Africa University v Respondent (Sports Director)

### Preamble
JUDGEMENT NO LC/MC/05/16
IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE ON 19th MAY 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE ON 19th MAY 2015    		CASE NO. LC/MC/68/11

AND 18th MARCH, 2016

In the matter between:-

AFRICA UNIVERSITY                                                            -APPELLANT

The matter was placed before me as an appeal against an arbitral award handed down on the 13th of October 2011. The Respondent was employed by the Appellant as the Sports Director. He was suspended from duty on 21st June 2011 on allegations of misconduct. It was Appellant allegations that in December 2010 he had gone to Botswana accompanied by other members of staff. On his return he produced to Africa University tax invoices with forged signatures and false dates stamp to give the impression he had paid UBSSRA P 11 340.00  for accommodation instead of P 5 460.00 which he had actually paid. Further that he had also produced to the employer fake tax invoices with forged signatures and date stamps to give the impression that he had paid to SAUSSA Triosme P 2500.00 for SAUSSA membership

application. Finally it was Appellant allegation that he had produced a solicited fuel receipt number 34042 for 325 litres of diesel worth P 2 047.50 when in actual fact he had paid for a lesser amount.

The Respondent was on the 29th June 2011 served with notification of a disciplinary hearing to be held on 5 July 2011. The hearing commenced on the 5th July 2011 and was postponed to the 12th of July 2011. The hearing continued on the 12th and 13th of July 2011. The hearing was due to be finalised on the 14th of July but had to be postponed once again as Respondent was not available being at the time at the Police for the criminal case. On the 14th of August Respondent lodged a compliance with the Ministry of Labour on the basis that no determination had been made by the Appellant. The Appellant then served Respondent with a determination letter on the disciplinary case on the 11th of August. The parties having failed to conciliate the matter was referred to arbitration.

The terms of reference for the Arbitrator were for the Arbitrator to determine whether or not disciplinary proceedings against the Respondent complied with the stipulated period at law. The Arbitrator in his award found that disciplinary proceedings were flawed when the employer after clearly electing to pursue disciplinary procedures under Statutory Instrument 15 of 2006 then failed to comply with Section 6 (2) of that statue requiring disciplinary process to be completed with 14 days from the date of suspension. The Arbitrator then in relief directed that the disciplinary process being marked by procedural irregularities be set aside and the dismissal penalty also be set aside. The Arbitrator directed that a hearing de novo was to be held. The Respondent was to be either reinstated without loss of salary/benefits. If however the parties were to agree to terminate mutually. It is common cause that Respondent later referred the matter for quantification of the award which award was duly granted.

The Appellant aggrieved noted the present appeal. The grounds of appeal are rather lengthy and cumbersome. The Appellant also filed an application for amendment of the grounds of appeal to incorporate ground 6 which was to read as follows;

“1.	By adding paragraph 6 to the grounds of appeal to read as follows:

‘6.	The Arbitrator erred in law in applying SI15 of 2006 to the matter before him when the matter was not subject to that law but to the University Charter (SI 29 of 1992).”

The application was opposed by the Respondent. On the date of hearing the Appellant through its representative made an oral application to amend the grounds of appeal. The applicant submitted that it was entitled to seek the amendment as it was raising a question of law and a question of law may be raised at any stage of proceedings including on appeal. There was nothing wrong in Appellant raising the point at that stage. The Respondent had also not alleged prejudice. The Appellant relied on Muchakata vs Netherburn Mine 1996 (1) ZLR 153 and 157 A.

It is the position at law that a point of law can be raised at any stage of the proceedings including for the first time an appeal. The general rule however is subject to a qualification that the introduction of the new point of law for the first time on appeal must not introduce an unfairness to the other party. See AusterKinds (Private) Limited vs Trade & Investment Bank (Limited) & Ors SC 92/95. In Muchakata vs Netherburn Mine referred to by Appellant the Supreme Court also stated that the introduction of a new point of law should not be prejudicial to other party.

Applying the principles outlined above to the present matter it was very clear to the court that indeed the Respondent would be prejudiced by the introduction of the additional ground of appeal number 6. It was clear from a perusal of the record that Appellant in initiating the disciplinary process invoked Statutory Instrument 15 of 2006. The Appellant however through the proposed ground of appeal was seeking to introduce the University Charter Statutory Instrument 29 of 1992.

It is common cause this issue was not before the Arbitrator. The Respondent was clearly going to be prejudiced by the introduction of the grounds of appeal as it would essentially mean the parties arguing the matter afresh on a different law. This was the reason why on the date of hearing I dismissed the application to amend the grounds of appeal.

In regards the rest of the grounds the Appellant raised three main points;

Firstly that the Arbitrator erred in the conclusion reached that the disciplinary case was not finalised within 30 days. The Arbitrator had further erred when he failed after establishing the procedural irregularities to proceed to determine matter on the merits. Secondly the Arbitrator had acted outside his mandate when he concluded that the disciplinary process had fallen outside the provisions of Statutory Instrument 15 of 2006 when the Respondent claim had been the disciplinary process fell outside 30 days in terms of Section 101 (6) of the Labour Act [Cap 28:01]. In other words the Arbitrator was required to interpret the provision in Section 101 (6) of the Labour Act [Cap 28:01] instead of Statutory Instrument 15 of 2006.

To address the first point. The record shows that the matter that was referred to the Arbitrator was whether or not the disciplinary proceedings by the applicant against the Respondent were completed within time period prescribed by the law. It is common cause that the disciplinary proceedings were conducted under the provisions of Statutory Instrument 15 of 2006 (the Model Code). The Appellant in these proceedings through its heads attempted to introduce a new factor by stating the proceedings were subject to the University Charter (Statutory Instrument 29 of 1992).  As discussed above that issue was not placed before the Arbitrator. The award in any event clearly shows on the 3rd page the Respondent had submitted that the proceedings were conducted in terms of Statutory Instrument 15 of 2006.

In regards the issue as to whether the proceedings fell outside the time limit. Statutory Instrument 15 of 2006 provides in Section 6(2)  for a 14 day period to complete the entire disciplinary process. Section 6 (2) reads as follows;

“6.2. 	Upon serving the employee with the suspension letter in terms of subsection (1), the employer shall, within 14 working days investigate the matter and conduct a hearing into the alleged misconduct of the employee and, may, according to the circumstances of the case –

serve a notice, in writing on the employee concerned terminating his or her contract or employment, if the grounds for his or her suspension are proved to his or her satisfaction; or

serve a notice, in writing on the employee concerned removing the suspension and reinstating such employee if the grounds for suspension are not proved.”

The submission was made by the appellant before the Arbitrator that the provision had to be read in conjunction with Section 101 (6) of the Labour Act [Cap 28:01] so that a party could only refer a matter to a Labour Officer on the expiry of 30 days from the date of rectification. That submission was clearly wrong. It also resulted in the Arbitrator going off on a tangent. I proceed to show why. It is the position at law that where there is a registered code of conduct it is unlawful to terminate on the basis of the Model Code. See Chikomba Rural District Council vs Pasipanodya 2012 (1) ZLR 577 (S). In casu the Appellant invoked the Model Code in commencing disciplinary procedures. Although the issue was not specifically argued before me the presumption is there was no registered Code of Conduct. If indeed there was a registered code in the form of University Charter (Statutory Instrument 29 of 1992) referred to in the proceedings however it would mean that the disciplinary proceedings were a nullity anyway on the authority of Chikomba Rural District Council vs. Pasiponodya referred to supra.

It is clear the Appellant having however invoked the Model Code the Appellant was required to conduct disciplinary proceedings in terms of that code. This means the disciplinary proceedings had to be completed within 14 days. Section 101 (6) of the Labour Act [Cap 28:01] the Appellant referred to and which the Arbitrator eventually based his award is clearly not applicable to

proceedings under the Model Code. The reason can be traced back to Section 101(5) of the Act. Section 101 (5) provides that a Labour Officer shall not intervene in any dispute or matter which is liable to be the subject of proceedings under a registered code. The Act specifically refers to a registered code which means a code registered in terms of the Labour Act [Cap 28:01]. The Model Code is not a registered code. It is established in terms of subsidiary legislation. Section 101 (6) however provides an exception to the subsidiary general rule laid in Section 101(5). It entitles an employee/employer to refer the matter to the Labour Officer where the matter has not been determined within 30 days. The reference is that of proceedings under a registered code. It is therefore clear that the matter in casu which was based on Statutory Instrument 15/2006 was wrongly referred to the Labour Officer on that basis.

It is also clear that the Appellant breached the provisions of Section 6(2) of the Statutory Instrument 15 of 2006. The record shows that disciplinary process was commenced through a suspension notice served on the 21st June 2011. The Disciplinary Committee determination to dismiss Respondent from employment was delivered on Respondent on 11th of August 2011. It is clear that the disciplinary proceedings exceeded the time limit as set out in Section 6 (2) i.e. 14 days under that code. What was the remedy available to respondent at the time. The Model Code does not expressly provide a remedy. In Stella Nhari vs Zimbabwe Allied Banking Group SC 51/2013 however the Supreme Court found that where the employer fails to meet the time frame it gives the employee the right to apply for a mandamus to compel the employer to comply with time limits. In casu Respondent clearly utilised the wrong procedure by referring a complaint to a Labour Officer. What is the effect of Appellant failure to complete disciplinary proceedings within the time limit? My view is such failure to compete the disciplinary process within the stipulated time renders the disciplinary process a nullity. I found support for this view in Lovemore Madhuku in Labour Court in Zimbabwe 2015 Edition at page 133. That really should be the end of the matter. The Court having reached the

same position as the Arbitrator the award would however have to be altered and substituted.

It is accordingly ordered as follows;

The appeal be and is hereby dismissed.

The arbitral award handed down by Arbitrator is set aside and substituted with an award that reads

“1. The claim is hereby allowed.

The Respondent having failed to complete disciplinary proceedings within the stipulated time-frames under the Model Code the proceedings are hereby nullified.

The Respondent shall reinstate the claimant to his original position without

loss of salary and benefits.

In the event that reinstatement is no longer tenable the Respondent shall

pay damages in lieu of reinstatement to be agreed upon by the parties failing which either party can approach the Tribunal for quantification.”

M.C. Mukome – respondent’s legal practitioners