Lucy Chiwaye & 2 Ors v Colcom Foods Limited t/a Tripple "C" Pigs

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/355/2016
HARARE, 12 MAY 2016 &
27 MAY 2016
CASE NO LC/H/743/2015
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/355/2016

HARARE, 12 MAY 2016 &					         CASE NO LC/H/743/2015

27 MAY 2016

In the matter between

LUCY CHIWAYE							     1ST APPELLANT

And

CHIPO BANDA							     2ND APPELLANT

And

MUBITA MUBITA							     3RD APPELLANT

Versus

COLCOM FOODS LIMITED t/a TRIPPLE			     RESPONDENT

“C” PIGS

Before the Honourable P Muzofa J

For the Appellants	R Masomera  (Trade Unionist)

For the Respondent	N Madya (Legal Practitioner)

MUZOFA J:

The three appellants were employed by the respondent in various capacities until 13 November 2014 when they were dismissed following a disciplinary hearing.

The appellants noted an appeal to the Human Resources manager on 24 November 2014. No determination was made. The appellants referred the matter to a labour officer in terms of the Colcom Foods Limited Code of Conduct (“the Code”). The section provides that if within thirty days the matter is not dealt with the offender has the right to refer the matter to a labour officer.

Conciliation efforts failed, the matter was referred to an arbitrator. The arbitrator withheld his jurisdiction on the basis of section 101 (5) of the Labour Act [Chapter 28:01] (“the Act”).

The appellants have approached this court on appeal. The three grounds of appeal speak to one issue that the arbitrator erred in finding that the labour officer and by extension the arbitrator did not have no jurisdiction to hear the matter.

The prayer was that the matter be referred to the same arbitrator to deal with the matter on the merits.

It was submitted for the appellant that the appeal which was noted to the Human Resources Manager was indeed out of time. However it was for the appeals authority to make a determination. Further to that it was argued that the arbitrator erred by relying on section 101 (5) of the Act which led to an incorrect decision.

The provision of the Code giving rise to the right to refer a matter to a labour officer only provides that where a matter has not been dealt with, in casu the respondent failed to deal with the purported appeal within the set period.

Mr Madya for the respondent submitted that in terms of the Code an appeal was to be lodged with the appeals authority within two days. The appellants noted their appeals ten days later. The person who lodged the appeal was advised that the appeals were out of time. This point was denied by the appellants. However the respondent received the appeals and no determination was made.

According to the respondent the appeal was invalid in the absence of an application for condonation the court was referred to various authorities including Mastene Mawaure v Nyamunda SC 57-01 for the proposition, which proposition is correct at law.

To that end there was no appeal for the respondent to determine, the respondent was entitled to ignore it as it did.

The facts of this case are not in dispute. What is in dispute is the effect of the appeal noted out of time.

The respondent received the appeal papers and therefore created an expectation of a determination to be made. Whether the appeal was out of time or not the conduct of receipt to my mind means an appeal was lodged. Once the appeal was lodged albeit out of time the respondent was duty bound to make a determination, regardless of what it was.

The respondent referred to the case of Barclays Bank of Zimbabwe Limited v Ncube SC 26/09 where the employer noted an appeal to the appeals board out of time. The appeals board declined to hear the appeal in that it had been noted out of time. The Supreme Court upheld the appeals board’s decision.

What is different in this case is that the respondent did not decline to hear the appeal by the appellants because it was not filed timeously. The respondent did not make a determination.

Unlike in the Barclays Bank case supra where the appeals board made a decision in casu the respondent failed to do so.

The issue in casu is not the decision that was made, but the failure to make a decision itself.

In my view even if an application or an appeal is hopeless and it has no merit or is filed out of time without an application for condonation for the late noting of the appeal it deserves a determination.

The respondent’s conduct was squarely within the provisions that gave rise to the right to the appellant to refer the matter to a labour officer to be dealt with in terms of section 93 of the Act.

In view of that the labour officer and by extension the arbitrator had jurisdiction to deal with the matter.

This is because the provisions of the Code under the Appeal Procedure provide:

“If thirty days elapse and the matter has not been dealt with, the alleged offender has the right to refer the matter to a labour officer.”

The arbitrator’s reasons to withhold jurisdiction were derived from section 101 (5) of the Act. The respondent too was not agreeable to the basis of the order although agreeing with the order. Reliance on that section was obviously misplaced. The respondent had failed to deal with the matter in terms of the Code therefore the matter was already no longer subject of proceedings under the Code.

The labour officer correctly assumed jurisdiction. It was for the arbitrator to deal with the matter.

From the foregoing the following order is made.

The appeal be and is hereby upheld.

The arbitral award is hereby set aside the matter is referred back to the same arbitrator to deal with the matter on the merits.

There is no order as to costs.

Wintertons, respondent’s legal practitioners