Chikomba Rural District Council v Kenneth Mundopa

### Preamble
Judgment No.SC 49/25
1
Civil Appeal No. SC 199/24
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REPORTABLE (49)

CHIKOMBA     RURAL     DISTRICT    COUNCIL

v

KENNETH     MUNDOPA

SUPREME COURT OF ZIMBABWE

BHUNU JA, CHIWESHE JA & MUSAKWA JA

HARARE: 21 JUNE 2024 & 26 JUNE 2025

Ms R. Mabwe, for the appellant

L.C. Ndoro with T.L. Mazani, for the respondent

BHUNU JA:

This is an appeal against the judgment of the Labour Court (the court a quo) which upheld the arbitrator’s award reinstating the respondent to his employment without loss of salary and benefits.

BRIEF SUMMARY OF THE FACTS

The appellant is a Rural District Council.  It runs several clinics and hospitals in Chikomba District manned by nurses.  The respondent was one of them.  He was employed in 2003.  The parties had a written contract of employment.

The respondent was originally stationed at Wilshire Clinic in Chivhu as the Nurse in Charge.  In 2007 he was transferred to Chivhu General Hospital as a disciplinary measure for absence from duty without cause.  Whilst at Chivhu General Hospital he was again absent from duty without leave for a prolonged period of one and a half years from 24 October 2008 to                        20 May 2010.  Consequently, he was subjected to disciplinary action before the arbitrator who rendered an award in his favour.  Aggrieved, the appellant appealed to the Labour Court (the court a quo) without success.  It now appeals to this Court for relief.

Although the respondent was employed by the appellant in terms of his written contract of employment, his salary was being paid by the Ministry of Health and Child Welfare                       (the Ministry) through a grant to all rural council nurses.  The grant aid was meant to align salaries of rural council health personnel’s salaries to those employed in government.  In a letter dated 16 June 2011 the Secretary for Health elaborated on the motive for providing the grant saying:

“The decision by the Central Government to administer the payment of grant aided Council Health personnel salary bill was motivated by the desire to ensure a sustainable provision of health services throughout the country,”

It is common cause that the respondent left his post at Chivhu General Hospital to attend an inter-Hospital Sports Gala in Mutoko only to pitch up at work one and a half years later sometime in March 2010 complaining of nonpayment of his salary.  Believing that the respondent was now an employee of the Ministry because it was paying his salary and benefits, the appellant referred him to the Ministry.

The Ministry obliged and set up a suitability board (the board) to investigate the respondent’s suitability as its employee.  The respondent submitted to the jurisdiction of the Board.  He was consequently charged with absconding from work without cause in contravention of s 44 (2) (a) of the Health Services Regulations 2006.

The Ministry’s Suitability Board found that the respondent was absent from work for a continuous period of one and a half years from 27 October 2008 to 20 May 2010. Consequently, the Suitability Board recommended that he be charged with and dismissed from employment for absence from duty without cause.

Before the Ministry could complete its disciplinary procedures, the respondent abandoned the proceedings and approached the appellant with the same complaint.  A dispute then arose resulting in the matter being referred to arbitration

The respondent took the matter to the arbitrator and obtained a default judgment against the appellant. The appellant however successfully applied for rescission of the default judgment, whereupon the matter was referred back to arbitration for a full hearing                        de novo.

THE RESPONDENT’S CASE BEFORE THE ARBITRATOR

The respondent conceded that he was transferred from Wilshire Clinic to Chivhu General Hospital as a disciplinary measure.  He however submitted that his salary ceased in 2009. Before the arbitrator, he was asked to explain the circumstances surrounding his absence from work during the period spanning from 27 October 2008 to 20 May 2010.  This is what he had to say in his own words:

“Things were tough in 2008 and I was to look for alternative employment. Therefore came the industrial action by nurses country wide. I was at home in Rusape and failed to raise the bus fare up to February 2009. I reported for duty at Council Offices and was informed by Mr Chandiwana EO Health that I was no longer their employee. I informed him about the amnesty offered to health workers and he referred me to the DNO at Chivhu Hospital. I had accrued 90 days’ vacation leave days so I filled in forms and left them at the EO’s office. My salary had now been ceased so I approached the DNO at Sadza Hospital for the assessment hearing which was later changed to take place at Chivhu Hospital as advised by the DNO”.

The long and short of his defence is that he absconded from going to work on account of incapacitation. It was his contention that, because the appellant had caused the incapacitation he considered himself to be still at work.  He thus prayed for reinstatement without loss of salary and benefits.

THE APPELLANT’S CASE BEFORE THE ARBITRATOR

The appellant countered that government took over payment of salaries of its nurses in 2007.  In that year the Ministry of Health and Child Care provided a grant to assist in the payment of its nurses’ salaries so as to bring them at par with those employed by Government. In March 2009 the Ministry ceased paying the respondent’s salary because he had absconded from duty. The appellant considered the Ministry to be the respondent’s employer because it had taken over the payment of his salary.  For that reason it referred the respondent to the Ministry which endeavoured to take disciplinary action against the respondent. It then constituted a suitability board to enquire into the respondent’s suitability to remain in employment and make appropriate recommendations.

