Fidelity LIFE Assurance (Pvt) LTD AND Fidelity LIFE Assurance OF Zimbabwe (Pvt) LTD VS Nickson BUSU

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/716/14
HELD IN HARARE, 8th OCTOBER, 2014
CASE NO. LC/H/382/14
AND 24th OCTOBER, 2014
JUDGEMENT NO. LC/H/716/14
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IN THE LABOUR COURT OF ZIMBABWE 	         JUDGEMENT NO. LC/H/716/14

HELD IN HARARE, 8th OCTOBER, 2014             	            CASE NO. LC/H/382/14 AND 24th OCTOBER, 2014

In the matter between

FIDELITY LIFE ASSURANCE (PVT) LTD			  1ST Appellant

And

FIDELITY LIFE ASSURANCE OF ZIMBABWE (PVT) LTD	  2ND Appellant

Vs.

NICKSON BUSU			    				  Respondent

Before The Honourables E. Muchawa, Judge and

L.M. Murasi, Judge

For Appellants    :	Mr S. Hwacha (Legal Practitioner)

For Respondent  :	Ms Mutindindi (Legal Practitioner)

MURASI J,

The parties to these matters requested that they be consolidated, that is, the appeal, the review and the cross- appeal. The Court acceded to the request.

The facts of the matter can be chronicled as follows. Respondent in the appeal was initially employed by 1st Appellant. Due to alleged incompetence he was transferred to 2nd Appellant, a subsidiary of 1st Appellant. 1st Appellant instituted disciplinary proceedings against Respondent and found him guilty and gave him a Final Written Warning valid for twelve (12) months. Respondent appealed against this decision in terms of the Code of Conduct but the Appeals Board upheld the decision of the Hearing Committee. Respondent took his matter to the Labour Office. Meanwhile at 2nd Appellant, Respondent was charged with incompetence which culminated in his dismissal. Respondent referred this matter to the Labour Office. The matters, I say so guidedly, were referred to arbitration. The decision of the Arbitrator is the subject of the Appeal, Review and Cross-Appeal.

The Court upheld the point in limine raised by Respondents in the Review Application and Cross-Appeal and stated that the two matters were improperly before the Court for a failure to comply with the Rules of the Court. This judgment will therefore not refer to the reasons for the decision.

In the appeal, Appellant’s Counsel stated that he abided by the Heads of Argument filed of record. It was submitted that whilst Respondent appealed to the Labour Office in respect of the charges preferred against him by 1st Appellant, there was no appeal in respect of the matter from 2nd Appellant which had resulted in his dismissal. It was argued that the matter that was referred to the Arbitrator was not the 1st Appellant’s matter but 2nd Appellant’s matter. It was further submitted that the Arbitrator was correct in holding that she had no jurisdiction to hear the “dismissal” matter. Appellant’s Counsel stated that the Arbitrator fell into error in going on to determine the 1st Appellant’s matter which was not properly before her. It was further submitted that the award was not practical as the Respondent had already been dismissed. Appellant’s Counsel clearly showed that the only issue for determination was the dismissal issue.

Respondent’s Counsel submitted that she abided by the Heads of Argument filed of record. It was stated that after 8th October 2013, Respondent referred his matter to the Labour Office. It was further argued that the matter referred to the Labour Office in terms of Section 8(6) of Statutory Instrument 15 of 2006 would be disposed of in terms of Section 93 of the Labour Act [Cap 28:01]. It was submitted that the Arbitrator erred in not determining the “dismissal” issue which was not part of the terms of reference. Respondent’s Counsel further submitted that the statute does not require that a referral to the Labour Office in terms of Section 8(6) of Statutory Instrument 15 of 2006 should be in the form of a proper appeal in the strict sense.

