Munchville Investments (Private) Limited t/a Bernstein Clothing v Chiedza Mugavha

### Preamble
Judgment No. SC 62/19
1
Case No. SC 112/16
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REPORTABLE	(58)

MUNCHVILLE     INVESTMENTS     (PRIVATE)     LIMITED

T/A BERNSTEIN     CLOTHING

v

CHIEDZA     MUGAVHA

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, GOWORA JA & PATEL JA

HARARE, JULY 10, 2018 & SEPTEMBER 19, 2019

T. Mpofu, for the appellant

T. Marume, for the respondent

PATEL JA:	   This is an appeal against the judgment of the Labour Court dismissing an appeal against an arbitrator’s award. The arbitrator, having found the respondent’s initial purported dismissal and every measure taken by the appellant thereafter to have been unlawful, ordered the appellant to reinstate the respondent to her position or pay her damages in lieu of reinstatement.

BACKGROUND

The respondent was employed as the appellant’s Merchandise Manager on 1 February 2011. After serving her three months probationary period, she was confirmed as a permanent employee on 16 May 2011.

On 5 September 2011, the respondent received a text message from the appellant’s Managing Director instructing her to go home and to surrender the company motor vehicle and laptop assigned to her. Subsequently, on 13 September 2011, the Managing Director sent her an e-mail stating that her contract of employment had been terminated with effect from that date. On 30 September 2011, the appellant sought to reverse this decision and ordered her to return to work, before suspending her on 6 October 2011 and convening a disciplinary hearing on several allegations of misconduct. The respondent challenged those proceedings on the basis that she had already lodged a complaint before a labour officer. Nevertheless, the appellant proceeded with the disciplinary hearing in the respondent’s absence and, having found her guilty of misconduct, dismissed her on 28 October 2011.

Before the Labour Court, it was common cause that the first dismissal of 13 September 2011 was unprocedural and therefore unlawful. It was also common cause that when the second dismissal was effected the labour officer to whom the first dismissal had been referred was already seized with the matter.

The court a quo found that the appellant was aware of the conciliation proceedings before the labour officer and therefore should not have conducted any disciplinary proceedings. By doing so before the conciliation proceedings had been concluded, the appellant had breached the principle of lis alibi pendens. The court agreed with the arbitrator that the correct procedure would have been for the appellant to persuade the respondent to withdraw the proceedings before the labour officer or to agree to a certificate of settlement from the labour officer, before instituting fresh disciplinary proceedings against the respondent. The court a quo accordingly found that the subsequent dismissal was also unlawful and dismissed the appeal with costs.

GROUNDS OF APPEAL AND RELIEF SOUGHT

There are four grounds of appeal in this matter, some of which overlap in attacking the decision a quo and one of which relates to an irrelevant provision of the Labour Act [Chapter 28:01]. At the hearing of the appeal, Mr. Mpofu, for the appellant, quite properly conceded these incongruities and confined himself to argument on the two critical aspects of the appeal.

The first issue is whether the appellant, having adopted an incorrect procedure in effecting the respondent’s dismissal, was prevented from adopting the correct procedure to effect the consequent dismissal.  The second issue is whether the conciliation proceedings pending before the labour office constituted lis pendens, precluding the appellant from instituting any other disciplinary proceedings and entitling the respondent to object to and absent herself from the disciplinary hearing conducted by the appellant.

CORRECTION OF IRREGULAR PROCEEDINGS AND DISMISSAL

The answer to the first question is not entirely straightforward or uncontentious. In the ordinary course of events, there can be no doubt that an employer who has improperly instituted disciplinary proceedings or improperly dismissed an employee is entitled to reverse the irregular proceedings or dismissal and thereafter proceed to discipline the employee on a proper footing. Indeed, the law obligates the employer to rectify the procedural anomaly or irregularity in question. See Dalny Mine v Banda 1999 (1) ZLR 220 at 221.

In such circumstances, where fresh disciplinary proceedings are instituted, the employee concerned cannot simply disregard them and unilaterally absent himself. He must attend those proceedings and, if he fails to do so, the employer may be entitled to proceed in his absence and, if he is found guilty of grave misconduct, to dismiss him from his employment. The employee will then be deemed to have waived his right to challenge the proceedings or the resultant dismissal. See Moyo v Rural Electrification Agency SC 4/2014.

Having regard to the authorities cited above, the basic principle to be applied where an employee is unprocedurally disciplined or dismissed is that the employer is at large to rescind the irregular proceedings or dismissal and thereafter institute fresh disciplinary proceedings on a proper basis. Nevertheless, it seems to me that it may be necessary and proper to depart from this general principle in very limited and exceptional circumstances. The justification for so doing springs from the need “to advance social justice and democracy in the workplace” in order, inter alia, to secure “the just, effective and expeditious resolution of disputes and unfair labour practices”, as enjoined by s 2A of the Labour Act. The particular circumstances that would warrant such departure is the situation where the employer proceeds in a manner that evinces bad faith or where he actively and explicitly acquiesces to his participation in alternative proceedings for the resolution of any dispute with the employee.

In the instant case, I take the view that the appellant acted disingenuously and clearly mala fide in the following respects. Firstly, the appellant only reversed the irregular dismissal of the respondent after the matter was referred to a labour officer and on the very day that it received the labour officer’s notification to attend the conciliation hearing two weeks later. Secondly, and again quite insidiously, the appellant almost immediately thereafter instituted fresh disciplinary proceedings and hurriedly concluded them, fully aware of the fact that the conciliation hearing before the labour officer was scheduled to take place only three days later.

