Rainbow Tourism Group v Kelvin Mudhokwani

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/263/14
HARARE ON 7th MARCH, 2014
CASE NO. LC/H/972/12
AND 9 MAY, 2014
JUDGMENT NO. LC/H/263/14
---------




IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/263/14

HARARE ON 7th MARCH, 2014				             CASE NO. LC/H/972/12

AND 9th MAY, 2014

In the matter between

RAINBOW TOURISM GROUP				–	APPELLANT

And

KELVIN MUDHOKWANI					-	RESPONDENT

Before The Honourable B.S. Chidziva J.

For Appellant:	Mr A.K. Maguchu (Legal Practitioner)

For Respondent :	Ms L. Makuzva (Legal Practitioner)

CHIDZIVA  J,

This is an appeal against the decision of the Honourable P. Shawatu which was handed down on the 29th of October, 2012. The award stated as follows:

“(i)	The Respondent is hereby ordered to reinstate the claimant to his former job without any loss of pay and other benefits effective the date of the unfair dismissal.

(ii)	Alternatively the Respondent is ordered to pay damages in lieu of reinstatement should the employer-employee relationship becomes untenable.

(iii)	The Respondent should implement this Award within 14 days from its date.”

The brief background of this matter is that Respondent was employed by Appellant as a Kitchen Poter in October 2006. He rose through the ranks to become a Commis Cook at the time of his dismissal. In November 2008 the Respondent received a letter of suspension alleging that he had breached;

“Theft- Gross

Unlawful and intentionally appropriating property belonging to the company or in possession of the employer, other employee’s or guests with the intention of permanently depriving the other of it.”

He was dismissed from employment on the 15th of December 2008. The Respondent then appealed to the General Manager. However by 31st March 2009 the General Manager had not made a determination and the Respondent referred the matter to a Labour Officer in terms of Section 101(6) of the Labour Act. Parties failed to reach a settlement and the matter was referred to the Arbitrator who held that the dismissal was unfair and that it should be set aside. It is then this finding that the Appellant is appealing against.

The grounds of appeal are as follows:

The Arbitrator erred at law in hearing a matter over which he had no jurisdiction.

The Arbitrator erred grossly on the facts in holding that;

The guilty of the Respondent could not be established through documentary evidence.

It was mandatory that the cooking oil be produced in order to prove whether Respondent was guilty

Respondent’s work station was such that he would have no access to the cooking oil and or that there was a material issue

The Appellant has therefore prayed that the arbitral award should be set aside and that the Respondent should pay costs of suit.

The Respondent in response has submitted that the appeal should be dismissed for the following reasons;

In terms of the Appellant’s Code of Conduct and Section 101(6) of the Labour Act the Appellant no longer had the jurisdiction to hear the matter since it was 130 days after the first hearing.

The Respondent was never given the chance to cross examine witnesses during the hearing. To come up with a verdict of guilty based on mere statements was unfair

The cooking oil was never produced as an exhibit. Bold statements were not sufficient to prove a case.

Respondent’s work station had no access to the cooking oil.

It is common cause that;

Respondent was dismissed from employment on the 18th of December 2008 on allegations of theft of cooking oil.

On the 18th of December 2008 he lodged his appeal with the General Manager

By the 31st of March 2009 the appeal had not been concluded and the Respondent referred the matter to the Labour Officer.

What is to be decided before getting into the merits of the case is whether the Labour Officer had jurisdiction to entertain the appeal or not.

Section 101(6) of the Labour Act provides that;

“If a matter is not determined within thirty (30) days of the date of the notification referred to in paragraph (e) of sub section (3) the employee or employer concerned may refer such a matter to a Labour Officer who may then determine or otherwise dispose of the matter in accordance with Section 93”

The first hearing had been concluded within the prescribed 30 days. What had not been finalized was the appeal about three months after the first hearing. The Code of Conduct and the Labour Act did not state the recourse to be taken in such circumstances. However the Supreme Court in the case of Watyoka vs ZUPCO SC 87/05 stated the procedure to be followed. In the Watyoka case the employee  was dismissed from employment and he appealed internally. When his appeal was not determined he referred the matter to a Labour Officer. The employer took up the matter with the Supreme Court to find out whether the Labour Officer had jurisdiction to entertain the matter. The Supreme Court held that;

“Section 101(6) provides for a referral of the matter to a Labour Relations Officer if it has not been determination within thirty (30) days. It does not provide for a referral of a matter that has been determined. The referral to a Labour Relations Officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made ………………

Once there was a determination, the correct procedure was to appeal to the company’s management as provided in the Code of Conduct.”

In this case the Disciplinary Committee had already made a determination. The Respondent had lodged an appeal against the determination. The Respondent did not show any evidence to prove any action he took to force the Appellant to conclude the matter.

In view of the foregoing therefore the court finds that the Labour Officer had no jurisdiction to entertain this matter before the internal Appeals Committee had concluded it.

In the circumstances it is therefore ordered as follows:-

The arbitral award by Honourable Arbitrator P. Shawatu dated 29th October 2012 be and is hereby set aside.

The internal Appeals Committee should finalise the appeal by the 30th of June 2014

Failure to conclude the matter by the 30th of June 2014 the Appellant is ordered to reinstate the Respondent without loss of salary and benefits from the date of dismissal.

If reinstatement is no longer tenable the Appellant should pay damages in lieu of reinstatement

Parties should agree on the quantum of damages failure of which either party can approach this court for quantification .

Dube, Manikai and Hwacha – Appellant’s  legal practitioners