C M E D (Private) Limited v Calisto Maniki

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/85/2014
HARARE, 13 NOVEMBER 2013 &
CASE NO LC/H/165/2009
14 FEBRUARY 2014
JUDGMENT NO LC/H/85/2014
---------




IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/85/2014

HARARE, 13 NOVEMBER 2013 &		CASE NO LC/H/165/2009

14 FEBRUARY 2014

In the matter between:-

C M E D (PRIVATE) LIMITED				APPELLANT

Versus

CALISTO MANIKI							RESPONDENT

Before The Honourable P Muzofa	:	Judge

For the Appellant	 T K Hove (Legal Practitioner)

For the Respondent	 Ms R R Matindindi (Legal Practitioner)

MUZOFA J:

This is an appeal against an arbitral award which ordered the reinstatement of the respondent.

The respondent was employed as an Area Manager by the appellant. The respondent was charged and dismissed on allegations of misconduct in terms of the appellant’s code of conduct for being absent from work for a continuous period of five (5) days. The respondent was requested to explain his absence from duty by letter dated 9 February 2009. The letter from the appellant’s General Manager Mr S Mavura was as follows:

“I went through your personal record including the file with the intention of establishing the vacation leave days taken by yourself from year 2006 to December 2008.

I then observed that on the following dates you were not in the office to perform your daily duties.

From 8 August 2006 to 4 September 2006

From 16 October 2006 to 24 October 2006

From 29 January 2007 to 10 March 2007

Please provide explanation as to why my office was not informed of your whereabouts.”

After a couple of explanations eventually the respondent was charged on 31 March 2009 for absence from duty for more than five days without authority. A board of inquiry was set up to hear the matter. It seems the respondent had in the meantime filed a complaint before a labour Officer. When the respondent was invited to a hearing he did not attend on the basis that the matter was before a Labour Officer. The board of inquiry proceeded in his absence. The respondent was found guilty as charged and dismissed with immediate effect. The respondent appealed to the Managing Director who dismissed the appeal. Eventually both parties submitted themselves for compulsory arbitration.

The arbitrator made a finding that the appellant had committed an unfair labour practice that the respondent was not absent from duty without authority and ordered reinstatement. The appellant then noted an appeal against the arbitral award on the following grounds:

The arbitrator erred in finding that C M E D (Pvt) Ltd had committed an unfair labour practice contrary to 12.5 of CMED (Pvt) Ltd Code of Conduct.

The respondent, in his written submissions alleged that the employer acted contrary to s 8.1 of its Code of Conduct. This section states that a disciplinary hearing should be completed within thirty days after receipt of a disciplinary report. The arbitrator did not refer to s 8.1 but instead referred to s 12.5 which relates to the period within with a disciplinary hearing should be concluded. The two sections relate to two different stages of the disciplinary process.

2.1	The arbitrator erred in finding that the respondent had proved that he was no (sic) absent from duty. He relied on documents that were not authenticated to justify that the respondent had been on leave.

In response counsel for the respondent raised the issue of prescription that the matter had prescribed. In its heads of argument the respondent had raised a point in limine that the grounds of appeal do not raise a question. Before this court counsel for the respondent did not raise the issue and the court will consider it as abandoned. The issues raised are on prescription and the adequacy of evidence proffered against the respondent.

I will deal with the issue of prescription first.

Counsel for the respondent submitted that in terms of s 94 of the Labour Act [Cap 28:01] labour disputes prescribe after two years. It was further submitted that the issue of misconduct was raised on 31 March 2009. Consequently the first allegation had prescribed on 4 September 2008, the second allegation had prescribed on 24 October 2008 and the third allegation had prescribed on 10 March 2009. It was submitted on behalf of the appellant that the issue of prescription does not arise because prescription runs from the date the dispute or unfair labour practice arose. In this case it was in February 2009 which was within the two year period.

Section 94 provides as follows:

Subject to subs (2) no labour officer shall entertain any dispute or unfair labour practice unless-

It is referred to him or

Has otherwise come to his attention within two years from the date when the dispute or unfair labour practice first arose.

…

(3)For the purpose of subs (1) a dispute or unfair labour

practice shall be deemed to have first arisen on the

date when-

The acts or omissions forming the subject of the dispute or unfair labour practice first occurred or

The party wishing to refer the dispute or unfair labour practice to the labour officer first became aware of the acts or omissions referred to in paragraph (a) if such party cannot reasonably be expected to have known such acts or omissions at the date when they first occurred.