As regards acquiescence, the record clearly shows that at the conciliation hearing the appellant expressly agreed to the matter being referred to arbitration as well as the issues to be determined by the arbitrator. These issues included not only the legality of the first dismissal, which the appellant had already reversed, but also the propriety of the subsequent disciplinary proceedings instituted by the appellant.  This appears clearly from the documents filed of record, to wit, the respondent’s statement of claim dated 10 February 2012, the appellant’s statement in opposition dated 11 February 2012, and the arbitral award rendered by the arbitrator on 12 March 2012. What the appellant should have done at the conciliation hearing was to have challenged the reference to arbitration from the outset. Instead, it voluntarily and expressly agreed to have the matter referred to arbitration and, furthermore, agreed to the issues to be determined thereat.

On the foregoing facts, I am of the considered opinion that the appellant should not be allowed to benefit, at the respondent’s expense and to her unquestionable prejudice, from the general principle governing the reversal of irregular proceedings and dismissals. To put it crisply, the appellant cannot be permitted to both approbate and reprobate the outcome of the conciliation proceedings and the consequent reference to arbitration.

PENDING CONCILIATION AND ARBITRATION PROCEEDINGS

In addressing the second question Mr Mpofu submits that once the respondent was reinstated there were no proceedings pending before the labour officer. The reinstatement gave the respondent the relief that she sought and she had no further cause for complaint. Labour relations mechanisms are designed to redress wrongs and, once the appellant had corrected the procedural impropriety, the labour relations process became academic. In any event, so it is argued, since there is ordinarily no hearing conducted before a labour officer, the conciliation process is merely one of statutory mediation and cannot be viewed as proceedings within the contemplation of the Labour Act.

Mr Marume submits that there were proceedings pending before the labour officer at the time when the disciplinary hearing was convened. The appellant was aware of those proceedings and should have approached the labour officer to have the proceedings withdrawn or terminated by a certificate of settlement. The labour officer was a competent adjudicator of the dispute between the parties. Therefore, the proceedings before him constituted lis alibi pendens.

Before addressing the merits of the above submissions, it is necessary to set out the exact factual conspectus in casu. The following salient facts are not in dispute. The respondent first approached the labour officer by lodging her complaint on 16 September 2011. The parties were then invited to appear before the labour officer, by notice dated 30 September 2011, to attend a hearing scheduled for 17 October 2011. On the same date, i.e. on 30 September 2011, the appellant wrote to the respondent reversing the decision to terminate her employment and instructing her to report for duty on 3 October 2011. By another letter dated 6 October 2011, the respondent was suspended from work without salary and benefits pending a hearing to determine allegations of misconduct to be held on 14 October 2011.

Thereafter, both parties appeared before the labour officer on 17 October 2011. On the same day, the matter was referred to the arbitrator with the agreement of both parties to determine, inter alia, the lawfulness of the first dismissal and the legality of the subsequent disciplinary proceedings pending the conciliation before the labour officer. The arbitrator proceeded by way of written submissions, which were filed by the respondent and the appellant respectively on 10 and 11 February 2012, and rendered his award in favour of the respondent on 12 March 2012. In the meantime, on 28 October 2011, the appellant wrote to the respondent advising her that she had been found guilty of misconduct at a disciplinary hearing held on 14 October 2011 and that she had been dismissed from employment with effect from 6 October 2011.

What emerges clearly from the foregoing is that at the time that the appellant instituted disciplinary proceedings against the respondent, i.e. on 6 October 2011, the conciliation proceedings before the labour officer were already pending and scheduled to be heard on 17 October 2011. Inasmuch as the latter proceedings were instituted under and governed by statute, they cannot be treated as being purely mediatory and therefore devoid of any legal consequence.

In this respect, it is necessary to have regard to the provisions of s 93(1) of the Labour Act. It provides that:

“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.” (My emphasis)

For the sake of completeness, I should also mention ss 93(3) and 93(5) of the Labour Act. In terms of s 93(3), if the dispute is not settled by the labour officer concerned within 30 days after he began to attempt to settle it under s 93(1), he shall issue a certificate of no settlement to the parties. In that event, s 93(5) comes into play and s 93(5)(b), in particular, provides that the labour officer may, after consulting a senior labour officer and with the agreement of the parties, refer the dispute to compulsory arbitration. Apart from the obvious anomaly of referring a dispute “to compulsory arbitration with the agreement of the parties”, the prerequisites for a reference to arbitration under s 93(5) are the issuance of a certificate of no settlement and consultation with a senior labour officer.

My reading of s 93, taken as a whole, is as follows. Section 93(1) enjoins the labour officer seized with a dispute to attempt to settle it, either through conciliation or, if agreed by the parties, by reference to arbitration. In other words, the settlement of the dispute is to be effected either by conciliation or by reference to arbitration. If the labour officer fails to settle the dispute under s 93(1) within 30 days, he may then refer the dispute to arbitration under s 93(5), subject to first having issued a certificate of no settlement and after having consulted a senior labour officer. However, neither of these requirements is applicable where the labour officer has successfully settled the dispute under s 93(1).

In the present matter, it is common cause that the labour officer seized with the dispute did not issue a certificate of no settlement and did not consult any senior labour officer before referring the matter to arbitration. The reason for this is that he was still in the process of attempting to settle the dispute before him, within the stipulated period of 30 days after 30 September 2011, when he had begun to attempt to settle the dispute. He eventually did settle the dispute on 17 October 2011, not through conciliation, but by referring it to arbitration, with the full and unconditional agreement of both parties to the dispute. Having thus settled the dispute under s 93(1), he was then not required to comply with the requirements prescribed by ss 93(3) and 93(5). Those requirements clearly did not apply to the circumstances in casu.