The respondent however, later went back to the appellant claiming reinstatement.  The appellant refused to take him back after an absence without leave for a period spanning one and a half years.  It further disowned him as its employee and referred him to the Ministry.

On those facts the appellant contended that it was no longer the respondent’s employer because it was relieved of the obligation of paying the respondent’s salary.  By taking over the payment of salaries for its nurses The Ministry of Health became their employer.

THE ARBITRATOR’S AWARD

On the basis of the disputed and undisputed facts, the arbitrator found that the act of providing a grant for the payment of salaries of the appellant’s employees did not convert them into being the Ministry’s employees.  They remained the appellant’s employees.

He found that the respondent was employed by the appellant on a contract without limit of time since 2003.  Having come to that conclusion he held that the respondent was charged under the wrong code of conduct because the Ministry’s code of conduct was not applicable to the respondent. That being the case, the respondent continued to be the appellant’s employee until lawfully dismissed.

THE COURT A QUO’S JUDGMENT.

Dissatisfied with the arbitrator’s award, the appellant appealed to the Labour Court on                    6 September 2022.  It argued that the arbitrator erred in not finding that the respondent absconded from employment for a period in excess of a year and that by such conduct, the respondent repudiated its contract of employment and he ceased to be an employee of the appellant.  It further argued that the arbitrator therefore erred in holding that the respondent had been unlawfully dismissed from employment.

In contrast, the respondent argued that the issue of repudiation was being raised for the first time on appeal as it was not raised during arbitration proceedings.  He argued that the respondent had been dismissed from work without a disciplinary hearing in terms of his contract of employment.

He further contended that the appellant had edited its minutes and omitted its Human Resources Assistant from the minutes to give the impression that the respondent was dismissed by the Ministry of Health and Child Care. The respondent submitted that he reported the matter to the police and the appellant was convicted of fraud by the Marondera Magistrate Court under CRB No. MRDP 954/19.21.  He argued that he was an employee of the appellant at all material times and not the Ministry of Health and Child welfare.

Having considered the competing arguments, the court a quo found that repudiation of the contract of employment was never an issue before the arbitrator. The court a quo accordingly held that the arbitrator could not be faulted for not making a ruling on an issue that was not before him.  Having said that, the court a quo concurred with the arbitrator that the respondent was employed by the appellant at all material times.  It found that the Ministry had denied that it had taken over rural councils’ workers as its own employees by merely providing a grant to assist in the payment of salaries. The court a quo accordingly upheld the arbitrator’s finding that the respondent was never transferred to be the Ministry’s employee. He therefore remains the appellant’s employee until his contract of employment is lawfully terminated in terms of his contract of employment. The court                    a quo accordingly dismissed the appeal.

GROUNDS OF APPEAL

Aggrieved, the appellant appealed to this Court on the following 3 grounds of appeal:

The court a quo misdirected itself when it refused to consider the appellant‘s ground of appeal which was premised on the respondent‘s repudiation of the employment contract on the basis that the argument had not been raised in the Tribunal a quo yet the question of repudiation is a point of law which the appellant was entitled to raise at any stage.

The court a quo grossly erred, such error amounting to an error of law when it determined that the respondent was an employee of the appellant at the time his contract was terminated.

The court a quo erred in law when it determined that the respondent had been dismissed from employment by the appellant yet he had repudiated his employment contract and his application to re-join the Ministry of Health refused.

RELIEF SOUGHT

On the basis of the above grounds of appeal the appellant sought the following relief:

The appeal is allowed with costs.

The determination of the Honourable Arbitrator Musodza B dated 4 August 2022 be and is hereby set aside and substituted with the following:

“The claimant’s claim be and is hereby dismissed.”

THE ISSUES FOR DETERMINATION

The three grounds of appeal raise only two issues for determination:

Whether repudiation of the respondent’s contract of employment was an issue before the arbitrator. If not whether the court a quo was correct in dismissing the application to raise the issue for the first time on appeal.

Who was the respondent’s employer at the time of termination of his contract of employment?

Whether repudiation of the respondent’s contract of employment was an issue before the arbitrator.  If so whether the court a quo was correct in dismissing the application to raise the issue for the first time on appeal.

Whether or not the question of repudiation of the respondent’s contract of employment was an issue before the arbitrator is a question of fact. The question as to whether the respondent’s admitted prolonged absence from duty for a period spanning one and a half years amounts to a repudiation of his contract of employment, is a question of law.

On the facts of this case, it is common cause that the respondent was absent from employment for a period of more than one and a half years. The burning question is, whether that prolonged absence from duty amounts to repudiation of his contract of employment.

Before the court a quo the appellant sought to introduce the issue of repudiation of the respondent’s contract of employment.  The court a quo dismissed the issue on the basis that it had not been raised before the arbitrator. The issue which then arises is whether or not the court a quo was correct in declining to entertain the new issue on the basis that it had not been raised before the arbitrator.

It is a general principle of our law that an appellate court is loath to determine an issue which has not been raised and determined by the lower court. The Labour Court is however not an ordinary appellate court of law. It is a special court of equity imbued with the power to do simple justice without being entangled in legal intricacies and technicalities. In the well-known case of Dalny Mine v Banda 1999 (1) ZLR 220 (S) at p 221 The Court held that:

“As a general rule, it seems to me undesirable that labour matters should be decided on the basis of procedural irregularities. By this I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right. This can be done in one of two ways:

By remitting the matter for hearing de novo and in a procedurally correct manner:

By the tribunal hearing the evidence de novo”

To this end, the legislator has clothed the Labour court with the unusual discretionary power in the case of an appeal to conduct a full hearing of the matter as if it was a court of first instance in order to do justice between the parties. This discretion may be exercised to avert fundamental injustice arising from improper handling of matters by often untrained personnel in the lower courts and tribunals.  Section 89 (2) (a) of the Labour Act [Chapter 28:01] provides as follows-:

“(2) In the exercise of its functions, the Labour Court may –

In the case of an appeal  -

Conduct a hearing into the matter or decide it on the record or

Confirm, vary, reverse or set aside the decision order or action that   is  appealed against, or substitute its own decision or order;

…

…

In the case of an application made in terms of subpara (i) of subs (7) of section ninety-three, remit it to the same or different labour officer with instructions directing that officer to attempt to resolve it in accordance with such guidelines as it may specify.

It is apparent from the Act that the court a quo’s power to remit is restricted to labour officers only as specified under s 89 (2) (b). There is no power to remit to an arbitrator. This is because once an arbitrator has discharged his or her mandate, by rendering an award, they lose their mandate and cease to be arbitrators in the case. In that case there would be no one to remit the matter to.

The discretion to hear a matter afresh ought to be used sparingly in order to safeguard the ends of justice. That discretion should only be exercised in circumstances where doing otherwise would amount to grave injustice or prejudice on the other party.

Our law generally allows a point of law to be raised at any stage of the proceedings unless doing so will visit the other party with serious injustice or prejudice. In Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S), this Court held that:

“It was proper to raise a point of law, which went to the root of the matter, at any time, even for the first time on appeal. If its consideration involved no unfairness to the party against whom it was directed.”

In this case the respondent admitted being absent from employment for a prolonged period spanning one and a half years. The inordinate absence from work without leave raises eyebrows. His defence was that he was incapacitated from going to work because of the paucity of his salary. During the period of his absence from work he endeavored to find alternative employment without success. It is only then that he decided to go back to his employment with the appellant. The legal question to be answered is whether the circumstances under which the respondent absconded himself from work amount to repudiation of his contract of employment. Whether or not the respondent was incapacitated from going to work by reason of the paucity of his remuneration is a question of fact which may be resolved by way of a hearing.

The legal issues the appellant intends to raise are of paramount importance forming the gravamen of the parties’ contractual dispute. Repudiation of one’s contract of employment is a unilateral act akin to resignation. It needs no action on the part of the employer to validate it. The question as to whether the respondent repudiated his contract of employment also raises jurisdictional issues as to whether industrial courts and tribunals have jurisdiction over a litigant who has repudiated their contract of employment and ceased to be an employee by operation of law.  That issue arises from the fact that s 3 of the Labour Act restricts the application of the Act to specified employees thereby excluding former employees from the jurisdiction of the court a quo pertaining to disputes arising after termination of employment.

The court a quo therefore  misdirected itself and strayed into error when it shied away from invoking the provisions of s 89 (2) (a) (i) to determine the burning issue of repudiation raised by the appellant albeit belatedly. This was a proper case where the court a quo was duty bound to hear the matter afresh as if it was the court of first instance in order to do justice between the parties. This was especially so because the arbitrator had completed his mandate and moved out of the picture. That act had the effect of stripping him of his mandate to hear and determine the dispute again without a fresh mandate. There was therefore no one to remit the matter to, leaving the court to resolve the dispute afresh to iron out the complaints of irregulaties and omission made against the arbitrator’s award.

Having come to the conclusion that the court a quo misdirected itself in not hearing the matter afresh in order to do justice as prescribed by law, it is necessary to invoke the court’s review powers under s 25 of the Supreme Court Act and remit the matter for a hearing               de novo by the court a quo.

There is nothing to persuade the court from departing from the norm that costs follow the result.

It is accordingly ordered that:

The appeal succeeds with costs.

The judgment in case number LC/H/616/23 and the entire proceedings in case number LC/811/22 of the Labour Court be and is hereby set aside..

In terms of s 25 of the Supreme Court Act [Chapter 7:13] it is ordered that the matter in case number LC/H/ 811/22 of the Labour Court be and is hereby remitted to the court a quo for a hearing de novo in terms of s 89 (2) (a) (i) of the Labour Act [Chapter 28:01] taking into account the issue of repudiation of the respondent’s contract of employment.

CHIWESHE JA		:	  I agree

MUSAKWA JA		:	I agree

Gill, Godlonton & Gerrans, appellant’s legal practitioners

Tondlanga & Associates, respondent’s legal practitioners