City of Harare v Fanuel Gudu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/121/13
HELD AT HARARE 22nd January, 2013
CASE NO LC/H/403/11
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/121/13

HELD AT HARARE 22nd January, 2013	        CASE NO LC/H/403/11

In the matter between:-

CITY OF HARARE			Appellant

And

FANUEL GUDU				Respondent

Before Honourable G Mhuri, Senior President

For Appellant: Ms Chimhenga (Principal Legal Officer)

For Respondent: Mr E. Mangezi (Legal Practitioner)

MHURI G.

This is an appeal against an Arbitral Award wherein it was ordered that Respondent be reinstated to his original position as the decision to dismiss him was null and void as it was made outside the prescribed time frames.

The sequence of events that led to the Arbitrator awarding as he did, were that

Respondent was arraigned before a Disciplinary Committee in terms of the Labour (National Employment Code of Conduct) S.I. 15/2006 to answer charges of theft of a water pump.

On the date of hearing – 15th December 2005 the hearing was postponed at the Respondent’s instance.

On the next hearing date i.e. 20th December 2005, again the hearing was postponed at Respondent’s instance.

After the 2nd postponement the hearing was scheduled for the 28th September, 2006 and the 4th October 2006 after which he was found guilty.

On the 26th January 2007 Respondent was then dismissed from employment.

In terms of the Code under which Respondent was charged, proceedings against an employee are supposed to be completed within 14 days.

In casu after the 20th December 2005 postponement, there was a long lull. Appellant did not set a date of hearing until the 28th September 2006 i.e. 9 months delay and only delivered the penalty after 3 months.

Appellant’s explanation for this inordinate delay that it was because of unavailability of dates cannot reasonably be true. There was no explanation for the 3 months delay between the verdict and the penalty.

Appellant’s submission was that by seeking postponements, Respondent waived his right to have the matter concluded within 14 days as prescribed in the Code. While this argument could be accepted as correct I find it to be without merit in view of the length of delay that ensued. Respondent’s first request for a postponement was only for 5 days. There is no explanation why the matter could not be given an earlier date after the 2nd request for postponement. A delay of 9 months is too inordinate.

It is this delay that the Arbitrator took into consideration and came to the conclusion that the proceedings were null and void. I find no reason to faulter the Arbitrator’s decision. Section 101(6) of the Labour Act [CAP 28:01] permits either party to approach the Labour Officer in the event that proceedings have not been concluded within 30 days of their institution.

The subsection reads:

“If a matter is not determined within thirty days of the date of 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”

In casu it was within its right for Appellant to invoke the above sub-section when it realised that the postponement by Respondent would not make it possible for it to conclude the proceedings within 14 days as required or when it realised that it was difficult for it to get dates for the hearing as per its explanation. In view of this, I find that the case of

WATYOKA VS ZUPCO SC 87/2005

cited by Appellant cannot assist it at all. This case was not considering a delay such as the one in this case.

To that end, the Arbitrator’s award cannot be impugned.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

J. Mambara and Partners – Respondent’s Legal Practitioners