Gilbert Rumadhi v Colcom Foods (Private) Limited

### Preamble
Judgment No. SC 19/20
1
Civil Appeal No. SC 35/19
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REPORTABLE 	(17)

GILBERT     RUMADHI

v

COLCOM     FOODS     (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, GARWE JA & MAKONI JA

HARARE, JUNE 14, 2019

Appellant in person

E.N Dube, for the respondent

GWAUNZA DCJ

[1]	This is an appeal against a judgment of the Labour Court handed down in May 2013 which dismissed the appellant’s appeal after a consideration of the merits. After perusing the record and hearing submissions from parties, the court upheld the preliminary point that was raised by the respondent and dismissed the appeal. Reasons for the order have been requested by the appellant. These are they.

FACTUAL BACKGROUND

[2]	The appellant was employed by a company known as “Kinsfolk Enterprises” which is a subsidiary of Innscor Africa. He was employed as a “pastry sheeter”. On 1 December 2007 Kinsfolk Enterprises was transferred to the respondent. Through a letter dated 21 December 2007, the appellant together with 20 other employees of Kinsfolk Enterprises were notified that they were being transferred from the respondent’s baking industry to the meat, fish, poultry and abattoir industry and were now under the respondent. In a letter to the appellant, the respondent explicitly stated that his conditions of service would remain the same after the transfer, particularly that he would continue to fall under the baking industry and that his salary, grade, job description and pension benefits would also remain the same as they were before the transfer.

[3]	Subsequently, the respondent alleged that an agreement was later reached at a Works Council meeting to the effect that the appellant and the 20 other employees of the respondent had to adopt the meat, fish, poultry and abattoir conditions of employment. It was also agreed that this agreement would supersede the employees’ contracts of employment that were in place. The 20 employees accepted the changes but the appellant rejected them arguing that the conditions were less favourable to the conditions that were applicable in the baking industry.

[4]	This prompted the appellant to raise a complaint of unfair labour practice with the respondent’s grievance committee in July 2010, on the basis that his salary and benefits were not being paid according to the Baking Industry National Employment Council Agreement. To this end, he contended that his conditions of service had been unilaterally varied by the respondent.

[5]	On 2 September 2010, a grievance hearing was conducted by the respondent. It then advised the appellant that his conditions of employment were aligned to the Meat, Fish, Poultry and Abattoir Industry Collective Bargaining Agreement. Further, that the benefits and conditions from the baking industry could not be made to apply to him as the two industries were distinctly different and separate from each other.

[6]	The appellant thereafter referred the matter for conciliation in July 2011 where a certificate of no settlement was issued. The matter was referred for arbitration but the arbitrator declined jurisdiction to deal with the matter. He held that the respondent’s employment code of conduct did not give the National Employment Council and its designated agents jurisdiction to determine the dispute. Rather, after exhausting all domestic remedies, employees had the right to appeal to the Labour Relations Tribunal, that is, the court a quo. Aggrieved by this determination, the appellant appealed to the court a quo on only one ground of appeal that challenged the decision of the Arbitrator to decline jurisdiction to determine his appeal.

[7]	Without first taking a position on whether or not the arbitrator had the requisite jurisdiction, the court a quo proceeded to delve into the merits of the matter. It held that the appellant had never denied being part of an in-house agreement in terms of which the employees would move to the meat industry conditions of employment. In view of this finding, the court dismissed the appeal. This the court did after noting that the appeal had been filed outside of the 14 days prescribed by the respondent’s code of conduct. It should be noted that the reasons for the court a quo to proceed to hear the matter when the appeal was noted out of time and in the absence of an application for condonation of the late noting of the appeal, do not appear in its judgment.

[8] 	Disgruntled at the dismissal of his appeal, the appellant filed this appeal on the following grounds: -

“i. 	The court a quo grossly erred and misdirected itself   on a point of fact which amounts to error in law by concluding that there was an agreement to vary conditions of service between appellant and the respondent in the absence of such written agreement.

ii. 	The Respondent unilaterally varied the terms of conditions of service contrary to the terms and conditions of his transfer in terms of s 16 of the Labour Act as read with s 2A (c) of the Labour Act [Chapter 28:01].”

[9]	In its heads of argument, the respondent raised a point in limine, to the effect that the grounds of appeal were improperly before the court as they related to and arose from what the court a quo stated obiter. This submission was made in view of the fact that the single ground of appeal that was placed before the court a quo raised only one question for determination which was whether or not the arbitrator had jurisdiction to hear the matter. Thus, the court a quo was not called upon to make a determination on the merits of the matter. On that basis, the respondent urged the court to dismiss the appeal.

