City of Harare v Obert Sithole

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/260/2013
HELD IN HARARE, JUNE 18, 2013
CASE NO. LC/H/857/2012
In the Matter Between
JUDGMENT NO. LC/H/260/2013
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/260/2013

HELD IN HARARE, JUNE 18, 2013		CASE NO. LC/H/857/2012

In the Matter Between

CITY OF HARARE					APPELLANT

And

OBERT SITHOLE				       	RESPONDENT

Before The Honourable E. Makamure         : President

For The Appellant     		: Ms A. Zvoutete (Principal Legal Officer)

For The Respondent  		: Mr P.J. Nzuma (Legal Practitioner)

with him the Appellant

MAKAMURE E.,

This is an appeal against an award by an arbitrator sitting at Harare.  The facts of the matter are largely common cause.  These are they.  The respondent was employed by the appellant.  Disciplinary proceedings were conducted against him.  He was found guilty.  He was penalised with dismissal.  He appealed internally in terms of the obtaining appeal process.  Appellant, for whatever reason, never sat to determine the appeal.  This was so despite reminders from the respondent.  A situation where an employer decides to ignore the plight of a dismissed employee in asserting his rights is unacceptable.  Section 2A(1) of the Labour Act Chapter 28:01 (The Act) specifically provides for “securing the just, effective and expeditions resolution of disputes…”  Ignoring an employee’s request to ensure that a matter is heard to finality can hardly be a way of ensuring the expeditions resolution of a dispute.  The Supreme Court in the case of Isaac Mukwinya v Clan Transport (Pvt) Ltd SC 47/2001 stated as follows:

“(But) we cannot ignore the difficulties faced by relatively law key employees in asserting their rights against large companies …”

The present matter is a demonstration of the difficulties an employee can have in asserting his/her rights.  The respondent employee did not rest.

The respondent, in a desperate bid to have the matter finalized, approached this Court for its intervention.  One wonders what the state of affairs would have been had the respondent not sought the intervention of this Court.

This Court [Hon. Mutema Senior President (as he turn was)] referred the matter for conciliation in the following terms:

“It is ordered that In terms of Section 89(1)(c) of the Labour Act Chapter 28:01 that the case be referred to a Labour Officer to conciliate the disputes and start the process there from.”

Thereafter the matter was conciliated upon.  Parties failed to reach a settlement and the matter was referred to arbitration.  The issues for determination were:

Whether or not the employee was unlawfully dismissed.

Whether or not the matter is prescribed considering that the employer did not convene a meeting for the appeal.

Determine the appropriate remedy.

It is clear from the order of this Court that there was need for an order to start the disciplinary process in order to ensure finality to litigation.  The fact that the Court made its order did (or does) not remove the arbitrator’s duty to exercise their usual discretion.

The Learned Arbitrator made a factual finding that the respondent was denied his legislative right to be heard on appeal.  This was due to the appellant’s failure to exhaust domestic remedies (and this is common cause).  The Learned Arbitrator found that the dismissal was therefore unlawful.  What this means is that the respondent’s appeal is still pending before the appellant.  There is therefore no way the arbitrator could have made a different finding in the face of such a glaring and fatal irregularity.  The appellant did not exhaust domestic remedies.  The appellant cannot be allowed to benefit from its own non compliance.  If this were allowed, it would open floodgates.  This would render employment codes redundant.  That would be an undesirable eventuality whose prospects cannot and must not be entertained.  Employment codes are made and meant to be adhered to by both employer and employee.  Failure to adhere to an employment code is fatal.  In the case of Clan Transport (Pvt)Ltd v Timothy Mukwengwe SC 169/99 the Supreme Court stated that where the employer failed to properly adhere to the provisions of the applicable code and dismissed an employee, such dismissal was wrongful.  Similarly in the present matter the omission by the appellant which appears to have been a calculated deliberate disregard of its own code cannot be condoned.  It is wrong.  Employers must adhere to provisions of the applicable code [See also Four Seasons Foods (Pvt)Ltd v Stephen Matsvakavanhu and Seven Others SC 44/09].

