Thomas Mutizhe v Dharwizi Transport (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO
LC/H/09/2016
HARARE, 2 OCTOBER 2015 &
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO LC/H/09/2016

HARARE, 2 OCTOBER 2015 &                        CASE NO LC/H/APP/733/2015

8 JANUARY 2016

In the matter between:-

THOMAS MUTIZHE                                                        		APPELLANT

The application placed before me was for condonation of late filing of an appeal. The Applicant is a former employee of the Respondent. He appeared before the Respondent disciplinary authority charged with acts of misconduct in terms of Statutory Instrument 15 of 2006 (the model Code). He was found guilty and a penalty of dismissal was consequently imposed. The Applicant dissatisfied with the determination initially approached a Labour Officer with a complaint of unfair labour practice. Midway through that process the Applicant abandoned the process. He then approached this court with an intention to appeal against the employer’s determination. Because however his appeal was out of time by 6 days he then filed the present application for condonation of late filing of an appeal. The application was opposed by the Respondent.

In its Notice of Response Respondent took a point in limine. The point was that the form used by the Applicant not being in the format of Form LCI the application was consequently defective and ought to be dismissed. The Respondent also submitted on the merits that the Applicant having initially chosen to refer his matter to the Labour Officer in terms of Section 8 (6) of the Model Code as read with Section 93 of the Labour Act [Cap 28:01] the Applicant had pursued the correct procedure. It was improper for Applicant to have then abandoned that process and chosen to pursue instead an appeal before the Labour Court.

On the date of hearing, the parties reached an agreement that the application turned on one point only, which is whether or not the Applicant’s relief lay with the Labour Court through filing of an appeal or before the Labour Officer. The court then directed both parties to file supplementary heads of arguments on the one point.   The court would then determine the issue on the papers. Both parties having filed their supplementary heads on that point the following is the court’s ruling on the point.

The only issue for determination is whether or not the Applicant has correctly approached the Labour Court in seeking to note an appeal. The point taken by the Respondent is that Applicant having appeared before the Respondent Disciplinary Authority charged with misconduct in terms of Model Code he was thereafter convicted under that law. The Applicant should have on the basis of Section 8 (6) of the Model code approached the Labour Officer (i.e. this in terms of the law before the recent amendment). If he was dissatisfied with the Labour Officer he would have thereafter referred the matter to arbitration. An appeal on a point of law to the Labour Court would only ensue if he was still dissatisfied with the Arbitrator’s findings. It is Respondent’s further submissions that the provision in Section 8 (6) of the Model Code have already been so interpreted by the Labour Court on countless occasions. The court was referred to Cuthbert Chitima v Stanbic Bank LC/H/231/11 in which KUDYA J concluded that the clear import of the provision is Section 8 (6) is to mandate an activation of conciliation and subsequently arbitration process before one could approach the Labour Court. On this basis it was Respondent contention that no appeal lying at this stage to the Labour Court the application for condonation was therefore an invalid application.

The Applicant’s position is that he is entitled to approach the Labour Court for the relief he seeks. The reason lies in the dismissal letter dated 8 May 2015 (annexure to his papers) in which Respondent wrote:

“Reference is made to your appearance before the Disciplinary Authority in terms of Statutory Instrument 15 of 2006.

The Board having taken into consideration the determination from the Disciplinary Authority as regards your case resolved that you, Mr Thomas Mutize be dismissed from employment with effect from 08 May 2015.

Take note that, due to the size of this organization and the position you held there is no internal appeal structure. Should you want to appeal on this matter you may proceed to the Labour Court (Applicant’s emphasis).”

It is Applicant’s position that the Respondent having, through its Board Chairman penned this letter and advised the Applicant that there was no internal appeal structure and if he wanted to lodge an appeal he could do so through the Labour Court, the Respondent is estopped from questioning the propriety of the Applicant approaching the Labour Court. The Respondent is further estopped from questioning the validity of the Labour Court’s jurisdiction in respect of the appeal when the filing of the appeal was in accordance with its instruction. It is Applicant’s further contention that if Respondent indeed believed that the correct forum was the Labour Officer then Respondent ought to have directed Applicant to the same. Having however directed Applicant to purportedly the wrong forum the Respondent cannot be allowed to benefit from its own mistake.

The Applicant’s second reason is premised on the provisions in Section 8 (6) of Statutory Instrument 15 of 2006. It is Applicant’s contention that couched as it is Section 8 (6) makes reference to a party who is aggrieved by a decision from an internal appeal authority to approach a Labour Officer or Employment Council. The section is however silent as to whom one is to approach in the event of no internal appeal structure existing at the workplace as was the case in casu. The Applicant was entitled, given that there was no internal appeal structure in place, to note his appeal with the Labour Court. The converse argument is that the Applicant had no legal right to approach the Labour Officer given that his appeal was not from an ‘internal appeal structure as provided in Section 8 (6) of the Model Code. It was Applicant further submission that as his intended appeal does not fall within the ambit of Section 8 (6) of Statutory Instrument 15 of 2006 Section 92 D of the Labour Act [Cap 28:01] consequently applied in the matter. Finally the Applicant addressed the point taken in Respondent heads which was not included in the terms of reference which I shall revert, to below. On this basis the Applicant submitted that the application was properly before the Labour Court and the court was empowered to deal with the application.