[10]	There is merit in the point in limine raised by the respondent. A perusal of the appellant’s notice of appeal to the Labour Court shows that he premised his appeal on only one ground as follows: -

‘The arbitrator grossly erred at law by declining to hear the matter for want of jurisdiction despite it being provided (sic) by the employment code of conduct.’

This was the sole issue that the court a quo was called upon to determine. Although not proceeding to make a pronunciation on this issue, it is evident from a reading of its judgment that the court did address its mind to the sole ground of appeal before it. It cited the provisions of the respondent’s code of conduct that expressly ousted the jurisdiction of the arbitrator to hear the appeal that the appellant sought to place before him. The court a quo thus, impliedly, was not persuaded there was merit in the appellant’s sole ground of appeal. The court was however enjoined to explicitly pronounce its finding on the sole ground of appeal placed before it. That it did not do so was clearly a misdirection.

[11]	The importance of determining disputes placed before a court by the parties was stressed by this court in Nzara & Ors v Kashumba & Ors SC 18-18 where at p 11 of the cyclostyled judgment, it was stated: -

“The function of a court is to determine disputes placed before it by the parties. It cannot go on a frolic of its own.”

The court a quo ought to have premised its determination of the matter before it, on a pronouncement as to whether or not the arbitrator had properly declined jurisdiction to hear the appeal placed before him.  Thus a finding that the arbitrator had the requisite jurisdiction would have led to an order granting the appeal. Conversely, a finding by the court that the arbitrator did, indeed, lack the requisite jurisdiction would and should have, properly founded an order dismissing the appeal before it.

[12]	The court a quo, as already indicated, dismissed the appeal on a basis other than the sole ground of appeal advanced by the appellant. It had proceeded to determine the merits of the matter and address itself to issues not considered by the arbitrator, contrary to its role as an appellate tribunal. The appeal before it was not one on the merits of the dispute between the parties. This defect could not have been cured by any agreement between the parties, as submitted by the appellant, that the court a quo could address the merits of the matter. It is the law and not the parties, that dictates what a court may properly determine. The court a quo therefore and improperly so, determined a matter not properly before it.

[13]	The sentiments on such an approach, expressed in the Nzara case (supra) are appositely echoed in Jacob Bethel Corporation v Chikuya SC 48/19 wherein the court stated as follows at p 8 of the cyclostyled judgment: -

“The point that may seem to cloud issues is whether or not the court a quo sitting as an appeal court on the quantum of the award could determine the merits of the matter and find as it believed it did, that the order by the arbitrator finding the appellant liable for bonus payments to the respondent was correct. Clearly it could not. The court a quo could not make such a decision as there was no appeal before it on the merits of the matter.... The “finding” of the court a quo confirming the correctness of the arbitrator’s finding on liability was of no legal import for want of jurisdiction. Consequently, the court a quo could not rely on this to base its purported quantification of a non-existent obligation or liability.” (emphasis added)

[14]	By parity of reasoning, once the court a quo found, (albeit impliedly), that the arbitrator had no jurisdiction to hear the appeal placed before it, it should have dismissed the appeal and that ought to have been the end of the matter. The law is clear that a judicial officer should put to rest or make a determination on the issues placed before it. (See P.G Industries (Zimbabwe) Limited v Bvekerwa & Ors SC 53/16 and Gwaradzimba v C.J Petron & Company (Proprietary) Limited SC 12/16). Thus the court erred in dismissing the appeal on the basis of a wrong premise.

[15]	A pertinent issue, however calls for comment. The court a quo seems to have, mero motu observed that the appeal before it had been noted outside the prescribed time limits. It however immediately brushed aside this significant defect in the appeal without proffering any reasons for it, and indicated it would proceed to determine the matter on the merits. Inexplicably however, the merits the court then proceeded to consider and determine were those pertaining to the main dispute between the parties, and not the merits pertaining to the appellant’s sole ground of appeal.

DISPOSITION

[16]	In all respects therefore the court a quo misdirected itself in determining the matter before it, in the manner that it did. Its dismissal of the appeal before it, albeit based on an erroneous premise, was nevertheless correct.

[17]	It was for the reasons set out herein, that the appeal was dismissed with no order as to costs.

GARWE JA:			I agree

MAKONI JA:		I agree

Chinawa Law Chambers, respondent’s legal practitioners