Both parties have referred the Court for which the Court is grateful.  In the case of Air Zimbabwe (Pvt)Ltd v (1) Chiku Mnensa (2) Mavis Marweye SC 89/04 (Air Zimbabwe) the disciplinary process was followed but there were some errors in that process.  In the Air Zimbabwe matter (above) the employer did conduct some appeal process.  That matter is therefore distinguishable from the present one.  As is clear, in the present matter, the appellant showed utter disdain for the provisions of the applicable code.  That attitude is clearly reproachable and the Court should frown upon a party to an employment contract who chooses to ignore the provisions of the applicable code.  Unfortunately, where the employer is the errant party, prejudice works on the poor employee who may not be in a strong financial position to force the employer to comply.  That is unfair and not in keeping with the tenets of natural justice.  The principle enunciated in Dalny Mine v Musa Banda 1999(1) ZLR 220 (Dalny Mine) that labour issues should not be determined on the basis of technicalities should not be abused to the detriment of the weaker employee.  In the Dalny Mine case (above) the Supreme Court provided alternatives leading to the finalization of labour disputes.  The alternatives are basically that either the matter be remitted back to the workplace or that the Court seized with matter determines such matter on the merits.  Given these options parties should not be quick to want to absolve the workplace of its duty to ensure that internal remedies are exhausted.  If that were left to happen, no one would take disciplinary proceedings at the work place seriously.  Parties or a party to a dispute could always find a way of not complying with the provisions of the code knowing that the Labour Court will accept any excuse of a technical nature and practically take over the disciplinary process.  As indicated earlier, that is undesirable and would make employment codes a sham.  Failure, particularly by an employer to comply with the provisions of an employment code must be condemned in the strongest possible terms.  In Barclays Bank of Zimbabwe Ltd v Fortune Ncube SC 26/09 the employer failed to note an appeal timeously.  The appellate body declined to hear the appeal.  The Bank was aggrieved by that decision and appealed to the Labour Court.  The Bank’s appeal to the Labour Court was dismissed.  The Bank appealed to the Supreme Court and the Supreme Court dismissed the appeal.  In the present matter the deliberate omission by the appellant is serious.  That omission was calculated to prejudice the respondent (See Merchant Bank of Central Africa v James Dube SC 6/04).  This is so because up to the time that the respondent approached this Court, no attempt had been made by the appellant to hear and determine the appeal.

Now I will go back to the Arbitral award.  After analyzing the facts of the matter the Learned Arbitrator ordered the reinstatement of the respondent and remitted the matter for a hearing at the appeal stage in terms of the current code of conduct.  I have no problems with the reinstatement and that the matter be heard at the appropriate appeal stage.  However, it is trite that legislation does not operate in retrospect.  It would therefore be improper for the appeal at the work place to be heard in terms of the current code of conduct.  Disciplinary procedures should be completed in terms of the legislation which was in force at the time that such proceedings were started.  This is clearly stated in Section 17 of the Interpretation Act, Chapter 1:01, which provides that an act which repeals another act shall not affect any legal proceedings in progress at the time of the repeal.

I find no error in the determination by the arbitrator save the legislation which should be applicable.

In view of the above there is no merit in grounds of appeal 1, 2, 3 and 5.  Ground of appeal 4 deals with the law which should apply.  I have already commented on this and my order will reflect this.

Having stated the above the following order is made.

The appeal be and is hereby dismissed with costs.

The respondent shall be reinstated with effect from the date of the Arbitral award by S. Mugumisi on 1st October 2012 until the matter is finalized internally.

The respondent be and is hereby ordered to conduct the appeal process in terms of the employment code applicable on 02 October 2006 when the respondent first lodged his appeal.

The Appellant be and is hereby ordered to complete the appeal process within thirty (30) days of this order.

4.(i)	In the event that the Appellant has not complied with (3) above the appellant will be considered to have reinstated the respondent with no loss of salary or benefits with effect from the date of dismissal.

(ii)	In the event that such reinstatement is not possible the appellant be and is hereby ordered to award the respondent the appropriate damages as agreed between the parties in lieu of reinstatement.  Should parties fail to agree, either party may approach this Court for quantification.

Legal Division of The City of Harare, Representatives of the Appellant.

Hute and Partners, Legal Practitioners for the Respondent.