Richard T. Chinengundu v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/266/2013
HELD AT HARARE ON 22 JUNE, 2013
JUDGMENT NO. LC/H/266/2013
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IN THE LABOUR COURT OF ZIMBABWE     		JUDGMENT NO. LC/H/266/2013

HELD AT HARARE ON 22 JUNE, 2013			CASENO./LC/H/280/2011

In the matter between:-

RICHARD T. CHINENGUNDU					-	Appellant

And

CITY OF HARARE							-	Respondent

Before The Honourable L. Hove: President

For Appellant 	-	Mr. S. Hashiti,J Zuze(Legal Practitioners)

For Respondent 	-	Mr. W. Gandanzara (Chief Legal Officer)

HOVE L.:

The  issues for determination in this appeal against an arbitral award are;

“whether or not the claim by the Appellant had prescribed by the time it was referred to a Labour Officer”

It is not disputed that on 24 June 1999 the Appellant was suspended from his work place.  On 22 December 1999 he was dismissed. On 10 March 2000 the matter was referred to the Review Board.  The Appellant requested for the transcript to enable him to prepare his grounds for review.  The transcript was availed to the Appellant on or before 26 July 2000.

On 1 February 2001 the Appellant had not furnished the review board with his review grounds.  On 29 March 2001 the Review Board refused to review the proceedings arguing that they where hopelessly out of time.  Appellant had received the transcripts on or about 26 July 2000 but only sought a review on 26 February 2001.

Inspite of the fact that the Minister of Local Government Public Works and National Housing had no role to paly in disciplinary proceedings held in this terms of the Collective Bargain agreement, (Harare Municipality Undertaking (General Conditions of Service) Statutory Instrument 66 of 1992 as read with Section 14 (6) (b) (ii) of the Urban Council Act) the Appellant decided to refer the dispute to the Minister.

The Minister issued a directive on 20 February 2002 that Appellant be paid a retirement package.  The directive was withdrawn on 25 February 2002.

On 20 August 2004 the Appellant referred the dispute to a Labour Officer.

Nothing happened until 5 January 2010 when Appellant decided to pursue his matter with the Labour Officer.

Conciliation proceedings before the Labour Officer were conducted on 4 February 2010.  A Certificate of No settlement was issued and the matter was referred for Arbitration.

The argument that arises is whether or not the matter had prescribed at the time it was referred to the Labour Officer.

Section 94(1) of the Labour Act [Chapter 28:01] (the Act) provides as follows;

“subject to subsection (2), no Labour Officer shall entertain any dispute or unfair Labour practice unless,

it is referred to him; or

has otherwise come to his attention within two years from the date when the dispute or unfair Labour practice first arose.”

It is not disputed that the dispute was referred to a Labour Officer on 20 August 2004.  The refusal to review the dispute had been on 29 March 2001.

And the Minister’s directive was withdrawn on 25 February 2002.

The Appellant took 3 years 5 months after learning of the refusal by the Review Board to hear his matter from 29 March 2001 to 20 August 2004 when he referred the matter to a Labour Officer.  He also took about 2 years 6 months after learning of the withdrawal of the Ministerial directive on 25 February 2002 to 20 August 2004 when he referred the matter to a Labour Officer.

The referral of the dispute therefore on 20 August 2004 was outside of the prescribed 2 years from both the refusal to entertain the review and the withdrawal of the Ministerial directive by 3 years 5 months and 2 years 6 months respectively.

These facts show that the Arbitrator’s conclusion of facts and the application of those facts to the law cannot be faltered.

The Appellant argues that prescription was interrupted by his pursuing of other alternative methods he employed to try and have the dispute resolved.

Even if one were to accept that his approaching the Minister had the effect of interrupting the running of prescription, still he acted outside of the prescribed 2 years after the Minister had failed to assist him.

In the light of the above the Arbitrator’s decision cannot be faltered and there is no basis for interfering with his award.  The appeal must therefore fail.

Accordingly the appeal is dismissed.  There is no order as to costs.

Zuze Law Chambers– Appellant’s  legal Practitioners