The Court will need to consider the history of the matter in order to unravel it. When Respondent was found guilty by 1st Appellant, he approached the Labour Office. This is after his appeal in terms of that Company’s Code had been dismissed. The first visit was on 5th September 2013. A letter dated 13th September 2013 was written on behalf of Respondent to the Labour Office which communicated the fact that Respondent had been suspended from duty by 2nd Appellant. Respondent was found guilty by 2nd Appellant  and on 4th October 2013, 2nd Appellant’s Appeals Committee dismissed Respondent’s appeal. This brings me to the various notices that were issued by the Labour Office in respect of these matters. A ‘Notification to Party to Attend Proceedings’ on 5th November 2013 was sent out which showed that the matter to be heard was ‘Alleged Unfair Dismissal’ (page 87 of the record). The matter was to be heard before a G.T. Parakokwa. The Form L.R. 6 dated 8th January 2014 which was a Notice to Appear before G.T. Parakokwa on 17TH Janaury 2014 has the following issues;

“Alleged unfair labour practice and alleged unfair dismissal”.

The Form L.R. 4 dated 6th February 2014 which referred the matter to the Arbitrator has the following details:

The Labour Officer who refers the matter is G.T. Parakokwa.

The matter being referred is ‘Alleged unfair labour practice and alleged unfair dismissal!

The issues to be arbitrated upon are listed as follows;

Whether or not the Labour Officer has jurisdiction to hear the matter.

If so, whether or not claimant was unfairly dismissed.

Appropriate remedy thereof.

A reading of the documents shows the issue of unlawful/unfair dismissal was part of the issues before the Labour Officer. The Arbitrator’s reasoning is couched as follows:

“The complaint form dated 5th September could not have referred to unfair labour practice of a dismissal which had not yet taken place. The matter being referred to as unfair labour practice as at that date was therefore events leading to the final written warning. It is this issue I consider to be covered by my terms of reference.”

And further,

“There is no evidence that after the dismissal on the 30th October (I believe should be September) and after receiving the dismissal letters on 2nd and 8th October 2013, claimant did not file a fresh appeal with the Labour Officer against the dismissal.”

The Court is of the view that this is where the Arbitrator fell into error. The referral to arbitration clearly shows that two issues were brought to the attention of the Arbitrator. The use of the word “and” is clearly conjunctive. The word was joining the “unfair labour practice” and the unfair dismissal one. The record and the Forms shows that G.T. Parakokwa had previously set down these matters before him. The Arbitrator states that there is no evidence that Respondent “filed a fresh appeal with the Labour Officer.” Was Respondent supposed to “file an appeal”? It is common cause that 2nd Appellant used Statutory Instrument 15 of 2006 in preferring charges against Respondent. The appeal procedure is contained therein. In particular, Section 8(6) provides:

“A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee as the case may be, may refer the case to a Labour Officer or an Employment Council Agent as the case may be, within seven working days of receipt of such decision.”

The provisions of the statute are clear and unambiguous. The golden rule of statutory interpretation dictates that the words of the statute must be given their ordinary grammatical meaning unless to do so would lead to an absurdity. I see no absurdity in construing Section 8(b) of SI 15/2006 as meaning a mere report or reference would suffice for the purpose of the statute. No formal appeal was required from the Respondent.

This brings me to the Terms of Reference before the Arbitrator. The Arbitrator was enjoined to determine ‘whether or not claimant was unfairly dismissed.’ The Arbitrator declined to deal with the issue citing the fact that the matter was improperly before the Labour Officer as no appeal had been lodged. As observed elsewhere in this judgment, the Arbitrator’s finding was erroneous. The matter had been “referred” to the Labour Officer in terms of Section 8(6) of S.I. 15/2006. In this regard the Court is of the view that the award cannot be allowed to stand as the purported final decision is flawed from the inception of the Arbitrator’s reasoning.

In conclusion, the appeal succeeds for different reasons and the arbitral award should be set aside.

The Court makes the following order:

The arbitral award of A. Gurupira dated 25th March 2014 is hereby set aside.

The matter is remitted for a hearing de novo within sixty (60) days of from the date of this order before a different arbitrator with the following Terms of References:

Whether or not Fidelity Life Assurance Company had jurisdiction to discipline the Respondent.

Whether or not Respondent was unfairly dismissed.

The appropriate remedy thereof.

That there be no order as to costs.

……………………………….

Murasi J.

………………………………. I agree

Muchawa J.

Dube, Manikai & Hwacha – Appellant’s legal practitioners

Matsikidze & Mucheche – Respondent’s legal practitioners