Highlands School Development Association v Keith Vitrino

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/430/2013
HARARE, 26 JUNE 2013 &
27TH SEPTEMBER 2013
CASE NO LC/H/409/11
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/430/2013

HARARE, 26 JUNE 2013 &			CASE NO LC/H/409/11

27TH SEPTEMBER 2013

HIGHLANDS SCHOOL DEVELOPMENT		Appellant

ASSOCIATION

Versus

KEITH VITRINO					Respondent

Before The Honourable L. Hove:	Judge

For the Appellant: M Nkomo (Legal Practitioner)

For the Respondent: Z Macharaga (Legal Practitioner)

HOVE J:

The facts of this matter are that the respondent was employed by the appellant as a bursar.

He was suspended on 19 June 2006 in terms of SI 15/2006 (“the National Code”). This was to enable the appellant, (“the school”) to investigate allegations of misconduct which had risen against the respondent.

In part the suspension letter read as follows:

“Your suspension will remain in effect until investigations are complete at which point you will be called for hearing. You are requested not to present yourself at the school for the duration of your suspension.”

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The respondent was therefore to remain suspended until called to a hearing by the appellant.

The school did nothing there after. They did not call the respondent for a hearing. The respondent on his part alleges that he would occasionally enquire as to how far the investigations had progressed but the school continued to keep him on suspension. Until in January 2011 the respondent reported the matter to a Labour officer alleging that the school was committing an unfair Labour Practice by keeping him on suspension for so long and failing to call him for a hearing.

The matter was eventually heard before an arbitrator who found that indeed the school had committed an unfair Labour Practice by not conducting a hearing within the prescribed time. He found that the suspension was therefore a nullity. He found further that the matter had not prescribed and finally the arbitrator made a finding that the respondent had not repudiated his contract of employment when he failed to report back for work earlier during the suspension period. He found that there was no repudiation as the respondent kept himself available and did not seek alternative employment.

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The school was not happy with the arbitral award. It appealed to this court.

The grounds of appeal are briefly that:

The arbitrator was wrong in finding that there had been an unfair Labour practice committed by the school when the alleged act did not fall within the list of unfair Labour Practices listed in s 8 of the Labour Act [Cap 28:01] (“the Act”).

The arbitrator erred in failing to hold that the dispute had prescribed by holding that the dispute was of a continuing nature.

The arbitrator erred in failing to hold that the respondent had repudiated his contract of employment.

In support of its case, the appellant argued that the Act prescribed in s 8 conduct that is to be considered as unfair Labour Practice in terms of the Act.

The appellant’s conduct in failing to hold a hearing over a period of plus or minus four years is not part of what is prescribed in the Act as unfair Labour Practice. The arbitrator was therefore wrong or misdirected himself when he held that there had been an unfair Labour Practice.

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Secondly, the nature of the dispute was not of a continuing nature and therefore the claim had prescribed. The respondent failed to invoke the provisions of s 101 (6) of the Labour Act much earlier.

Finally, it was argued that the arbitrator had erred when he held that the respondent had not repudiated his contract of employment.

The issues raised will be dealt with here under:

Whether or not there was an unfair Labour Practice?

Section 8 of the Labour Act [Cap 28:01] the Act, defines what an unfair Labour Practice is and provides also that other acts can be specified as unfair Labour Practices by the Minister. So, it was argued that conduct which is not listed in s 8 and has not been specified by the Minister as an unfair Labour Practice cannot be held to be such.

In this case the conduct complained of was the employers’ conduct of suspending the respondent and then failing to hold a hearing for a long period of time. This conduct is not listed as an unfair Labour Practice. It was argued that the list is exhaustive. See in this regard the case of Muwenga v 1997 (2) ZLR 483.

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In that case the court held that anything that was not listed in s 8 of the Act is not an unfair Labour practice.

It has been submitted that in finding that an unfair Labour practice had been committed reliance had been placed on the provisions of s 8 (e)(iii) of the Act which provides that:

“8.	An employer …., commits an unfair Labour Practice if, by act or omission, he:

…

…

…

…

Fails to comply with or to implement –

…

…

…

Any determination or direction which is binding upon him in terms of this Act…”

In casu, the employer failed to comply with the provisions of s 6 of the National Code, SI 15 of 2006 which provides that the employer shall within fourteen working days investigate and conduct a hearing.

The employer ought to have conducted a hearing within two weeks. It failed to comply with the said provisions.

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But can the regulations made under the provisions of the act be classified as:

“Any direction which is binding upon him in terms of this Act?”

b)	Block’s Law Dictionary defines “direction” as:

“a formal statement of a command or injunction to do something given by an authority or tribunal.”

