Esau Zhou v The City of Harare

### Preamble
Judgment No. SC 175/2020
1
Civil Appeal No. SC 286/18
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REPORTABLE		(161)

ESAU     ZHOU

v

THE     CITY     OF     HARARE

SUPREME COURT OF ZIMBABWE

GOWORA JA, MAVANGIRA JA & MATHONSI JA

HARARE, OCTOBER 21, 2019 & NOVEMBER 27, 2020

J. Mambara for the appellant

C. Kwaramba for the respondent

GOWORA JA:	The appellant was formerly employed by the respondent as an operations manager.  Together with a colleague, he was charged with contravening s 4(d) of the Labour (National Employment Code of Conduct) Regulations  2006, S.I. 15 /06 (“the National Code of Conduct”). The allegations against the appellant and his colleague were that on divers occasions between January 2006 and October 2006, they had presented to the City Council of Harare fraudulent quotations in respect of a project for the purchase of computers in the absence of council approval. They were also charged with two counts of contravening s 4(f) of the National Code of Conduct. In this respect the allegations against them were that they were inefficient in the performance of their work in dealing with or allowing staff from the data processing department to deal with unregistered companies and purchasing five heavy duty computers without obtaining the necessary authorization.

The appellant was called to a hearing on 25 April 2007. The proceedings were concluded on 10 July 2007, at which point the appellant made submissions in mitigation. On 27 August 2007, the hearing committee found the appellant guilty on two of the three counts and recommended that he be dismissed from his employment. On 19 September 2007 he noted an appeal to the Chairperson of the Commission of the City of Harare. The appeal record is silent on the fate of that appeal. It would appear that the appeal was never determined. The matter found its way before the Labour Court. The route by which it landed before the Labour Court is found in an award from the learned arbitrator Chimhuka whose award will be dealt with later on in the judgment. He recorded the following:

“The claimant was subsequently dismissed on 6 September 2009. Claimant then filed a notice of appeal with the legal division of the respondent and on 5 October 2009 claimant referred the matter to the National Employment Council Harare Municipality Undertaking. The Designated Agent of the NEC Harare Municipality Undertaking dismissed the case on the basis that it was prescribed. This is also a matter for this tribunal to determine. Aggrieved by the decision the claimant took the matter to the Labour Court which remitted the matter to the NEC Harare Municipality Undertaking. Conciliation was conducted which did not settle the matter and was then referred to me for arbitration in terms of s 93 of the Labour Act [Chapter 28:01].”

I can only presume that the narration of events by the arbitrator is the genesis of the order of the Labour Court, in terms of which the matter was remitted to the NEC Harare Municipality, which is detailed hereafter. On 21 January 2010 the Labour Court ordered as follows:

The matter be and is hereby remitted back to the Employment Council for the Harare Municipality undertaking for conciliation.

The Employment Council for the Harare Municipality be and is hereby ordered to appoint a different designated Agent to deal with the matter.

Costs to be in the cause.

On 15 April 2010, presumably arising from the order of the Labour Court, the appellant filed a complaint of unfair dismissal with the labour officer. Going by the narration above, arbitrator M Chimhuka was appointed as arbitrator in the proceedings. On 11 November 2010, the arbitrator issued the following award:

“In respect to the question of whether or not the case is prescribed, I rule that this case is not prescribed and that the employee was unfairly dismissed.

The dismissal of the claimant is set aside and substituted by the following:

Respondent is ordered to reinstate claimant to his position without loss of salary and benefits.

If reinstatement is no longer tenable, the respondent is to pay claimant damages in lieu thereof, the quantum of which should be negotiated by the parties, failing which either party may approach this arbitral tribunal for quantification.”

The respondent appealed to the Labour Court, on the grounds that the arbitrator erred in finding that the claim had not prescribed and, additionally, in finding that the appellant had been unfairly dismissed. On 27 January 2012, the Labour Court handed down its decision. The Labour Court allowed the appeal and set aside the determination by the arbitrator. It found that the matter had prescribed by the time the appellant referred it to the labour officer on 5 October 2009.

The appellant now appeals with leave on the following grounds:

“1.	That the learned president erred and misdirected herself by mero motu finding as a fact that the respondent had no appeals authority in terms of the National Employment Code of Conduct.

The learned president erred by making a finding that the appeal was noted in terms of Statutory Instrument 17 of 2007 when the notice of appeal has no citation on the face of it. In any case the appellant was charged in terms of S.I. 15 of 2006.

The learned president misdirected herself by making a finding that the appeal noted was invalid.

The learned president erred by making a finding that the matter should have been referred to a labour officer immediately after a determination was made by the disciplinary committee. This finding led the learned president to misdirect herself on the issue of prescription and generally on the conclusion she then reached.

The learned president erred by deciding the appeal on technicalities only without delving into the merits of the matter contrary to the principles underlying the way labour matters should be handled.”

The appellant prayed that the appeal be allowed resulting in the appeal before the Labour Court being dismissed.

ISSUES FOR DETERMINATION ON APPEAL

At the hearing of this matter the Court invited the parties to address it on a number of irregularities which emanate from the record. Although the appellant was subjected to a disciplinary process under the aegis of the National Code of Conduct, it is evident that subsequent proceedings did not adhere to the procedures set out in the National Code of Conduct.

The appellant was subjected to a disciplinary hearing at which he was found guilty of misconduct and dismissed. It stands to reason, therefore, that the only way that the matter could have been dealt with subsequently was through an appeal process. I start with the most glaring irregularity which is the reference to arbitration by the Labour Court through its order of the 11 March 2010. The process by which it came before the Labour Court is detailed in the arbitral award from the learned arbitrator.