The first issue to be addressed is the import of the letter by the Applicant Board Chairman. In the letter the Board Chairman advised that as there was no appeal structure in place Respondent had to lodge his appeal with the Labour Court. The Board chairman clearly erred at law.

Section 8 (6) of the Model Code under which Respondent was disciplined provides for a procedure where if one is aggrieved by the employer’s decision on appeal one may refer to either a Labour Officer or an Employment Council Agent. Section 8 (6) of the model code provides as follows:

“(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 or receipt of such decision.”

It is clear from a perusal of the section that the clear intention by the legislature was to make matters subjected to the model code to proceed via Labour Officer, when conciliation fails arbitration proceedings are then undertaken. It is only when one is dissatisfied with the arbitral process that one can then approach the Labour Court. It was clearly not the intention of the legislature that one could approach directly the Labour Court where one has been disciplined in terms of the model code. This applies even where there is neither an Appeals Officer nor Designated Agent of an National Employment Council at the workplace. I found support for this proposition in Lovemore Madhuku, 2015 in Labour Law in Zimbabwe at page 126.

It follows that in regards to the letter penned by the Board Chairman it does not matter that rightly or wrongly he considered the correct procedure in the circumstances to be an appeal to the Labour Court. The existence of clear specific provisions in the Act and the Model Code precluded the Applicant from approaching the Labour Court directly.

The provisions in Section 8 (6) of the Model Code have indeed been so interpreted by this court many a time. The Court was aptly referred to the decision by my sister, Kudya J in Cuthbert Chtima v Stanbic Bank the import of which was that provisions under the Model Code entitle one to approach the Labour Court only after exhausting the other channels i.e. conciliation and arbitration. The court concurs entirely with the reasoning therein and has no basis to depart from the findings in Cuthbert Chitima decision.

The Respondent Board Chairmen clearly erred at law. His error cannot however be used to benefit the Applicant as his letter cannot supersede the clear provisions of statute. The Respondent is therefore not estopped from raising the issue of the jurisdiction of this court to hear the appeal. The Respondent cannot be taken to have waived any rights it had to raise the question of the validity of appeal to the Labour Court on the basis of the letter written by the Board Chairman which letter clearly wrongly interpreted the law.

The Applicant has submitted the second reason for approaching the Labour Court directly is that Section 8 (6) of the Model Code makes reference to a party aggrieved by a decision from an internal appeal authority to approach a Labour Officer or Employment Council. The section is said to be silent as to when one is to approach in the event of no internal appeal structure existing at the work place as in casu. The Applicant submission is he was entitled in the circumstances to approach and note his appeal with the Labour Court. The converse argument is he could not approach the Labour Officer where his appeal was not from an ‘internal appeal structure’ as provided under Section 8 (6) of the Model Code.

I believe this point has already been addressed. The approach to be taken where there is no internal appeal structure is to refer to the Labour Officer. As was stated by my sister Kudya J in Cuthbert Chitima v Stanbic Bank the clear intention of the lawmakers in crafting the provisions was to ensure that no appeal is brought directly to the Labour Court where the proceedings are conducted under the Model Code. This applies even where there is no internal appeal structure in place at the workplace as in casu.

The Applicant has also submitted that as there was no internal appeal structure the matter fell in the ambit of Section 92 D of the Labour Act [Cap 28:01]. Section 92 D of the Labour Act [Cap 28:01] provides as follows:

“A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court.”

The Applicant disciplinary proceedings were conducted under the Model Code. He ought therefore to have referred his matter by virtue of Section 8 (6) of the Model Code to the Labour Officer. There is no provision in the Labour Act or the Model Code for that matter that an employee dismissed under the Model Code may where there is no internal appeal structure brings proceedings under Section 92 D of the Labour Act [Cap 28:01]. Such procedure is not provided anywhere. The Labour Court as a creature of Statute cannot purport to exercise jurisdiction in the absence of specific provisions granting it jurisdiction. The submission by Applicant on this score is clearly without merit.

Lastly the Respondent took the point that in filing the application for condonation Applicant is seeking to extend a statutory period. That point not having been raised in Respondent’s Notice of Response and also not forming part of the agreed issues of reference before this court has been improperly taken by the Respondent. It is consequently dismissed.

In the circumstances the point in limine taken by the Respondent ought clearly to be upheld. Accordingly it is ordered as follows:

The point in limine is hereby upheld.

The application for condonation of late filing of an appeal is dismissed with costs.

Coghlan, Welsh & Guest, appellant’s legal practitioners

Kadzere, Hungwe & Mandevere, respondent’s legal practitioners