The regulations directing that there shall be a hearing within two weeks are made by an authority in terms of the Labour Act. The regulations command or direct that something be done within a stipulated time. This direction or injunction is binding upon any employer who has made use of the regulations. In this case the regulations are given by an authority, they are in terms of the Act, they direct that a hearing be conducted within two weeks, that direction was binding upon the employer, the employer failed to comply.

The arbitrator came to a conclusion that in the light of the facts obtaining in this case, an unfair Labour practice had been committed. This is in my opinion not an unreasonable assessment of the facts and the applicable laws.

The first rule of interpretation of statutes is that words must be given their ordinary grammatical

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meaning unless of course doing so would result in some absurdity.

If words are given their ordinary grammatical meaning in this case, there is no absurdity. No absurdity results when the ordinary meaning of “direction” is given as being “a command or injunction given by an authority.”

I am of the view that in failing to comply with the peremptory provisions i.e the order to conduct a hearing within two weeks, the employer did commit an unfair Labour Practice.

Whether or not the unfair Labour practice was continuing in nature

The arbitrator found that the unfair Labour practice was continuing in nature and as a result the dispute had not prescribed. This was so in view of the provisions of s 94 (2) of the Act which provides that:

“94 (1)

Subject to subs (2) no Labour officer shall entertain any dispute or unfair labour practice unless-

It is referred to him; or

Has otherwise came to his attention;

Within two years from the date when the dispute or unfair Labour practice first arouse.

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(2)	Subsection (1) shall not apply to an unfair Labour practice which is continuing at the time it is referred to or comes to the attention of a Labour Officer.”

The unfair Labour Practice is the failure to conduct a hearing in terms of the governing regulations. This failure to comply continued from the time the hearing ought to have been conducted.

The word “continue” is defined in the oxford advanced learner’s dictionary 4th edition as “go on happening or existing; not stop”. The unfair Labour practice did not stop, it continued to exist.

The employer therefore continued to fail to comply with the requirement to hold a hearing.

From the wording of the suspension letter, the suspension was continuing and therefore the indefinite suspension was also continuing.

It has not been disputed that the employee was never called for a hearing in the period after the fourteenth day. I cannot in any way fault the reasoning by the arbitrator and therefore find as he did that the unfair Labour practice was of a continuing nature.

Whether or not the respondent repudiated his contract of employment?

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The argument is that the respondent delayed in enforcing his rights and therefore repudiated his contract of employment.

It has not been disputed, infact it’s on record that the suspension letter directed that the suspension would last until the respondent was called to a hearing.

The relevant portion of the letter reads as follows:

“Your suspension will remain in effect until investigations are complete at which point you will be called for a hearing. You are requested not to present yourself at the school for the duration of your suspension.”

It is also not disputed that the suspension letter also forbad or prohibited the respondent from coming to the school.

It has also not been disputed that the respondent tried to chase up the matter with the employer who continued to fail to conduct a hearing.

The respondent’s conduct was not consistent with a person who is abandoning their rights. He chased the matter up with the employer over the suspension period. The onus is on the employer to show that the respondent’s conduct was consistent with a person abandoning their rights. No such evidence has been

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advanced. Infact, it is the employer who can be said to have repudiated the contract of employment. See Ambali v Bata Shoe Company 1999 (1) ZLR 417 ; Zim Sun Hotels Ltd v Law 1988 (1) ZLR 143.

It is a trite principle of our law that the law will help the vigilant and not the sluggard. Further the employer cannot seek to benefit from its own wrongful act of placing the respondent on indefinite suspension. Leopold Machisi & Ors v Johannes Tomana HH 121/2012.

In its heads of arguments, the employer moans that the respondent is claiming to have been on suspension for four years and this is day light robbery. The question can be asked that is it not factually correct that the respondent was on suspension for four years? That the employer ignored enquiries by the respondent concerning the issue and simply did nothing to protect its rights.

The employer has no one but itself to blame for the situation it finds itself in. In suspending the employee barring him from coming to the school and then ignoring the case, the employer made its bed and must lie in it.

In the result, I agree with the arbitrator that there was indeed an unfair Labour Practice which was

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committed and that the unfair Labour Practice was of a continuing nature. I also am of the view that the respondent’s conduct was not consistent with a person abandoning their rights.

In the premises, I order as follows:

That the respondent be and is hereby directed to conduct the hearing within a period of six weeks from the date of this judgment.

That should the applicant fail to conduct and finalize the disciplinary proceedings, within eight weeks of the date of this judgment, the respondent shall be re-instated with effect from eight weeks after the date of this judgment.

That should re-instatement no longer be an option, that the respondent be paid damages for the loss of his job.

That each party bears its own costs.

HOVE J

JUDGE – LABOUR COURT

Donsa-Nkomo & Mutangi Legal Practitioner, appellant’s legal practitioners

Mugiya & Macharaga Law Chambers, respondent’s legal practitioners