Samson Zinyama v National Handling Services

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/657/2016
HARARE, 13 JUNE 2016 &
21 OCTOBER 2016
CASE NO LC/H/537/2015
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/657/2016

HARARE, 13 JUNE 2016 &				         CASE NO LC/H/537/2015

21 OCTOBER 2016

In the matter between

SAMSON ZINYAMA						APPELLANT

Versus

NATIONAL HANDLING SERVICES				RESPONDENT

Before the Honourable Manyangadze J

For the Appellant	T J Mafongoya (Legal Practitioner)

For the Respondent	Ms R Nemaramba-Dodzo (Legal Practitioner)

MANYANGADZE J:

This is an appeal against an arbitral award handed down on 15 May 2015, wherein the arbitrator dismissed the appellant’s claim on the basis that the matter was not properly before her.

The factual background to the matter is well summarised in the parties’ heads of argument. I find the respondent’s factual background more comprehensive. The summary presented in the appellant’s heads of argument has some gaps in the sequence of events described. It is not clear whether these gaps are a result of inadvertent omission, or an attempt to conceal some details which could be decisive in the resolution of the appeal.

The chronological built up to the appeal can be outlined as follows:

Consequent to disciplinary proceedings held in terms of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 (S I 15/06), the appellant was dismissed from the respondent’s employment. The charge of misconduct of which he was convicted was contravention of section 4 (a) of S I 15/06:

“any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract.”

The appellant’s internal appeal to the General Manager was dismissed on 23 August 2012.

On 21 March 2013, the appellant, together with two other employees, filed an application for condonation of late filing of an application for review with this court, under Case No LC/REV/H/21/13. The application was dismissed by MUSARIRI J on 28 March 2014.

On 5 May 2014, the appellant referred the matter to a labour officer, alleging unfair labour practice. The matter was referred to compulsory arbitration, resulting in the contested arbitral award.

The arbitrator did not go into the merits of the matter. She upheld the respondent’s point in limine, which was to the effect that the matter was not properly before the arbitrator. The basis for so holding was that the appellant failed to appeal to a labour officer within seven days as provided for in S I 15/06.

Aggrieved by this determination, the appellant noted an appeal with this court. The grounds of appeal are stated as follows:

“1.	The arbitrator grossly misdirected and erred at law, which misdirection amounts to a question of law by holding that the appellant should have complied with S I 15 of 2006 yet the dismissal of the appellant in terms of S I 15 of 2006 was a nullity at law. Consequently, the appellant could not have legally complied to a null and void procedure.

2.	By extension the arbitrator grossly misdirected herself which misdirection amounts to a question of law by making a finding that the matter was not properly before her when the dispute was brought to the attention of the labour officer within two years in terms of section 94 of the Labour Act. Consequently the labour officer and by extension the arbitrator had jurisdiction to hear the matter.”

The appellant’s contention is that he was not bound to follow the provisions of S I 15/06 because the use of that statute was a nullity. It was a nullity in that the respondent had a registered Code of Conduct, which it was obliged to use, instead of S I 15/06.

The appellant further contended that the dispute in question was brought to a labour officer within two years, as required by section 94 (1) of the Labour Act [Chapter 28:01] (“the Act”). There was therefore no basis for the arbitrator to decline jurisdiction.

The respondent contended that the arbitrator did not misdirect herself. Since the disciplinary proceedings were held in terms of S I 15/06, the appellant was bound to follow the time lines stipulated therein.

It is necessary to look at what S I 15/06 provides. The relevant section is 8 (6)(7), which deals with the procedure following an internal appeal. It reads:

“8 (6)	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.

8 (7)	The labour officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.”

The appellant’s dismissal was upheld by an internal appeal on 23 August 2012. He was supposed to refer the matter to a labour officer within seven days of that date. He only did so on 5 May 2014, nearly two years later. It was therefore a gross violation of the stipulated time line.

If the appellant had issues with the propriety or otherwise of the application of S I 15/06, he was supposed to raise it before the labour officer, within the prescribed time line. This point is, in my view, well captured in paragraph 4.1 of the respondent’s heads of argument:

“4.1	The appellant contents (sic) that he was not obliged to follow the provisions of S I 15 of 2006 because the respondent had used S I 15 of 2006 when it had a registered code of conduct. This contention, with all due respect is not correct. The appellant had been dismissed in terms of S I 15 of 2006, if he intended to challenge the dismissal he had no option but to follow the procedure stipulated in S I 15 of 2006. There was no other procedure that the appellant could have adopted other than, the one provided for in S I 15 of 2006. The fact that the appellant disputed the use of the national code was not relevant since the appellant was challenging a decision reached in terms of S I 15 of 2006.”

The other dimension to the appellant’s case is that section 94 (1) of the Act provides a period of two years within which to refer a matter to a labour officer. He was within the two years, and should have his matter entertained by the labour officer.

There is really no contention that the dispute was referred within the two year period. Prescription had not yet set in. That is however, not the point in this matter. Referral to a labour officer, even within the two year period, was emanating from an internal appeal. Section 8 (6) and (7) of S I 15/06 therefore applied. The appellant was bound to comply with those provisions. Referral to arbitration, in terms of section 93 of the Act, is subsequent to referral to a labour officer in terms of section 8 (6) and (7) of S I 15/06. These provisions are clear, unambiguous, and peremptory. The prescription argument is misplaced.

The appellant was bringing an appeal against the appeal officer’s determination, on a procedural aspect which he unsuccessfully attempted to bring on review in the Labour Court. The chronology of events outlined at the onset of this judgment clearly shows this. The ground for review in the failed Labour Court proceedings, is the same i.e. that the use of S I 15/06 constituted a fatal irregularity to the disciplinary proceedings. I agree with the submissions in paragraphs 3.1 to 3.4 of the respondent’s Notice of Response wherein is stated:

“3.1	In any event, the appellant’s appeal was an attempt to bring an application for review before an arbitrator via the back door and in the guise of an appeal.

3.2	The appellant initially intended to file an application for review with the Labour Court but he was out of time. He proceeded to file an Application for Condonation for Late Filing of Application For Review on the 21st March 2013.

3.3	On the 28th March 2014, the application was dismissed and in March 2014 the applicant decided to approach the Ministry of Labour, alleging that he was now appealing against the decision of the Appeals Authority (the General Manager) which was handed down on the 6th August 2012, despite the fact that he was out of the stipulated seven (7) days by almost nineteen (19) months.

3.4	The complaint raised by the appellant is a procedural irregularity which should be dealt with by way of review and not appeal. This explains why the appellant had initially approached the Labour Court and when this application for condonation was dismissed, instead of appealing, he chose to resuscitate the matter by initiating appeal procedure.”

The appellant could have appealed against the dismissal of his application for condonation of late filing of application for review. He could have raised whatever issues he had with the appeal officer’s decision, within the time limits prescribed, for the matter to properly land on the arbitrator’s desk. As matters stand, it was not properly before the arbitrator. The facts looked at are such that the arbitrator cannot be faulted for holding that the matter was not properly before her. She did not, in my view, misdirect herself. The appeal cannot be upheld in the circumstances.

It is accordingly ordered that:

The appeal be and is hereby dismissed.

The appellant shall bear the respondent’s costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Chihambakwe, Mutizwa & Partners, respondent’s legal practitioners