstatement. Ordinarily, I would not view that as causing irreparable harm. The reinstated employee can be always dismissed if the appeal outcome does not go in his favour. This is not a very strong point in favour of the applicant. It cannot be reasonably contended that the applicant will suffer irreparable harm arising out of the respondent’s reinstatement.

It is the third aspect, that of the balance of convenience, that is decisive in my view.

What makes the matter problematic is the order by the arbitrator that disciplinary proceedings be held de novo in terms of S I 15 of 2006. This is the very legal point that is in contention in the appeal. It could mean holding disciplinary proceedings again, depending on the outcome of the appeal.

For parties that would have gone through the usually painstaking process of conducting disciplinary proceedings, the inconvenience would be great. This can be avoided if execution of the arbitral award is stalledpending outcome of the appeal.This, coupled with the need to resolve the legal question already pointed out, favour allowing execution after determination of the appeal.

Having regard to the circumstances of the case, it seems to me one of those cases where the interests of justice are best served by carrying out execution after determination of the appeal. It is accordingly ordered:

That stay of execution of the arbitral award granted in favour  of the respondent on 4 November 2013 be and is hereby granted pending determination of the appeal under case number LC-H-963-2013.

Costs shall be in the cause.

Mbidzo, Muchadehama&Makoni, applicant’s legal practitioners

J Mambara& Partners, respondent’s legal practitioners