Zimbabwe German Graphite Mines (Pvt) Ltd t/a Lynx Mine v The Respondent

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/70/16
HELD AT HARARE, 10th FEBRUARY, 2016
CASE NO. LC/H/368/15
AND 19th FEBRUARY, 2016
JUDGMENT NO. LC/H/70/16
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IN THE LABOUR COURT OF ZIMBABWE  	       JUDGMENT NO. LC/H/70/16

HELD AT HARARE, 10th FEBRUARY, 2016                  CASE NO. LC/H/368/15

AND 19th FEBRUARY, 2016

In the matter between:-

ZIMBABWE GERMAN GRAPHITE MINES (PVT) LTD.

t/a LYNX MINE							-	APPELLANT

The appeal was noted against the Arbitral Award by the Honourable Matanhire F. handed down on the 16th of March 2015.

The respondent was employed by the appellant as a Laboratory Technician. He appeared before a disciplinary authority on the 21st of December 2013 to face a charge of FRAUD the allegations being that the respondent did not log in his time of arrival a process which was normally undertaken at the appellant’s main gate. The respondent was alleged to have temporarily left his work station and deliberately avoided using the main gate so that his absence would go unnoticed. The employer’s view was by so misrepresenting to his employer that he was at work during his entire shift when he was not such conduct constituted FRAUD. The

respondent was found guilty on the charge by the Disciplinary Authority. He was consequently dismissed from employment with effect from the 21st of December 2013.

The respondent in exercising his rights then appealed against the determination of the Disciplinary Authority to the Appeal Hearing Authority. He noted his appeal on the 31st of December 2013. The appeal was heard and determined on the 28th of January, 2014. At the appeal hearing the respondent raised the issue that the Appeal Hearing Authority had no jurisdiction to entertain the appeal as the period had exceeded 30 days calculated from the date of notification for the initial disciplinary hearing.

The argument was dismissed by the Appeal Hearing Authority on the basis that the initial disciplinary proceedings had been conducted within three (3) days of notification and secondly on the basis of the period as calculated from the date of noting an appeal which was the 31st of December 2013 with the appeal hearing being determined on the 28th of January 2014 the appeal had actually been finalised within thirty (30) days.

The respondent was dissatisfied with the determination by the Appeal Hearing Authority and referred the matter to a Labour Officer and consequently to arbitration. Before the Arbitrator the terms of reference were to determine an alleged unfair dismissal and the remedy thereof. The Arbitrator in his analysis of the parties’ arguments and the evidence found that the disciplinary process took longer than thirty (30) days as presented in the Labour Act [Cap 28:01] and the relevant Code of Conduct. Having found that there was an irregularity in the proceedings he then proceeded to consider the merits of the matter. He concluded that the charge levelled was improper and had not been proved before the disciplinary authority.

The appellant was aggrieved by the decision and noted the present appeal. The appeal was noted on the following grounds;

“1.	The Honourable Arbitrator erred at law in finding that the disciplinary proceedings had taken more than thirty (30) days to finalise as he erroneously included weekends and public holidays in his computation in violation of the rules of interpretation and regarded the entire appeal process as part of the disciplinary process which ought to be finalised within thirty (30) days.

2.	The Honourable Arbitrator accordingly erred at law in finding that the entire disciplinary process against the appellant was a nullity at law.

3.	The Arbitrator erred at law in concluding that he had jurisdiction to entertain the matter and that it was properly before him.

4.	The Arbitrator erred at law in not determining the issue of whether or not he had jurisdiction to entertain the matter on the basis of a purported nullification of the disciplinary proceedings or complaint of unfair dismissal, as opposed to an appeals, and in then not inviting the appellant to address him on the merits in view of his finding (albeit erroneously) that he had the jurisdiction to entertain the matter.

5.	The Arbitrator erred at law in finding that the charges of fraud (and giving false evidence) had not been proved when it was not in dispute that by not using the main gate and not logging in for work the respondent sought to ensure that there would be no record that he had actually reported for work much later than was expected of him, thus enabling him to claim more wages than he would be legally entitled to. The Arbitrator’s finding in this regard is so irrational in its defiance of all logic that no Arbitrator applying his mind would have arrived at it.

6.	The Arbitrator erred at law in ordering reinstatement of the respondent without loss of salary and benefits when he had committed a dismissible act of misconduct

The respondent in its Notice of Response submitted that the Arbitrator did not err he was correct in his findings; that the disciplinary process had been conducted outside the time frames as laid down in the Labour Act [Cap 28:01]. He had therefore correctly nullified the disciplinary proceedings. He was also correct in finding that the charge had not been sufficiently proved and directed respondent’s reinstatement.