As I have already stated, conciliation proceedings under s 93(1) are prescribed by statute. They are essentially quasi-judicial in nature. In my view, the parties engaged in such proceedings are obligated to respect and abide by them as a statutory process and to subject themselves to the jurisdiction of the labour officer concerned until the proceedings are formally terminated, viz. until the disputation between them is either settled through conciliation or referred to arbitration. It follows that it is only the labour officer seized with the matter who has the requisite power and authority to validly conclude and finalise the proceedings in accordance with his statutory mandate. I would venture further to add that, depending upon the circumstances, this would be the case even if the controversy before him is overtaken by events or otherwise resolved by the parties. Consequently, neither party, whether it be the employer or the employee, is at large to unilaterally disregard or resile from pending conciliation proceedings.

As regards the jurisdiction and powers of arbitral tribunals, it must be emphasised that the arbitration process generally is a voluntary and consensual process, both at common law and under the Arbitration Act [Chapter 7:15]. This is made clear by s 4(1) of the Act which stipulates that “any dispute which the parties have agreed to submit to arbitration may be determined by arbitration”. Moreover, by virtue of s 4(3) of the Act, “the fact that an enactment confers jurisdiction on a court or other tribunal to determine any matter shall not, on that ground alone, be construed as preventing the matter from being determined by arbitration”. According to Brand: Labour Dispute Resolution (2nd ed. 2008) at p. 163:

“In private arbitration the arbitration agreement plays a pivotal role. It embodies a description of the dispute to be referred to arbitration, it names the arbitrator, it specifies the terms of reference and arbitrator’s powers, it sets out the process before the actual hearing and finally, it describes the process to be followed during the hearing.”

In similar vein, as was stated in Total Support Management (Pty) Ltd & Anor v Diversified Health Systems (SA) (Pty) Ltd & Anor 2002 (4) SA 661 (SCA) at 673 H-I:

“The hallmark of arbitration is that it is an adjudication, flowing from the consent of the parties to the arbitration agreement, who define the powers of adjudication, and are equally free to modify or withdraw that power at any time by way of further agreement.”

It is thus axiomatic that the jurisdiction and powers of an arbitrator are determined by agreement between the disputant parties. The terms of reference define the dispute to be resolved and the manner in which it is to be resolved. The arbitrator’s mandate flows from and is limited by the terms of reference. To put it differently, the arbitrator derives his jurisdiction and powers from the arbitration agreement between the parties.

The position is no different under s 93(1) of the Labour Act. The jurisdiction and powers of an arbitrator are established and assumed by dint of the agreement of all the parties involved and their voluntary submission to the arbitral process and its jurisdiction. The arbitrator is not endowed with jurisdiction by the labour officer or conciliator. It is the disputant parties themselves who vest the arbitrator with jurisdiction, notwithstanding any preceding or parallel lis or contestatio between them. In other words, it is the voluntary and consensual nature of arbitration that determines the scope of the arbitrator’s jurisdiction and powers where any matter is referred to arbitration in terms of s 93(1) of the Labour Act.

In the premises, even if it is accepted that the conciliation proceedings in casu did not constitute a lis stricto sensu, this would not avail or assist the appellant. This is so for two very compelling reasons. Firstly, the outcome of the conciliation proceedings was to refer the matter to the arbitrator to determine several issues. Very significantly, this was with the express agreement of both parties. Secondly and equally crucially, one of the principal questions referred to the arbitrator was whether or not it was lawful for the appellant to proceed with disciplinary proceedings pending the conciliation before the labour officer. Having explicitly agreed to the reference of this question for determination by the arbitrator, it was plainly precipitate and unprocedural for the appellant to have continued to finalise those very disciplinary proceedings, the legality of which was unquestionably in issue, before the arbitrator had concluded his findings and rendered his award. I take the view that this approach was not only ill-advised but patently unlawful.

DISPOSITION

To conclude, the appellant would ordinarily have been entitled to reverse its earlier decision to dismiss the respondent and institute fresh disciplinary proceedings against her. However, in the particular circumstances of this case, it was precluded from so doing by virtue of the proceedings pending before the labour officer and consequently before the arbitrator.

In the result, the appeal, being devoid of merit, cannot succeed. It is accordingly ordered that the appeal be and is hereby dismissed with costs.

GWAUNZA DCJ:	I agree.

GOWORA JA:		I have had occasion to peruse the judgment of my brother judge PATEL JA and I must with respect disagree with his disposition of the appeal before us.

The facts to the dispute have been correctly and succinctly set out by my learned brother and it serves no purpose for me to repeat them.

I begin the enquiry into this dispute with the proceedings before the labour officer.

WHETHER THERE WAS A DISPUTE FOR ADJUDICATION BEFORE THE LABOUR OFFICER WHICH COULD BE PROPERLY REFERRED TO ARBITRATION UNDER THE ACT

The parties appeared before the labour officer on 17 October 2011. The attendance was for the purpose of the determination by the labour officer of the alleged unlawful dismissal of the respondent from employment by the appellant. The relief sought by the respondent is captured in a letter addressed to the appellant by the former’s legal practitioners. The pertinent portion of the letter for present purposes reads:

“On 13 September 2011 our client received the shock of her life when she received an email from the Managing Director wherein she was told that with effect from that date her contract of employment had been terminated. No disciplinary proceedings were carried out. Please refer to “Annexure E”.

In essence the employer’s conduct constitutes summary dismissal of our client and this inflicts grave violence upon s 12 B (1) and (2) of the highly esteemed Labour Act.

The employer was legally obliged to carry out a disciplinary hearing in terms of the code of conduct to prove its allegations against our client instead of rushing to terminate her contract of employment. In the circumstances our client’s dismissal was very unfair and unlawful.

The termination of our client’s contract of employment is in flagrant and wanton breach of the fundamental tenet of natural justice, audi alteram partem rule. Thus the termination is procedurally unfair.

