UMAA Security Services & Private Investigations V USHE Mukarati

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/252/14
HELD AT HARARE 26TH FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/252/14

HELD AT HARARE 26TH FEBRUARY 2014		CASE NO LC/H/713/12

AND 9TH MAY, 2014

In the matter between:-

UMAA SECURITY SERVICES & PRIVATE		Appellant

INVESTIGATIONS

And

USHE MUKARATI						Respondent

Before The Honourable E Muchawa, Judge

For Appellant	Ambrose V.V. Mangwende (H. R. Officer)

Respondent	    		In person

MUCHAWA, J:

This is an appeal against an arbitral award which ordered that respondent be reinstated without loss of salary and benefits from the date of unlawful dismissal or that he be paid damages in lieu of reinstatement.

Respondent was employed as a security guard by appellant from 8 November 2008 to 23 September 2009.  At the relevant time he was deployed to guard Ramsgate Farm in Headlands.   In terms of his contract of employment he would work for a continuous ten day period and would go off duty for five days.

It is common cause that respondent was absent from work from the

2 September 2009 to the 4 September 2009 without any lawful authority.  It is respondent’s averment that the wrote a letter to the relevant authorities requesting a swap and he did not get any response.  His explanation is that he had a reasonable cause for the absence as he had to attend to a driving test.  Appellant alleges that the Ramsgate Farm owner proceeded to cancel the security services contract on account of respondent’s absence.

Respondent was subsequently charged of the following:

Wilful disobedience to a lawful order given by the employer

Absenting self from duty without leave or reasonable cause

Habitual and substantial neglect of duties lawful assigned

Gross incompetence or inefficiency in the performance of work

Inconsistence with the fulfilment of the express or implied conditions of contract of employment

Respondent was found guilty of all charges and dismissed with effect from

The 23 September 2009.

I proceed to outline what happened thereafter as it is important for this present appeal.

Respondent was paid his terminal benefits on the 30 September 2009.  He claims to have received the determination on the same day, the 30 September 2009.

On the 27 October 2009, respondent lodged an appeal with the Local Joint Committee against the decision to dismiss him.  He however erroneously cited appellant as UMAA Institute instead of UMAA Security.  On the 13 December 2010, respondent received a decision in his favour, which was however against UMAA Institute.

The claims of unfair dismissal were sustained with an invitation for conciliation from Designated Agent Nhiwatiwa being made in a letter dated 24 February 20111.  This was now against UMAA Security.  The initial meeting was proposed for the 21 March 2011.  On 22 March 2011, another invitation for conciliation was issued out though the subject matter was non-payment of wages.  Both were from Designated Agent Nhiwatiwa.

The matter referred for conciliation on the 22 March 2011 was one of alleged unfair dismissal and the referring officer was Nhiwatiwa.  At the same time the matter of alleged  non-payment of terminal benefits, allowances and under payment of wages was to be heard before the same arbitrator, T Mlilwana on the 23 February 2012 following reference to arbitration on the 6 September 2011.

On record is a notice of appeal dated 2 March 2012 in which respondent alleges unfair dismissal.

The ward before me determined the issue of alleged unfair dismissal and found respondent had been unfairly dismissal and ordered his reinstatement.

I now proceed to address each ground of appeal below:

Ground 1 – Jurisdiction

Appellant argues that the arbitrator had no jurisdiction to deal with this matter.  Two grounds are advanced in this respect.  The first is that section 7.2.2 of the NECCS Code of Conduct provides that an appeal to the Local Joint Committee shall be lodged within seven days from the date of notification of the employer’s decision.

In casu  respondent claims to have received the appeal on the 30 September 2009 and only lodged the appeal on the 27 October 2009.   I find that this was way out of the 7 days prescribed and that there was no application for condonation of the late filing of appeal.  In this respect I find that the appeal was improperly before the Local Joint Committee.  Consequently both the Local Joint Committee and the arbitrator had no jurisdiction to entertain the matter.   Ground 1 therefore succeeds.  I however proceed to deal with the other grounds in case I am wrong in my finding.

Ground 2 – Procedural improprieties

The second ground advanced is that when the designated agent Nhiwatiwa handed out a determination on the 13 December 2010 in favour of respondent, he became functus officio and should not have continued to be involved in the subsequently proceedings especially as the Local Joint Committee had entertained the appeal outside the time prescribed in the Code of Conduct.  The matter is compounded by the manner in which the same designated agent referred two matters for conciliation and then arbitration, including the same parties but at different times with different terms of reference.

I agree with appellant that designated agent Nhiwatiwa became functus officio regarding this matter on the 13 December 2010 when he communicated the decision of the Local Joint Committee regarding the dismissal.  I have relied on the case of Chirambasukwa v  inister of Justice, Legal and Parliamentary Affairs 1998 (2) ZLR 567 (SC) which held that when an administrative official has when an administrative official has made a decision which bears directly, he has discharged his office or is functus officio.  This happens when his decision has been officially communicated to the person affected.

In casu Mr Nhiwatiwa no longer had authority to continue acting on this matter in 2011 through to 2012.

I therefore find that ground of the appeal succeeds.

Ground 3 – Procedural fairness

I note that ground 3 of the appeal also deals with the procedural fairness of the dismissal.  I find that respondent has not advanced any grounds alleging improper conducting of the disciplinary hearing.  I therefore find that the hearing was conducted in terms of the NECCS Code of Conduct and was fair.

There is no basis for me to proceed to consider the propriety of the charges and penalty due to my findings on grounds 1 and 2 of the appeal.

Consequently the appeal succeeds.

There is no order as to costs.