The arbitrator recorded the terms of reference on the submission of the dispute to him as being:

Whether or not the matter was prescribed in terms of s 94 of the Labour Act [Chapter 28:01]; and

Whether or not the complainant was unfairly dismissed.

The appellant was charged and convicted of two counts of misconduct in terms of S.I. 15 of 2006, the National Code of Conduct. Before the arbitrator, the position placed for adjudication on his behalf was that he had noted an appeal to the respondent in terms of S.I 17 of 2007. The notice of appeal filed on his behalf by Messrs Hute & Partners is dated 19 September 2007. The appellant was dismissed on 6 September 2007. The appellant was charged and convicted of misconduct under the National Code of Conduct. Any challenge to the proceedings or findings of the disciplinary committee could only have been in accordance with the provisions of the National Code of Conduct. The right to challenge such proceedings is found in s 8 of the code. It provides as follows:

8. Appeals

(1) Depending on the size and circumstances of an establishment or a workplace, an employer may appoint a person in his or her employment as an Appeals Officer or with the agreement of his or her employees or worker representatives, an Appeals Committee to preside over and decide on appeals.

(2) Any internal appeal structures shall be limited to not more than two appeals authorities.

(3) A person or party who is aggrieved by a decision made in terms of section (2) may, in writing, note an appeal within seven working days with the Appeals Officer or Appeals Committee.

(4) The Appeals Officer or Appeals Committee, as the case may be, may call for a formal hearing to hear the appeal or decide from the record submitted.

(5) An Appeals Officer or Appeals Committee, as the case may be, shall have 14 working days from the date of receipt of the appeal, to dispose of the appeal.

(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.

(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 section 93 of the Act.

As is evident from a perusal of the above provision, the appellant was entitled, in terms of s 8(3) of the National Code of Conduct, to note an appeal within seven working days with the Appeals Officer or Appeals Committee. He did not proceed as provided in the National Code of Conduct. Instead, he filed his appeal on 19 September 2007. This was outside the seven working days provided for in the National Code of Conduct under which he was charged and dismissed. There was as a result no appeal pending before the respondent’s appeals structure.

On 1 October 2009, acting on his instructions, Messrs Mambara & Partners addressed a letter to the designated agent within the Harare Municipality Undertaking, referring the matter for conciliation and arbitration in terms of S.I. 17 of 2007 on the premise that the respondent had failed to deal with the appeal filed on 19 September 2007. This reference to conciliation and arbitration had no basis at law. The appellant had been dealt with under S.I. 15 of 2006 and his matter fell for resolution under the National Code of Conduct. In addition, since the matter had been heard on the merits by a disciplinary authority, it stands to reason that the labour officer did not have the jurisdiction to hear it for purposes of conciliation. On that basis, the designated agent lacked the requisite jurisdiction and the proceedings before the Labour Court, which were the genesis of the order issued on 11 March 2010 remitting the matter to the Employment Council for the Harare Municipality Undertaking for conciliation were, a nullity. The order itself being founded on a nullity could not result in valid proceedings.

As a consequence, the award by Arbitrator M Chimuka, which is the subject matter of the appeal before the Labour Court was itself based on invalid proceedings. The arbitrator had no basis at law to hold arbitration proceedings in the face of a disciplinary hearing which convicted the appellant on two counts of misconduct and which proceedings had not been set aside or declared invalid. In ZUPCO (Northern Division) v Watyoka 2006 ZLR (2) 170 (S), this Court said:

“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.”

Those remarks apply with equal force in casu. A reference to conciliation under the Labour Act is only in terms of s 101 of the Act. A labour officer can only exercise powers bestowed upon him in accordance with s 93 of the Act.  A referral to a labour officer in the circumstances prevailing in the appeal before this court would seek to challenge the determination made by the disciplinary authority. That is inconsistent with the law and would amount to an irregularity.

It is my view therefore that there was no appeal before the Labour Court, as all the processes undertaken by the appellant subsequent to his dismissal were not founded upon the appropriate law. All the proceedings must, in the exercise of our powers of review as provided for in s 25 of the Supreme Court Act [Chapter 7: 13], be set aside.

DISPOSITION

Mr Mambara accepted that the matter could not have legally been referred to a labour officer. He suggested that the matter should be remitted to the respondent with a directive that the respondent sets up an appeals committee to consider the appeal. I do not believe that this is the proper way to deal with the matter. Before the arbitrator M Chimuka, the appellant stated that he had noted an appeal in terms of S.I. 17 of 2007. He also stated that the appeal was noted on 19 September 2007. Having been dismissed under S.I. 15 of 2006, he was obliged to comply with the time limits and procedures provided for therein. He did not do so. Not only did he fail to comply with the time frame provided in the National Code of Conduct, he stated categorically that he had noted an appeal in terms of a statutory instrument other than the one under which he had been disciplined and dismissed. There is therefore no appeal pending and as a consequence there will be no remittal.

Since there was no valid appeal before the Labour Court, this matter may be struck off the roll. Neither of the parties has succeeded on the merits and each party should be made to pay its own costs.

The proceedings which followed the dismissal of the appellant on 6 September 2007 will by this judgment be set aside on the grounds that they are irregular.

In the premises, the following order will issue:

The matter be and is hereby struck off the roll with each party bearing its own costs.

In the exercise of the powers of review vested in the Supreme Court in terms of s 25(2) of the Supreme Court Act [Chapter 7:13], all the proceedings embarked on by the appellant subsequent to his dismissal on 6 September 2007 be and are hereby set aside on the grounds that they constitute an irregularity.

MAVANGIRA JA			:            I AGREE

MATHONSI JA				:            I AGREE

J Mambara & Partners legal practitioners for the appellant

Mbidzo, Muchadehama & Makoni legal practitioners for the respondent