Stenplay Investments (Private) Limited v E. Chiyangwa & 16 Others and Forward Mugabe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/739/2014
HARARE, 02 OCTOBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/739/2014

HARARE, 02 OCTOBER 2014	    		            CASE NO. LC/H/129/14

AND 07 NOVEMBER 2014

In the matter between:-

STENPLAY INVESTMENTS P/L					Applicant

And

E. CHIYANGWA & 16 OTHERS					1st Respondent

And

FORWARD MUGABE NO						2nd Respondent

Before Honourable E. Muchawa, Judge

For Applicant		-	E. Donzvambeva (Legal Practitioner)

For Respondent		-	R. Madyara (Trade Unionist)

MUCHAWA, J:

This is an application for review.

The 1st to 17th respondents are former employees of the applicant company who were employed as fishermen on a full time basis.  The 18th respondent is cited in his capacity as arbitrator in the matter under review.

First to seventeenth respondents’ (the respondents) contracts of employment were terminated on allegations of misconduct for allegedly participating in a collective job action organized by their trade union.  The issue of the unfair dismissal and claims of unpaid wages and overtime were then referred to conciliation.  When this failed, the matter landed at 18th respondent’s door for arbitration.

The background to the dispute is that the Kapenta Workers Union of Zimbabwe (KWUZ) wrote a letter to applicant on the 14th October 2013 purportedly giving notice to engage in a collective job action in terms of Section 104 (1) and (2) of the Labour Act [Chapter 28:01].  On the 18th October the NEC for the Agriculture Industry wrote to KWUZ advising them to stop the intended collective job action which was yet to be finalized in terms of section 93 of the Labour Act through conciliation.  Despite such advice, the respondents proceeded with the collective job action from 26 to 28 October 2013 which applicant considered unlawful as no adequate notice had been given, amongst other reasons.

Applicant sought authority from the Ministry of Labour on 31st October 2013, to discipline respondents.  Disciplinary proceedings were held in terms of the CBA for the Agricultural Industry, SI 323 of 1993.  The charges against each employee were misconduct inconsistent with the fulfillment of the express or implied conditions of his contract.

At the hearings applicant ended up resorting to the use of an independent hearing officer as the KWUZ officials requested for the recusal of every management member and workers’ committee members who made up the disciplinary committee on allegations of bias.  Respondents who did not dispute participation in the collective job action but who contended it was lawful were dismissed.

The respondents did not appeal in terms of SI 323 of 1993 but brought the following issues for conciliation; and then arbitration;

“alleged unlawful dismissal and non payment of wages and overtime”

The grounds of review before me are

Absence of jurisdiction on the part of the 18th respondent to deal with the matter referred to him.

Gross irregularity in the proceedings.

I deal with these below.

Absence of jurisdiction

Applicant argues that in terms of SI 323 of 1993 the respondent’s recourse was to appeal before the NEC Appeals Committee and in the event of being aggrieved, a further appeal lies with the Labour Relations Tribunal (now the Labour Court).

The referral to the arbitrator is said not to clothe the arbitrator with jurisdiction.

I was referred to the case of Phillips Electrical (Pvt) Ltd v Jokonya and Malan SC 9/97 at page 4 where the Supreme Court commented on the jurisdiction of the Labour Relations Tribunal as follows:

“Where does that leave us?  Can we avoid the conclusion that the proceedings before the Tribunal were a nullity?  I do not think we can.  The Tribunal is a creature of statute.  Its powers come from the provisions of the Act, which grant those powers.  It has no inherent jurisdiction, no equitable jurisdiction.  It can function only as provided for in the Act.”

Applicant avers that nothing should be inferred in favour of respondents from its acquiescence to have the matter referred to the 18th respondent and participation in the arbitration process.  For this I was referred to the case of Mutukwa v National Dairy Cooperative Limited 1996 (1) ZLR 341 (S) at 353C.

“.. In any case, a question of jurisdiction is one that a court imbued with review powers may arise mero motu; for parties cannot confer jurisdiction on an adjudicating authority where such jurisdiction has not been conferred on that adjudicating authority by statute.”

Further reference was made to the case of Austin Muroyiwa v Delta Operations t/a OK Zimbabwe and Ernest Thomson NO SC 83/2000 in support of applicant’s case.

It was stated too that the question of jurisdiction can be raised at any time as it is a point of law (ZESA v Bopoto 1997 (1) ZLR 126 (S).  Therein it was held that failure to comply with the provisions of the regulations amounts to an irregularity which is a point of law which can be raised at any time.

Respondent’s contention is that the issue of jurisdiction cannot be raised for the first time now as it was never raised before the arbitrator.

It is further argued that in any event the matter was referred to the arbitrator by the NEC itself.  Reliance is placed on section 93 (5) (a) and (c) of the Labour Act as founding such jurisdiction.  These sections empower a labour officer who has issued a certificate of no settlement to refer a dispute to compulsory arbitration.  A further argument is that this was the prevailing practice in the industry as there was no Appeals Committee.

Applicant makes a very good case which is bolstered by the law as already cited.  In addition section 82 (4) of the Labour Act provides.

“If a registered collective bargaining agreement provides a procedure for the conciliation and arbitration of any category of dispute, that procedure is the exclusive procedure for the determination of disputes within that category.”

At the relevant time, SI 323 of 1993 was the registered collective bargaining agreement.  The prescribed procedure was not followed.  The practice in the industry and the acquiescence of the parties does not clothe the arbitrator with jurisdiction the law does not give him.  It does not matter too that this point is raised for the first time now.

In the circumstances this ground of review succeeds.

Gross irregularity

There is no basis for me to proceed to consider this ground of review after having already found that the arbitrator had no jurisdiction.  I cannot avoid the conclusion that the proceedings before the arbitrator were a nullity.

Applicant’s averment is that the arbitrator did not pay due regard to the minutes of the hearing and misconstrued the dispute.  If he had done so, it is alleged that he would have established that the grounds of the alleged unfair dismissal were self inflicted by respondents.  It is alleged further that respondents had requested for a group hearing and an independent hearing officer thus waiving the normal procedure laid out in SI 323 of 1993.  As the minutes of the hearing had never been challenged as incorrect, the parties were bound by them.

In the oral submissions before me applicant’s representative who had initially urged the court to go into the merits and decide the matter de novo in exercising its review powers, retraced its position and barred respondent from going into the merits of the award.

Respond chose not to deal with this ground of review in addressing me.

Consequently the application for review succeeds on the ground of lack of jurisdiction by the arbitrator.

I believe that the justices of this matter would be met by the following order.

“The arbitral award of Honourable Arbitrator F Mugabe of 13th January 2014 be and is hereby set aside.”

The matter be and is hereby remitted to the National Employment Council for the Agricultural Industry for a hearing in terms of the Code of Conduct by a duly established Council’s Appeals Committee.

WINTERTONS, Applicant’s legal practitioners