The first issue that the Court ought to address is whether the Labour Officer and by extension the Arbitrator had jurisdiction to entertain the matter upon referral by the respondent to the Labour Officer. In my view a disposal of this issue will ultimately dispose of the rest of the issues raised in this appeal.

The appellant’s position is that the Labour Officer and by extension the Arbitrator had no jurisdiction to entertain the matter on the basis of Section 101(6) of the Labour Act [Cap 28:01]. Firstly the disciplinary proceedings having been finalised within thirty (30) days as envisaged under the Labour Act [Cap 28:01]there was no basis for a referral of the matter to the Labour Officer and ultimately to the Arbitrator.  It is appellant’s contention that the notification

having been given on the 19th of December 2013 the disciplinary process itself being finalised on the 21st of December 2013 the disciplinary proceedings were completed on time. Further the appeal having been noted on the 31st of December 2013 and the appeal determination handed down on the 28th of January 2014 both processes i.e. disciplinary and appeal were finalised within thirty (30) days as envisaged under the Act or Code. Even if the appeal proceedings were to be found to have exceeded the thirty (30) days there was no basis for the nullification by the Arbitrator. The appellant further submits there was no basis for a referral of the matter were the appeal had already been determined. The appellant relied on the decision in Watyoka vs. ZUPCO 2006 (2) ZLR 170 (S) to support its position.

The respondent’s position is that the Arbitrator did not err in reaching the conclusion that the disciplinary proceedings had not been conducted within the stipulated time frames. The respondent having been served with notification to attend disciplinary hearing on the 19th of December 2013 and the final determination in the appeal having been made on the 29th of January some forty (40) days later from the date of receipt of notification the disciplinary process was conducted outside the time-frame as set out in Section 101(6) of the Labour Act and Mining Industry Code of Conduct i.e. Statutory Instrument 165 of 1992. It is respondent’s further position that the Arbitrator was also correct in finding that appellant had failed to prove the essential elements of the charge of FRAUD as laid out in case law.

The Labour Officer and by extension the Arbitrator in this case clearly erred at law in entertaining the matter as the matter was improperly before them. The appellant and the respondent in opposition have both argued on the basis of Section 101(6) of the Labour Act [Cap 28:01]. On the basis of the facts and evidence in the record however the matter was not referred to the Arbitrator in terms of Section 101(6) of the Labour Act [Cap 28:01] as submitted. I proceed to show how.

The record of proceedings shows that the Appeals Hearing Authority had handed down a determination by the time matter was referred to the Arbitrator. The arbitral award handed down by the Arbitrator also shows on the first page that the dispute referred was ‘an alleged unfair dismissal and remedy thereof’. On the second page the award further shows that ‘the matter was referred for Arbitration following an appeal to the Labour Officer in terms of Section 93 of the Labour Act [Cap 28:01]’. This alone clearly shows that contrary to submissions by both parties the matter was referred to the Labour Officer as an appeal in terms of Section 93 of the Act rather than as a referral of a matter in terms of Section 101(6) of the Labour Act [Cap 28:01].

The next issue that follows is whether the matter was properly referred on appeal to the Labour Officer.

The record of proceedings clearly shows that the appeal proceedings were concluded on the 29th of January 2014. The disciplinary process itself was convened in terms of the applicable Code i.e. the Collective Bargaining Agreement: Mining Industry (Code of Conduct) contained in Statutory Instrument 165 of 1992. Under Part D, Section 3(e) of the Code of Conduct a person aggrieved with the decision of the Appeals Hearing Authority shall pursue his rights under the Labour Relations Act, 1985 (as it then was). The provision in the Code of Conduct clearly should be read with Section 92D of the Labour Act [Cap 28:01] which basically provides the following;

“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.”

It is clear therefore that the appeal was improperly placed before the Labour Officer and by extension the Arbitrator. Both had no jurisdiction to entertain the matter. Having come to this conclusion it follows that the appeal ought to succeed. There will be no need for this Court to consider the rest of the grounds raised in this appeal. The arbitral award ought to therefore be set aside. The Court having set aside the arbitral award the decision by the Appeals Hearing Authority dismissing the respondent remains extant.

In the result the Court orders as follows;

The appeal be and is hereby allowed with costs.

The arbitral award handed down on the 16th of March 2015 is hereby set aside.

The respondent shall remain dismissed from employment.

Sawyer and Mkushi – appellant’s legal practitioners

Zvinavakobvu Law Chambers – respondent’s legal practitioners