In casu it is not clear on what date the matter was referred to a labour officer and there is no Certificate of No Settlement from the labour officer. What is clear from the documents filed of record is that by letter dated 6 April 2009 the respondent advised the appellant that he had referred the matter to a labour officer in terms of the appellant’s Code of Conduct. The issue that was referred to a labour officer was a complaint that the appellant had not concluded the disciplinary proceedings within thirty days as provided in the Code of Conduct. From this communication this court believes that the referral to the labour officer could have been made between 31 March 2009 and 6 April 2009, which would be April 2009.

Having made that finding the next issue is when the dispute arose. According to the respondent it arose in 2006 and 2007 respectively being the periods he was alleged to have unlawfully absented himself from work. According to the appellant the dispute arose in February 2009 when the appellant got to know of the unauthorised absenteeism. In my opinion subs 3 of s 94 of the Labour Act defines when a dispute arose. Clearly in terms thereof it is when the acts or omissions first occurred. In casu this should be in 2006 and 2007. In that event can the appellant be included in subs (b) thereof that it was not reasonably expected to have known of such acts or omissions at the date when they first occurred. I must say the appellant did not raise this issue and the court would not dwell on it too much. However, it is noteworthy that if the respondent indeed absented himself on the several days as alleged although intermittent it’s reasonably expected that the appellant should have known of such acts. I say this because as an Area Manager he must have had a superior whom he was answerable to. Can it be reasonable that the respondent would be absent from work for over five days and this remains unknown. I do not believe so. Accordingly this court’s finding is that the dispute arose in 2006 and 2007 respectively.

If this matter was subsequently referred to a labour officer between 31 March 2009 and 6 April 2009, then the labour officer entertained the matter outside the two year period as provided in the Act. The last date the respondent failed to report for duty was 10 March 2007 therefore by the beginning of April 2009 the matter had prescribed. The proceedings before the labour officer and the subsequent hearing by the arbitrator is a nullity. The matter had prescribed.

In the event that the court’s finding is wrong on prescription, I would still proceed to deal with the appeal on the merits. I will turn to deal with the grounds of appeal.

That the arbitrator erred in finding that the respondent had proved that he was on leave.

The gravamen of this case is whether the respondent was on authorised leave during the time he was not at work. The appellant relied on evidence from Chinhoyi University of Technology that showed that the respondent was a student enrolled for the Masters of Science in Strategic Management Degree for the period August 2006 to December 2007. This evidence was not controverted, that he was an enrolled student and that the respondent attended the said taught components of the block release lectures at the Chinhoyi University of Technology. The disputed part is whether the respondent was on authorised or unauthorised leave. The burden of proof was on the appellant to show that the respondent was on unauthorised leave during the time. Evidence was produced showing the official leave days that the respondent had taken in 2006 and 2007. The arbitrator rejected this evidence on the basis that it was not on letter head and was not supported by any official documents. On the other hand the arbitrator made a finding that the respondent had produced leave forms and official documents showing that he was on duty during the days he was alleged not to be on duty.

Counsel for the appellant argued that the respondent produced unapproved leave forms as evidence before the arbitrator. The court required the counsel to provide such documents but only one leave form was provided showing that the respondent applied for leave from 7 August to 9 August 2006 and it was signed by someone under the caption “checked/actioned by” the part with approval was not signed. This leave form does not support the appellant’s submission that the respondent had approved his leave forms. This argument is really premised on the evidence that was placed before the arbitrator. The arbitrator analysed it and came to a conclusion, the court cannot interfere with the factual findings.

That the appellant committed an unfair labour practice

This ground of appeal is based on the application of articles 8.1 and article 12.5 of the appellant’s Code of Conduct. The appellant’s Code of Conduct was not before the court, and upon request counsel for the appellant undertook to furnish the court with one on or before 18 November 2013. This was not done until a second request was made to counsel on 31 January 2014. I believe counsel as court officials are enjoined with a duty to fulfil their undertakings to this court. That as it may be a Code of Conduct was duly furnished to this court on 5 February 2014. The furnished Code of Conduct does not have article 8.1 and article 12.5 that form the basis of the first and second grounds of appeal. It was argued by counsel for the appellant that the two articles relate to different stages of disciplinary proceedings. However, since the court did not have before it the Code of Conduct the appellant’s argument remains a bare averment and it must be dismissed.

From the above discourses it follows that the appeal has no merit and accordingly the following order is made:

The appeal be and is hereby dismissed.

There is no order as to costs.

T K Hove & Partners, appellant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners