Econet Wireless (Private) Limited v Raphael Machikichi

### Preamble
Judgment No. SC 126/20
1
Civil Appeal No. SC 663/17
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REPORTABLE 	(118)

ECONET     WIRELESS     (PRIVATE)     LIMITED

v

RAPHAEL     MACHIKICHI

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, GUVAVA JA & BHUNU JA

HARARE, OCTOBER 1, 2019 & OCTOBER 6, 2020

M Mbuyisa, for the appellant

M Mtlongwa, for the respondent

GWAUNZA DCJ

[1]	This is an appeal against the whole judgement of the Labour Court sitting at Harare and handed down on 19 May 2017.

FACTUAL BACKGROUND

[2]	The respondent was employed by the appellant as a stores clerk. Allegations were levelled against him to the effect that in June 2014, an invoice of 6000 units of recharge cards was made in favour of a company named Highturn Investments.  The cards were however not issued to the company. It was further alleged that the positive variance of these cards kept on decreasing yet no corresponding sales were made. The respondent was subsequently charged with committing “any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract” in terms of s 4(a) of the Labour (National Employment Code of Conduct) Regulations, 2006 (hereinafter S.I 15/2006). Subsequently, a disciplinary hearing was conducted and the respondent was found guilty of the charge and dismissed from employment. Disgruntled by the disciplinary authority’s decision, the respondent noted an appeal to the appellant’s appeals officer who in turn, upheld the respondent’s dismissal.

[3]	Aggrieved by the decision of the appeals officer the respondent, through his legal practitioners, referred the matter for conciliation. A certificate of no settlement ensued from the conciliation and the matter was referred for arbitration. The labour officer set out the arbitrator’s terms of reference as follows: -

“to determine;

whether the respondent was fairly dismissed and

the appropriate remedy.”

[4]	In his determination of the matter, the arbitrator held that the question of whether or not the respondent was guilty of the charge levelled against him, properly fell within these terms of reference. Consequently, he considered the issue and held that the appellant had not proven its case in certain respects. He also found that the appellant’s failure to give the respondent an opportunity to mitigate after he had been found guilty of the offence prejudiced the respondent’s case as the appellant did not have a platform to persuade the hearing committee to impose a lesser penalty. He further held that the respondent was unfairly dismissed and that in the circumstances the penalty of dismissal was unreasonable. The appellant was ordered to reinstate the respondent or alternatively to pay damages in lieu of reinstatement.

[5]	Unhappy with the arbitrator’s decision, the appellant noted an appeal to the Labour Court. It averred that the arbitrator exceeded his terms of reference by determining whether the respondent was guilty of the charge when he was only engaged to determine whether or not his dismissal was unfair. The appellant argued that s 12B of the Labour Act [Chapter 28:01] was to be given its grammatical meaning to the effect that only under the circumstances specified therein could an employee be said to be unfairly dismissed. Regarding mitigation, the appellant stated that the respondent was given the opportunity to address the disciplinary committee before the verdict was passed in accordance with s 6(4) (e) of S.I 15/2006. Further, that the irregularity if any, was immaterial and could not vitiate the proceedings. The appellant also submitted that s 12B (4) of the Labour Act did not confer on the arbitrator powers to attack the substantive correctness of the verdict. Finally, the appellant averred that the arbitrator grossly erred by interfering with the factual findings of the disciplinary committee in the absence of any proven misdirection or gross unreasonableness.

[6]	The court a quo held that while unfair dismissal in terms of s 12B of the Labour Act relates to procedural fairness, the term itself was broad and did not, therefore, exclude the need to consider the substantive fairness of the verdict, based on the evidence before the tribunal in question. The court reasoned that the respondent’s dismissal was unfair as the appellant failed to take into account several factors that he had alleged. The court held, accordingly, that the arbitrator did not exceed his mandate when he considered factors outside those specified in s 12B of the Act in order to determine whether or not unfair dismissal had been proved. It further upheld the arbitrator’s finding that the disciplinary committee ought to have given the respondent a chance to plead for leniency after the verdict of guilty and before the imposition of the penalty of dismissal.

[7]	The appellant’s grounds of appeal in my view raised two issues for determination and 	these were: -

Whether the arbitrator’s determination of the merits of the charge brought against the respondent was consistent with his terms of reference

Whether the court erred in finding that the respondent was unfairly dismissed.

However, in the process of writing the judgment in this case, the court’s attention was drawn to a more fundamental issue afflicting the procedural route followed in this matter consequent upon the dismissal of the respondent’s appeal by the appellant’s appeals authority. The issue pertains to whether or not the Labour Officer had jurisdiction to attempt a conciliation of the dispute and failing which, to refer it to an arbitrator, in circumstances where disciplinary proceedings were completed under the National Code. This, consequently, called into question the issue of whether or not both the arbitrator and the Labour Court were properly seized with the matter.

[8]	The issue – an important point of law which may be dispositive of this matter - was not raised during all the proceedings that followed the decision of the appeals authority, including the proceedings before this Court. Accordingly, an invitation was extended to the parties, through their legal practitioners, to consider the issue in light of their respective positions in the dispute and file submissions thereon within a given time. The parties’ attention was drawn to two recent decisions of this court namely Mabeza v Sandvick Mining & Anor SC 91/19 and Sakarombe N.O & Anor v Montana Carswell Meats (Private) Limited SC 44/20, which dealt with and made determinations on, the same issue.

The court is indebted to counsel for both parties, for timeously acceding to its request, and filing submissions which greatly assisted in the determination of this matter.

[9]	It is submitted for the appellant that the labour officer to whom the dispute was referred by the respondent had no jurisdiction to entertain the matter, since he or she was not endowed with powers of review or appeal. The appellant relied for this submission on s93(1) of the Labour Act (the ‘Act’) which deals with powers of labour officers, as read with s101(3), (5) and (6) which deal with employment codes of conduct. In this respect the appellant submitted that the principles of law as stated in relation to the issue in the two cases to which the parties’ attention had been drawn (supra), applied with equal force to the circumstances of the case at hand. Finally, it is submitted that the Constitutional Court had occasion to expound on the powers of labour officers in the recent case of Isoquant Investments (Pvt)Ltd t/a Zimoco v Memory Darikwa, and authoritatively stated that in terms of s93(1) of the Act: -

‘all disputes properly referred to a labour officer must first be subjected to the process of conciliation before they are referred to arbitration, depending on the nature of the dispute’ (emphasis by the appellant)

The court in the same case emphasised the point that conciliation was the statutorily compulsory method for the resolution of all disputes and unfair labour practices referred to a labour officer.

[10]	The appellant’s reading of the excerpt cited as well as the point made on the powers of a labour officer, is that the latter can only conciliate or attempt to, all disputes brought to him or her, and not act as an appeal or review tribunal for matters completed in disciplinary proceedings conducted in terms of a registered employment code. Accordingly, and to the extent that the dispute in casu had been determined on the merits by both the disciplinary committee and the appeals authority of the appellant, it is the appellant’s contention that subjecting it to conciliation would have the effect of rendering the disciplinary proceedings ‘a complete waste of time’ given that the parties would have definitively stated their respective standpoints, leaving nothing to conciliate. On this basis, the appellant argues, the dispute had improperly been taken for conciliation before the labour officer, when it should have properly been taken on appeal, to the Labour Court.

The appellant therefore prays that the appeal be allowed, and the matter remitted to the Labour Court to be heard as an appeal in terms of s92 of the Act.

[11]	The respondent, on the other hand, argues that s93(1) of the Act must be read together

with s8(6) of the National Employment Code of Conduct, S.I 15/2006. It is argued for him that a clear reading of the latter provision suggests that the intention of the Legislature was to clothe labour officers with the power to deal with appeals in the same manner as they deal with fresh matters brought before them, that is, attempt a conciliation, failing which issue a certificate of no settlement, and refer the dispute to an arbitrator. That being the case, it is further argued, there was nothing to fault in the procedure that the respondent followed in bringing the dispute to the labour officer following the dismissal of his appeal by the appeals authority. The respondent cited no authorities to support his contentions in this respect. However, should the court not find favour with his submissions, he submits, as has the appellant, that the matter be remitted to the Labour Court for it to be heard as an appeal.

[12]	For the reasons more fully outlined below, I find merit in the appellant’s contentions, and none at all in those of the respondent, on the issue of whether the labour officer and arbitrator had jurisdiction to hear the dispute as presented before them. The position is now settled that a labour officer does not have any jurisdiction under s 93 to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered code of conduct or the Model law. This position was authoritatively stated in Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170 at p 172F-173D, where the court considered the import of s101 (6) of the Act regarding the jurisdiction of a labour officer over matters referred to him. The section provides as follows: -

“101 Employment codes of conduct

(6) 	If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

[13]	In its turn, s 93 relates to the general powers of a labour officer over a dispute or a complaint of unfair labour practice referred to him and states as follows;

“93 Powers of labour officers

(1) 	A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

[14]	In considering these two provisions together, the court stated that s101(6) stipulated the timelines for intervention by a labour officer where there was a delay in the determination of a matter, at the level of the workplace. Further, that it was not a provision which could be resorted to in order to challenge a determination which had already been made pursuant to disciplinary proceedings conducted at the workplace. The court held as follows: -

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(a)	the matter must not be one that is liable to be the subject of proceedings under a code of conduct;

(b)	the matter has not been determined within thirty days of the date of notification; and

(c)	where the parties to the dispute request and are agreed on the issues in dispute (s 93(1)(ii))…………………….

Subsection (6) of s 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined. The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.” (emphasis added)

[15]	The reasoning of the court in the Watyoka case and the sentiments behind it were restated and adopted in two recent decisions of this Court namely Mabeza v Sandvick Mining & Anor and Sakarombe N.O & Anor v Montana Carswell Meats (Private) Limited (supra), as well as in the Constitutional Court case Isoquant (supra) that the appellant correctly cited. The court in the Mabeza case (supra), whose facts are on all fours with those in casu, remarked thus at p 4-5 of the judgment: -

It is obvious that in casu, the termination was effected in terms of the National Code of Conduct. The appellant in this dispute was charged with misconduct in terms of the National Employment Code of Conduct. He was subjected to a disciplinary hearing in terms of a code of conduct as required by the law after which he was dismissed from employment. Given that the appellant was subjected to a properly conducted disciplinary process which culminated in a verdict and a dismissal consequent thereto, a reference to the labour officer alleging unfair dismissal does not accord with the law.

It is therefore clear to the naked eye that he could not lodge a complaint with the labour officer alleging unfair dismissal. The labour officer would not have the jurisdiction to entertain any complaint from the appellant as what the appellant was seeking was the setting aside of the determination of the disciplinary process. This process could only be set aside through an appeal or a review. The process before the labour officer was none of the above. (my emphasis)

[16] 	This Court in the Sakarombe case (supra) elucidated the point relating to the labour officer’s jurisdiction under s 93(1), as follows at p13 para 27 of the judgment: -

The question is what dispute is a labour officer empowered to preside over in terms of s 93(1). The clear principle that emerges from the authorities in which s 93 has been considered is that his mandate is to preside over a fresh hearing wherein a complaint has been lodged against an employer or there exists a dispute between the parties. Consequently, his jurisdiction is limited to matters where there are allegations of unfair labour practices or unfair dismissal.........................

…………………………………………………………………………..

His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection. There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.”

[17]	These findings and conclusions on the law are eminently apposite to the circumstances of this case. The respondent took the matter to the labour officer after he had been subjected to disciplinary proceedings and an internal appeal process that both considered the dispute on the merits. On the basis of the authorities cited above, such referral, being one of a matter already determined and also, seeking to challenge the decision of the appeals authority, fell outside the ambit of s101 (6) and was accordingly improper. As emphasised in the authorities cited, the labour officer’s powers in terms of s93 pertain to original jurisdiction in disputes of unfair labour practice or unfair dismissal, and do not extend beyond conciliation. Further, the arbitrator’s decision interfering, (in the manner of an appeal), with the findings made by the disciplinary committee and the appeals officer, and consequently setting aside the latter’s decision, constitutes gross irregularity whose effect is to nullify the ruling made.

[18]	This finding notwithstanding, it is in my view pertinent to consider the respondent’s submissions as outlined above. While not challenging the authorities just cited, the respondent nevertheless sought to invoke the provisions of subsidiary legislation in the form of s 8 (6) and (7) of the National Code of Conduct, S.I 15/2006, to argue that the labour officer was properly vested with the power to conciliate the dispute despite the matter having already been completed pursuant to the disciplinary proceedings in question. While the powers of a labour officer in terms of s93 relate to conciliation and the initial determination of unfair labour practices and unfair dismissal, these provisions of S.I 15/2006, suggest that it is proper to note an appeal against the decision of an appeals officer in such circumstances, to the labour officer or a designated agent. The provisions are couched in these terms: -

(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 7 working days from the day of receipt of such decision.

(7) 	The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under s 93 of the Act.

[19]	The respondent’s contentions in this respect do not accord with the authorities that have considered this very argument. This court in the Sakarombe case (supra), had occasion to address the patent contradiction between s93 of the Act and s8(6) and (7) of S.I 15/2006. It reasoned that the powers bestowed upon a labour officer under s93 are confined to original jurisdiction over disputes related to unfair labour practices or unfair dismissals. Where, however, the dispute has been considered on the merits at the level of disciplinary proceedings and an internal appeal at the workplace, the court opined that a reference under s8 (6) could not be defined as relating to either an unfair labour practice or unfair dismissal. The reference would be seeking the setting aside of the appeal authority’s decision in circumstances where there was no provision in the Act conferring on a labour officer the powers of appeal or review. To that end, the court found s8(6) of the Model Code to be out of sync with ss105 and 106 of the Act.

The court stated as follows at page 20 of the cyclostyled judgment: -

The provisions of s8(6) and (7) of the Model Code of Conduct must be read together with the Act under which the statutory instrument was promulgated. Where the Code conflicts with any provision of the Act, it stands to reason that the provisions of the Act must prevail. Section 2A (3) provides that the Act shall prevail over any enactment which is inconsistent with it.

I respectfully associate myself with the reasoning and findings of the court as set out above, and find, accordingly, that the respondent’s submissions on this issue, are devoid of merit.

[20]	Based on the authorities considered above, I find therefore that the reference of the dispute to the labour officer was improper since he lacked the jurisdiction to determine a matter that had been completed in disciplinary processes instituted against the respondent, by the appellant. It follows that the certificate of no settlement issued by the labour officer, and on the strength of which the arbitrator entertained the dispute as if it was an appeal against the appeal authority’s decision, was a nullity. The proceedings before the arbitrator, likewise, were a nullity at law. Both the referral and the arbitrator’s decision must, accordingly, be vacated. The same follows with respect to the order of the court a quo.

[21]	This brings me to a consideration of the appropriate order for this court to grant in casu. In the Mabeza case (supra) whose facts are similar to those at hand, this court considered that the Labour Court, in determining the appeal against the arbitrator’s decision, had had regard to the record of proceedings of the disciplinary hearing. It proceeded to consider the appeal on the basis of the Labour Court’s analysis and findings in respect of the evidence placed before the disciplinary Committee. Ultimately, the court dismissed the appeal, effectively upholding the decision of the disciplinary committee.

This approach however, cannot be adopted in casu for the simple reason that there is no indication that the court a quo had regard to the record of proceedings before the disciplinary committee nor that it premised its decision on its own assessment thereof.

[22]	As already indicated both parties are of the mind that should the court rule against the respondent on the preliminary issue of the jurisdiction or lack thereof, of the labour officer to entertain the dispute in the manner he did, the matter may be referred to the court a quo for determination as an appeal against the appeal authority’s decision. This would not only entail setting aside the judgment of the court a quo but would also accord with the order that this court granted in the Sakarombe case (supra). I am satisfied that the order granted in that case may, with appropriate adjustments, be properly be followed in casu.

DISPOSITION

[23]	I have found that the proceedings before the labour officer and the arbitrator were fatally flawed. The court a quo in the light of this, therefore heard, and upheld, an appeal that was in effect a nullity. Accordingly, and to the extent that nothing stands on nothing, the proceedings before the court a quo were similarly afflicted and cannot stand. The respondent having followed a circuitous but wrong procedure in prosecuting his appeal against the decision of the appeals authority, with none of the Tribunals that considered the matter picking up the irregularity, should in the interests of justice, be given another opportunity to properly file his appeal with the Labour Court.

The circumstances of this case as outlined herein in my view do not call for an order of costs against either party.

It is in the result ordered as follows: -

The appeal be and is hereby allowed with no order as to costs,

The proceedings before the Labour Officer, the arbitrator and the Labour Court be and are hereby set aside

The appellant is given leave, should he wish to do so, to file an appeal to the Labour Court against the decision of the appeals officer, in accordance with paragraph 4 herein.

The respondent shall file his notice of appeal to the Labour Court within 15 days from the date of this order.

Thereafter the matter shall proceed in terms of the Labour Court Rules.

GUVAVA JA: 			I agree

BHUNU JA:				I agree

Mtetwa & Nyambirai, appellant’s legal practitioners

Chambati Mataka & Makonese, respondent’s legal practitioners