In the premises our client instructs us to refer this matter to your good offices in terms of s 93 of the Labour Act for urgent redress.”(my underlining)

In response to this letter, the appellant reinstated the respondent. She was invited to resume her employment and report for duty on 3 October 2011. It is common cause that she did not report for duty. On 6 October 2011 she was suspended. She was also summoned to attend a disciplinary hearing scheduled for 14 October 2011. She did not attend. The hearing proceeded in her absence and she was found guilty of misconduct, which culminated in her dismissal.

It is correct that the letter in terms of which her dismissal was reversed by the employer is dated 30 September 2011. That is the same date that the employer was notified to attend a hearing on the complaint of unlawful dismissal lodged with the labour officer by the respondent. The question that begs a response is; what is the effect of the letter from the appellant removing the cause of complaint. Was there in fact a dispute for the labour officer to determine.

In terms of the Act, a labour officer is empowered to conciliate over a dispute or unfair labour practice. Labour officers draw their power from s 93 of the Act which reads 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.

According to J Grogan, Labour Litigation and Dispute Resolution, 2 ed, p 117, conciliation is a process in which parties endeavour to reach agreement with a view of settling the dispute. The process may include mediation, the conduct of a fact finding exercise and the making of recommendations to parties. The question that arises is whether there was a dispute between the parties.

It is my view that there was no dispute because the employer had set aside the dismissal, invited the employee back to work and embarked on the process that had been demanded by the employee, i.e that disciplinary proceedings be instituted in terms of the Code of Conduct. This was done. The complaint having been rectified there was no dispute between the parties.

The view I take is that the labour officer had nothing to conciliate or settle. As a consequence, the labour officer could not proceed in terms of the Act. He was disabled from issuing a certificate of no settlement. A perusal of s 93(3) of the Act shows that this is the law.

A reference to arbitration follows upon the issuance of a certificate of no settlement. Section 93 (3) and (5) are pertinent in this regard and read as follows:

(3) If the dispute or unfair labour practice is not settled within thirty days after the labour officer began to attempt to settle it under subsection (1), the labour officer shall issue a certificate of no settlement to the parties to the dispute or unfair labour practice.

(4)

(5) After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting any labour officer who is senior to him and to whom he is responsible in the area in which he attempted to settle the dispute or unfair labour practice —

(a) shall refer the dispute to compulsory arbitration if the dispute is a dispute of interest and the parties are engaged in an essential service; or

(b) may, with the agreement of the parties, refer the dispute or unfair labour practice to compulsory arbitration; or

(c) may refer the dispute or unfair labour practice to compulsory arbitration if the dispute or unfair labour practice is a dispute of right; and the provisions of section ninety-eight shall apply to such reference to compulsory arbitration.

From the manner in which the labour officer dealt with the matter, it becomes obvious that there was no compliance with subs (3) above. There was no certificate of no settlement issued. A perusal of s 93(5) will also show that it was not complied with. After issuing a certificate of no settlement a labour officer is required to consult his senior before referring a dispute to compulsory arbitration. Only after such consultation is the dispute referred to arbitration. In my view the agreement by the parties can only occur after there has been a consultation between the officers as required by s 93(5). In casu, the referral falls foul of the law in several respects.

If regard is had to the provisions of the Act, in the absence of a certificate of no settlement was the arbitrator properly imbued with jurisdiction to determine the dispute between the parties? Section 98 which imbues an arbitrator with jurisdiction to conduct compulsory arbitration pursuant to a referral under s 93 reads in part:

98 Effect of reference to compulsory arbitration under Parts XI and XII

(1) In this section, “reference to compulsory arbitration”, in relation to a dispute, means a reference made in terms of paragraph (d) of subsection (1) of section eighty-nine or section ninety-three.

In my view, s 98 (1) makes it abundantly clear that reference to arbitration must be in terms of either s 89 or section 93. Since s 93(3) presupposes the issuance of a certificate of no settlement as a prerequisite to the reference to arbitration, the absence of such certificate means that the basis for the jurisdiction for such reference does not exist. In my view the arbitrator could not lawfully assume jurisdiction in its absence. The arbitration process in respect of the unlawful dismissal of 13 September 2011 is as a consequence irregular.

Turning to the matter of the disciplinary proceedings, I must assume that the matter of the disciplinary proceedings was referred to the labour officer in terms of s 101 of the Act. None of the parties has specifically stated so but that is the only section that makes reference to the referral of disciplinary proceedings emanating from a code of conduct to a labour officer. I can find no other section in the Act. The pertinent sections of s 101 read as follows:

(3) An employment code shall provide for—

(a) the disciplinary rules to be observed in the undertaking, industry or workplace concerned, including the

(e) the notification to any person who is alleged to have breached the employment code that proceedings are to be commenced against him in respect of the alleged breach;

(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.

Subsection (6) of s 101 was considered by this Court in Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170. At 173B-E, this Court said:

“Subsection (6) of s 101 provides for a referral of the matter to a labour relations officer if the matter 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 officer is a relief given 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.

The section should be read as being only permissive and not restrictive. In my view, the intention of the legislature is to grant relief to a party who is affected by the delay. The section provides that:

‘the employee or employer concerned may refer such matter to a labour relations officer who, who may then determine the matter ….’

Clearly the referral can only be made before a determination is made.”

In casu, proceedings had already been concluded in the absence of the respondent. There was nothing for the labour officer to determine. The referral to the labour officer of the disciplinary proceedings was done outside the law and therefore irregular.

It therefore stands to reason that the reference to compulsory arbitration was wrong at law. The labour officer did not have the jurisdiction to refer any matter to arbitration. The issue that therefore arises is whether the disciplinary proceedings themselves could be considered as a dispute for conciliation under s 93(1) of the Act?

According to Black’s Law Dictionary a dispute is defined as any conflict, controversy or claim arising out of or in connection with, or in relation to the interpretation, performance, non-performance, validity or breach of an agreement or otherwise arising out of or in connection with or in any way related to an agreement or transactions contemplated thereunder, including any claim based in contract, tort statute or the constitution. From the above description on the facts of this case, a dispute would be predicated on the employer employee relationship.

On the other hand, the same dictionary defines proceedings as follows:

The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and entry of judgment.

Any procedural means for seeking redress from a tribunal or agency.

An act or step that is part of a larger action.

The business conducted by a court or other official body; a hearing.

In Words and Phrases Legally Defined, by B Sanders, the term proceedings is frequently used to note a step in an action. It is a general word used to cover every step in an action and is equivalent to the word “action” in some instances. It may also be defined as anything that preceded final judgment.

From the above, it is clear that the terms “dispute” and “proceedings” denote different processes. A dispute can lead to the commencement of proceedings. On the other hand, proceedings is a process by which a dispute is resolved. The two do not mean the same. As a consequence the referral of the proceedings to a labour officer under s 93(1) is not in accordance with the provisions of the Act. If the matter was referred as a dispute, it was wrong. There was no dispute before him warranting such reference.

Over and above the afore-going, I am not convinced that this is the kind of dispute over which a labour officer would be properly seized under the Act given that his primary role is that of conciliation. Assuming that parties agreed to settle, would such settlement result in the proceedings being set aside? Would they have to be referred to an arbitrator for the setting aside, once a certificate of settlement is issued? I believe not. The only reference to an arbitrator is upon the issuance of a certificate of no settlement. The dicta in Watyoka (supra) is therefore pertinent. The reference to a labour officer is to give relief to a party who complains that the proceeding are being delayed or have stalled. Once the proceedings have been completed there is no provision in the Act for the intervention of a labour officer. He has no jurisdiction.

Over and above this did the manner in which the arbitrator dealt with the matter accord with the law?

The terms of reference for arbitration were as follows:

Whether or not the employee was unfairly dismissed’

Whether or not it was lawful for the employer to proceed with disciplinary proceedings pending a conciliation before the Labour officer.

Whether or not s 124 of the Labour Act debars the employer from instituting proceedings against the applicant after reinstatement

To examine the appropriate remedy in the circumstances.

On the second issue, the arbitrator found that no evidence had been produced before him to show that the labour officer had been advised before the disciplinary proceedings were embarked on. He concluded that the provision in the Act was mandatory. I am not sure which provision he is referring to in this conclusion. The fact of the matter is that the dismissal having been set aside there was no dispute. It is trite that the law entitles an employer who has adopted an incorrect procedure to reverse his decision and proceed in accordance with the law.

The arbitrator also concluded that the correct procedure was for the employer to have agreed to a certificate of no settlement before the labour officer first before instituting fresh disciplinary proceedings. Clearly, the arbitrator was at fault in this conclusion. There is no such provision in the Act. Parties do not agree to a certificate of no settlement. It is issued as a consequence of a failure by the labour officer to have settled the matter before him or her. It is by operation of law and is not subject to consent by the parties.  There is however provision in the law for the parties to approach the Labour Court in terms of s 93(7) where a labour officer refuses to issue a certificate of no settlement. That is not the case herein and it was never the case of the respondent that the labour officer had refused to issue the certificate.

In addition, the conclusion that the appellant should have agreed with the respondent that the latter withdraws the proceedings before the labour officer first before the appellant institutes (fresh) disciplinary proceedings has no basis in law. Quite apart from this, the law permits an employer who has adopted an unlawful procedure or incorrect procedure to correct that procedure and proceed in terms of the law. The appellant instituted disciplinary proceedings as required by law. Neither the arbitrator nor the court a quo made reference to any authority upon which this conclusion is based.

In addition, the conclusion that the appellant was obliged to agree to a certificate of settlement before the labour officer before conducting disciplinary proceedings flies in the face of the finding by the court a quo that the appellant had the right to adopt the correct procedure once it found out that the dismissal of 13 September 2011 was unlawful.

In so far as the third issue is concerned, whether or not s 124 is a bar to the employer proceeding under the law to correct an unlawful dismissal, my view is that an employer who reverses an unlawful dismissal and conducts legal disciplinary measures as was done in this case, cannot be said to have acted contrary to s 124. It is my conclusion that s 124 is not applicable to the facts of this particular case.

I turn to the appeal before the Labour Court

THE APPEAL BEFORE THE LABOUR COURT

The grounds of appeal before the Labour Court were the following:

The learned arbitrator erred and misdirected himself at law by determining the lawfulness or otherwise of the dismissal when that issue was not before him.

The learned arbitrator erred at law by failing to recognise that the appellant, after realising that it had adopted a wrong procedure in effecting dismissal, nothing could prevent it from adopting the correct procedure to effect dismissal

Respondent was employed by the appellant on 23 November 2010.

After the expiry of the respondent’s three month probation period she became a permanent employee of the appellant. A copy of the letter of confirmation is attached hereto marked annexure ‘A’.

The learned arbitrator failed to understand the concept of functus officio as the earlier decision to terminate respondent’s contract of employment was made by the managing director and the subsequent decision was made by the Disciplinary Authority constituted in terms of the registered code of conduct.

The court a quo disposed of the appeal as follows:

“This Court agrees with the findings by the Arbitrator that the correct procedure the respondent should have taken first was to agree to a certificate of settlement before the Labour Officer before conducting the disciplinary hearing. The other alternative would have been that the appellant should have agreed with the respondent that respondent withdraws the proceedings before the labour officer before the appellant instituted fresh proceedings.

In view of the foregoing therefore this Court finds that the subsequent dismissal remains unlawful.”

The court then proceeded to dismiss the appeal with costs.

Before I delve into the issues raised in the grounds related to above it is pertinent to examine in detail the ratio by the court a quo when disposing the appeal.

The first issue relates to the certificate of no settlement. The very absence of the certificate of no settlement disabled the arbitrator from entertaining the matter. Both the court a quo and the arbitrator acted under a misapprehension of the law. The provisions of s 93(3) are peremptory. If the labour officer is unable to settle the dispute he shall issue a certificate of no settlement. He has no discretion in the matter. The only discretion afforded to him is to extend the period in which to conciliate beyond thirty days with the consent of the parties. Therefore, when the arbitrator concluded that the respondent should have agreed to the issuance of a certificate of no settlement that conclusion was a gross misdirection of the law and the facts. There was no certificate simply because there was no dispute.

In my view the arbitrator did not have the jurisdiction to conduct arbitration proceedings. I am fortified in this view by the dicta of GWAUNZA DCJ in Medicines Control Authority of Zimbabwe v Nathan Toronga & Ors SC 10/17 to the following effect:

“While the arbitrator completely disregarded the appellant’s submissions on the subject and determined the matter on other grounds, the Labour Court, before which the same issue was raised, gave its reasons for not considering it, thus:

“The first ground was not pursued in oral argument. In any event, it raised a procedural point.  Such points ought to be raised by way of review rather than an appeal. Whether or not the matter was referred to the Arbitrator “prematurely” is clearly a matter of procedure. Thus the point could not be dealt with in this appeal”

I find there is merit in the appellant’s submission that the court a quo erred in finding that the issue of jurisdiction, that the Labour Officer did not consider, was a procedural issue that should have been raised by review.

Jurisdiction in simple terms can be defined as the power or competence of a particular court or tribunal to hear and determine an issue brought before it. A plea of jurisdiction therefore attacks the competence of a court or tribunal to hear and determine the matter. It follows that a court or tribunal that has no jurisdiction, for whatever reason, to entertain a matter is not in a position to go beyond the question of its jurisdiction to determine any other issue to do with the dispute in question.

In casu it may be safely assumed that the Labour Officer heard and dismissed a challenge to his jurisdiction (or lack thereof) to hear the matter. He however, in my view correctly, included this particular issue among those referred for arbitration. But, as already indicated and for reasons best known to himself, the arbitrator disregarded the issue and proceeded to hear the matter on the merits. That being the case, the Labour Court ought to have found that the arbitrator misdirected himself by not addressing, before he did anything else, the question of whether or not the Labour Officer had jurisdiction to hear the matter. A positive finding on the issue would have placed the dispute properly before the arbitrator for his determination thereof on the merits. In other words, the arbitrator’s competence to hear the matter was predicated on the Labour Officer having validly and properly heard and considered the matter. By contrast, a negative finding would have rendered the whole conciliation process a nullity. The effect would have been that there was no issue for further determination before and by the arbitrator.  This, in turn, would have meant that the appeal against the arbitrator’s award was improperly brought to the Labour Court. There is truth to the saying that you cannot put something on nothing and expect it to hold. It will collapse.

In view of the fact that ss (5) of s 101 of the Act all but outlines the parameters for the Labour Officer’s competence to consider or ‘intervene’ in a dispute such as the one at hand, I find that the Labour Court clearly erred when it found that the issue of jurisdiction was merely procedural. Not only is the matter provided for in a statute, its domino effect (in the case of a negative finding) as outlined above would be to strike at the very root of the proceedings that started with the Labour Officer’s determination of the matter. Far from it being a procedural issue, therefore, the question of the Labour Officer’s jurisdiction, or lack thereof, to hear the matter, was one of law.”

I respectfully adopt the dicta from her Ladyship in this enquiry. If there was no dispute pending before him the labour officer would as a consequence have no power to refer a matter to arbitration. He assumes jurisdiction on the basis of a dispute which is properly pending before him and in respect of which he has issued a certificate of no settlement. In the absence of both he cannot act in terms of the Act. The reference is therefore irregular. In the circumstances the proceedings before the arbitrator having been conducted outside the provisions of s 93 cannot stand. They must be set aside.

I am fortified in view this because the learned judge in the court a quo found as follows:

“The appellant has submitted that the second dismissal of 28 October 2011 was ruled because termination of a contract is a unilateral act. Appellant has submitted that there is no need for a higher authority to rectify a wrong. The labour officer was informed of the development. The labour officer had just been asked to conciliate the matter.

In the case of Madawo vs Interfresh Ltd 2000 (1) 660 CHINHENGO J (as he then was) held that,

‘If an employer recognises that it has adopted an incorrect procedure in effecting a dismissal, there is nothing to prevent him from adopting the correct procedure to effect the dismissal.’

From this point of view it would appear that the appellant had the lawful right to correct the wrong procedure it had adopted in dismissing the respondent on 13 September 2011.”

Once the court a quo found, as it did, that the law permitted the appellant to adopt the correct procedure in dismissing the respondent that should have been the end of the matter. I say this because the genesis of the dispute is the unlawful dismissal of 13 September 2001. By stating that the appellant could at law adopt the correct procedure in effecting dismissal the court a quo was in effect disagreeing with the arbitrator on this issue. In my view this would dispose of the first three issues on which the matter was referred for arbitration.

The court a quo however thereafter misdirected itself by then reviewing the disciplinary proceedings after its reliance on Madawo’s case (supra). Instead of disposing of the matter on this very pertinent principle it then made conclusions that were at variance with its earlier findings. The court a quo said:

“The appellant was aware of the conciliation proceedings at the Ministry of Labour. Appellant was not supposed to carry out any disciplinary proceedings. By conducting a disciplinary hearing before the conclusion of the conciliation proceedings the appellant acted against the common law principle of lis alibi pendens. For a case of this nature to succeed the following requirements should be fulfilled’

That the action is already between the parties;

That the plaintiff has brought another action against the same defendant;

That the action is based on the same cause of action and in respect of the same subject matter.

(see Mhanga v Mtindi 1986 (2) ZLR 171).

This Court agrees with the findings of the arbitrator that the correct procedure the respondent should have taken was to first agree to a certificate of settlement before the labour officer before conducting a disciplinary hearing.”

As I have adverted to earlier in this judgment, the certificate of no settlement issued under s 93(3) is by operation of law following a failure on the part of the labour officer to settle a dispute. It does not depend on, nor is it subject to, consent by any of the parties to the dispute.

In my view, once the Labour Court found that the appellant had the legal right to correct a wrongly adopted procedure in its dismissal of the respondent that ought to have been the end of the matter. Instead of applying this very sound legal principle to the appeal before it, the Labour Court then went onto review the disciplinary proceedings conducted in the respondent’s absence. The conclusion by the court goes against its finding as to the employer’s right to correct its procedures.

In addition, by holding that the appellant acted against the common law principle of lis alibi pendens by conducting the disciplinary process during the pendency of the conciliation the Labour Court was reviewing the actions of the appellant in that regard. There was in fact no review of that process before the Labour Court. In any event, lis alibi pendens is a defence or a shield. The court also failed to appreciate that lis pendens as a defence could only have been raised by the respondent during the disciplinary proceedings. Before the labour officer and the arbitrator the respondent was a claimant and therefore could not raise a defence. She was supposed to establish a claim, not prove a defence. I agree with the submission by Mr Mpofu that the respondent used lis alibi pendens as a sword instead of a shield. Its use before the labour officer, the arbitrator and the Labour Court was clearly misplaced and went against established legal principles.

In their book the Civil Practice of the High Courts of South Africa, 5ed, the learned authors Herbstein & Van Winsen describe lis alibi pendens as follows:

“Lis pendens is a special plea open to a defendant who contends that a suit between the same parties concerning a like thing and founded upon the same cause of action is pending in some other court.

In Nestle (SA) (Pty) Ltd v Mars Incorporated [2001] 4 All SA 315(SCA) at 319 it was stated as follows:

‘The defence of lis alibi pendens shares features in common with the defence of res judicata because they have a common underlying principle which is that there should be finality in litigation. Once a suit has been commenced before a tribunal that is competent to adjudicate upon it the suit must generally be brought to its conclusion before that tribunal and should not be replicated (lis alibi pendens). By the same token the suit will not be permitted to be revived once it has been brought to its proper conclusion (res judicata). The same suit between the same parties, should be brought only and finally. There is room for the application of that principle where the same dispute, between the same parties, is sought to be placed before the same tribunal (or two tribunals with equal competence to end the dispute authoritatively). In the absence of any of those elements there is no potential for a duplication of actions’.”

As to the defence itself, it would be the defence which the respondent should have raised before the disciplinary committee. It had no relevance before the labour officer as the disciplinary proceedings were concluded prior to the hearing for conciliation before the labour officer.

If it is accepted that there was a lis pending between the parties at some stage, by the time the parties appeared before the labour officer on 17 October 2011 there was no such lis. It had been disposed of on 14 October 2011 by the disciplinary proceedings in terms of which the respondent was found guilty of misconduct.

In my view, the process by which the issue found its way to the arbitrator becomes important. In submissions before the Labour Court the appellant contended that the matter was not properly before the arbitrator. It is in fact the first ground of appeal. This ground sought to impugn the decision of the arbitrator in dealing with the alleged unlawfulness of the disciplinary proceedings.

When regard is had to the judgment it leaps to the mind that the court a quo completely overlooked the first ground. It was neither captured in the judgment nor was the issue determined by the learned judge in the court a quo. When it made reference to the grounds for consideration before the court this ground was not mentioned at all as one of the issues to be determined by the court. It is obvious therefore that the court a quo did not determine this aspect of the appeal.

It is trite that when a court or tribunal fails or omits to deal with an issue before it, such failure or omission constitutes a gross misdirection. A misdirection such as the one mentioned herein can vitiate proceedings. In Gwaradzimba v CJ Petron SC12/16, GARWE JA expressed the view that:

“The position is well settled that a court must not make a determination on only one of the issues raised by the parties and say nothing about other equally important issues raised, unless the issue so determined can put the whole matter to rest. Longman Zimbabwe (Pvt) Ltd v Midzi & Ors 2008 (1) ZLR 198, 203 D(S).

The position is also settled that where there is a dispute on some question of law or fact, there must be a judicial decision or determination on the issue in dispute.  Indeed the failure to resolve the dispute or give reasons for a determination is a misdirection, one that vitiates the order given at the end of the trial-Kazingizi v Revesai Dzinoruma HH 106/2006, Muchapondwa v Madake & Ors 2006(1) ZLR 196 D-G,201A(H); GMB v Mucheri 2008(1) ZLR 216, 221C-D(S)”

The failure by the court a quo to consider the issue raised in the first ground in this case is a misdirection. In my view, the Labour Court could not have failed to determine this issue as the decision by the arbitrator was premised on the disciplinary proceedings which he declared as being null and void and set them aside as a consequence. Whether or not that issue was properly an issue before the arbitrator was a pertinent consideration for the proper adjudication of the entire dispute. It was not determined. The appeal can be determined on this issue alone. In view of the manner in which the disciplinary proceedings were dealt with by the arbitrator and the Labour Court I will consider those next.

THE DISCIPLINARY PROCEEDINGS.

The respondent was summoned to appear before a disciplinary committee on 14 October 2011. She opted not to attend and was found guilty on charges of gross incompetence and negligence in the discharge of her duties. Her failure to attend the disciplinary proceedings does not render her dismissal irregular. In Munyuki v City of Gweru 1998(1) ZLR 182(S), GUBBAY CJ (as he then was) stated that:

“Although it is a fundamental legal principle that an employee charged with misconduct by the employer has the right to be heard, I have no difficulty in accepting that such right may be abandoned or waived. Non-attendance is not a disciplinary offence unless specified in the pertaining code of conduct. If the employee does not attend however, he abandons his right to be present and the hearing may proceed in absentia. See Forestry Commission v Moyo 1997(1) ZLR 254(S) at 262.

This common sense approach was applied in Reckitt & Coleman (SA) (Pty) Ltd v Chemical Workers Industrial Union & Ors (1991)ILJ 806(LAC) where the facts were these. Employees engaged in disruptive behaviour by blowing hooters on the factory floor were summoned to a disciplinary hearing. They refused to attend. HARMS J (as he then was) presiding in the Labour Court of Appeal (Transvaal Division) said at 813A-D:

“It is a principle of fairly general application that a party should utilise his domestic remedies and procedures before approaching a court. There is no reason in principle why such a rule should not be applicable to proceedings before the industrial court. The court has a duty to apply equitable principles in assessing what is fair between employer and employee. If the employer and the employee have entered into an agreement regulating disciplinary enquiries and providing for internal appeals, it would appear that under normal circumstances an employee who is disciplined has to attend and partake of those proceedings. If he refuses to do so, he could hardly allege that the outcome of the proceedings were unfair or amounted to an unfair labour practice. There may obviously be occasions when employees with reason could refuse to attend such proceedings. However, in this case no reasons were proffered why the first eight employees (the parties to the first application) refused to attend the disciplinary enquiry and refused to use their right of appeal.””

In view of the fact that the respondent had demanded that the appellant proceed in terms of the Code of Conduct in effecting the dismissal her refusal to attend the hearing cannot be justified. In addition there is no explanation from her as to why she refused.

Before the arbitrator it was her case that there were proceedings pending before labour officer. It was further contended that in accordance with the provisions of s 124(1) of the Act, the employer was disabled from instituting disciplinary proceedings before the termination of the conciliation process.

First and foremost, based on the authority of Madawo v Interfresh Ltd (supra), an employer who rectifies a wrong procedure and adopts the correct procedure in the dismissal effectively removes the cause of the dispute. As at the time the labour officer sat to conciliate a dispute, no such dispute existed as a dismissal under s 12B had been effected by the employer following the proceedings held on 14 October 2011.

As correctly stated by my learned brother, where fresh disciplinary proceedings are instituted, an employee cannot simply disregard them and unilaterally absent himself or herself. If he does so, the employer is entitled to proceed in his absence and dismiss him if found guilty of misconduct warranting dismissal.

This statement accords with the principle that an employer is entitled to proceed with a disciplinary hearing in the absence of the employee if that employee refuses to attend or participate in the hearing without good cause shown. In Forestry Commission v Moyo 1997 (1) ZLR 254(S), this Court said:

“The second alternative ground, as I understand it, was that the respondent ought to have been afforded the opportunity to be heard even though he had walked out of the inquiry. I am unable to agree. If the cause of the respondent’s abrupt departure had been because of a procedural defect in the conduct of the proceedings, his conduct would have been understandable. The respondent had been told that he would not be reimbursed his travel and subsistence expenses. Whether that decision was right or wrong was of no relevance. It remained open to the respondent to challenge it by recourse to the law. His exit indicated that he had no intention of participating in the inquiry. He took a calculated risk that it would proceed without him. There was, in my opinion, no obligation upon the investigating panel to postpone the hearing and call upon the respondent to appear at another date. The audi alteram partem rule was not violated.”

The respondent deliberately absented herself from the disciplinary hearing without just cause. In Moyo v Rural Electrification Agency SC 4/14, this Court stated:

“In our view, the appellant by deliberately absenting himself without leave from the hearing waived his right to challenge the conduct of the disciplinary proceedings. He had the option, which he did not exercise, of seeking a postponement since he knew that he would not be available on the date of hearing. In these circumstances we do not feel that the failure by the respondent to strictly comply with the Regulations operated to vitiate the disciplinary proceedings.”

Those proceedings have not been challenged by the respondent and she stands dismissed.

DISPOSITION

The court a quo ought to have asked itself what dispute was placed before the labour officer. Given that the complaint was made on 11 September 2011 with the disciplinary proceedings being conducted on 14 October 2011 there is no possibility of the disciplinary proceedings having been made the subject of complaint before the labour officer. To compound matters even more, having correctly set out the principle that permits an employer to correct the wrong procedure, the court a quo then fell into the same error that had been committed by the arbitrator. It made a decision which effectively negated the employer’s right to correct a wrong without legal justification for doing so. I also find that by the time the parties, without a legal basis for so doing, agreed to refer the matter to compulsory arbitration, the employer had already conducted disciplinary proceedings in terms of which the respondent was dismissed. The employer could therefore not be expected to stop a process which it had already completed.

There was no dispute to refer to arbitration. There was also no certificate of settlement. Accordingly, the reference to arbitration not having been effected in accordance with the law, there was no lawful arbitral process.

In this regard the court a quo misdirected itself in a number of respects. Firstly, it went against the principle it had made reference to in accepting the employer’s right to rectify a wrong procedure in the dismissal of an employee contrary to the provisions of the law. Secondly, it misdirected itself in failing to find as prayed that the matter had not been referred to the arbitrator lawfully and that the latter was by law disabled from determining the issue. Both the arbitrator and the court a quo misdirected themselves in the manner in which they dealt with the dispute.

I am of the view that the appeal has merit and ought to succeed. In the premises I would issue an order in terms of which the appeal is allowed with costs. Consequent thereto the judgment of the court a quo should be set aside and in its place substituted with a judgment allowing the appeal with costs, and consequent thereto, an order setting aside the arbitral award by Arbitrator A. Manase dated 12 March 2012.

Gill Godlonton & Gerrans, appellant’s legal practitioners

Marume & Furidzo, respondent’s legal practitioners