Doves Funeral Services (Pvt) Ltd v Chenjerai Kahwani

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/132/2016
HARARE, 9 FEBRUARY 2016 &
CASE NO LC/H/119/2015
4 MARCH 2016
---------


IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/132/2016

HARARE, 9 FEBRUARY 2016 &			                CASE NO LC/H/119/2015

4 MARCH 2016

In the matter between

DOVES FUNERAL SERVICES (PVT) LTD				APPELLANT

Versus

CHENJERAI KAHWANI							RESPONDENT

Before the Honourable P Muzofa J

For the Appellant	B Vito (Company Secretary)

For the Respondent    S Chirinda (Trade Unionist)

MUZOFA J:

This is an appeal against the decision of an arbitrator which ordered the reinstatement of the respondent or payment of damages in the alternative.

The respondent was a branch manager based at the Mubaira branch of the appellant. His duties included driving company hearse. On 14 June 2014 while returning from a funeral driving a company hearse the respondent was involved in an accident.

He was charged in terms of section 4 (a) of the Labour (National Employment Code of Conduct) Regulations 2006 S I 15 of 2006 “the Code”. It was alleged he took five hours to travel a distance of 44.2 km, he drove the vehicle in the middle of the night without due care and attention which led to the accident.

He was found liable and subsequently dismissed from service. The respondent referred the matter to a labour officer and eventually parties appeared before an arbitrator. The arbitrator made the decision set out in the first part of this judgment.

Two grounds of appeal were raised on behalf of the appellant. That the respondent did not exhaust the domestic remedies by way of an internal appeal and that there was adequate evidence against the respondent to found a conviction.

It was submitted for the appellant that in terms of section 8 (6) of the Code only a person aggrieved by a decision of an appeal officer may refer the case to a labour officer. In casu the respondent referred his case to a labour officer on the basis of a decision by the disciplinary committee.

Further to that it was submitted that where an appeals officer fails to determine the case within fourteen days the recourse is to apply for a mandamus and not a referral to a labour officer. To that extent the arbitrator had no jurisdiction over the matter.

For the respondent it was submitted that domestic remedies were exhausted. An appeal was filed on 14 July 2014 and when no determination was made after fourteen days the respondent referred the matter to a labour officer on 14 July 2014. This was a month later. Further it was said the issue on jurisdiction was not raised before the arbitrator, that there was no prejudice in having the matter dealt with on the merits and that the failure by the appeals committee to make a determination indicated that it upheld the decision of the disciplinary authority.

Indeed it is correct that the issue on jurisdiction was not raised before the arbitrator although the respondent set out the background to the case. It is a principle of law that an appeal cannot lie on a point that was raised and addressed by the court a quo and in this case the arbitrator, Total Marketing Zimbabwe (Pvt) Ltd t/a Loe Chris Auto SC 34-07. However the law also provides that a question of law can be raised at any point particularly the issue of jurisdiction as it impacts on the capacity of the presiding authority. Zimasco (Pvt) Ltd v Marikano SC 6-14.

In view of the above it would have been proper to refer the matter back to the arbitrator for a determination on the issue of jurisdiction. However since I have all the facts before me and the position of the law is clear on that aspect the justices of this case demand that I deal with the issue than refer it to the arbitrator.

Section 8 (3) of the Code gives a party aggrieved by the decision of a disciplinary authority as the case maybe to note an internal appeal. It is only after a decision of the appeals authority is not satisfactory that a matter can be referred to a labour officer. These are domestic remedies. Courts usually frown on circumvention of such procedure. For a litigant to succeed having failed to exhaust domestic remedies it must be shown that there are good reasons to do so. The court has a discretion to exercise judicially whether to entertain an application where domestic remedies have not been exhausted. See Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S).

In this case no good reasons exist for the failure to exhaust domestic remedies. The respondent had options either to request for the outcome of the appeals authority or to apply for a court order to compel the appeals authority to make a determination. See Zimbabwe Revenue Authority v Lindiwe Mpindiwa SC 85-06 and Nhari v ZABG SC 51-13.

The respondent’s referral to a labour officer was a futile exercise in the absence of a determination from the appeals authority.

The appropriate remedy in this case then is to refer the matter to the appeals committee for determination. If the respondent is unsatisfied that is only when a referral can be made to a labour officer.

The determination on the first ground of appeal makes it unnecessary to address the second ground of appeal on the adequacy of evidence. A finding on that issue would certainly interfere with the appeals authority’s decision.

Invariably the arbitral award is set aside. The respondent reverts to the position he occupied after the determination of the disciplinary authority.

In view of the foregoing the following order is made:

The appeal be and is hereby upheld.

The decision of the arbitrator is set aside.

The matter is referred to the appellant’s appeals authority to determine the appeal before it within fourteen days of this order.

No order as to costs.