Capital Bank v Farai Mabasha

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/835/2014
HARARE, 13 NOVEMBER 2014
CASE NO.
JUDGMENT NO. LC/H/835/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/835/2014

HARARE, 13 NOVEMBER 2014	                                 CASE NO. LC/H/50/14

AND 19 DECEMBER 2014

In the matter between

CAPITAL BANK						Appellant

And

FARAI MABASHA						Respondent

Before The Honourable P. Muzofa, Judge

For Appellant	-	Mr. S. Bhebhe  (Legal Practitioner)

For Respondent	-	Mr. M. Manderere (Legal Practitioner)

MUZOFA, J:

This is an appeal against an arbitral award reinstating the respondent and in the alternative payment of damages amounting to $221 625.00.

According to the Respondent he was employed by the appellant in 2002 as Assistant General Manager Corporate Banking.  He was later appointed the Executive Director in 2009.  In June 2011 the appellant bank was placed under curatorship.  There was injection of new capital and appellant was removed from curatorship.  It seems there were misunderstandings between the respondent and the new Board of Directors.  Respondent was demoted to the position of Head Corporate Banking.  The position of Executive Director was advertised, respondent applied for the position.  Respondent was re-engaged as the Executive Director of the appellant.  Respondent was given performance targets from June 2012 to August 2012 which targets he did not meet for reasons stated. After some exchanges parties commenced negotiations for mutual termination which process failed.  Respondent was subsequently charged in terms of section 4 (f) of Statutory Instrument 15 of 2006, (the National Code) “gross incompetent and inefficiency in the performance of work”.  Respondent was found liable and dismissed.  Respondent then referred the matter to a Labour Officer, since the appellant bank did not have an appeal structure.  The Labour Officer having failed to resolve the issue referred the matter to an arbitrator who made the order forming the basis of this appeal.

The grounds of appeal raise the following issues.

The jurisdiction of the arbitrator.

Whether there was adequate evidence against the respondent.

Computation of damages.

I propose to deal with the issues as outlined.

Jurisdiction

The undisputed facts are that the respondent appeared before a disciplinary authority.  No internal appeal was made since appellant did not have such a structure.  The issue that falls for determination is where an appeal in the circumstance lies.  The arbitrator relied on section 8 (6) of Statutory 15 of 2006 (the National Code) and section 98 (9) of the Labour Act [Chapter 28:01] (the Act) in concluding that the Labour Officer and by extension the arbitrator had jurisdiction to deal with the matter.

Jurisdiction is conferred to a body or authority by statute.  It should be therefore clear where an adjudicating authority derives its jurisdiction.  It is trite that parties cannot agree to confer jurisdiction to an authority see generally Mutukwa v National Dairy Co-operative Limited 1996 (1) ZLR 341 (S).  It was submitted by the Respondent that the National Code was the applicable code of conduct.  This is not in dispute.  It was further submitted that in terms thereof section 8 (6) of the National Code should be read to include a situation such as the one before the court, that is where there is no appeal structure.  Respondent conceded that the National Code did not provide for a situation such as this.  Section 8 (6) of the National Code provides as follows;

“A person who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the appeals officer or appeals committee, as the case may be, may refer the case to a Labour Officer or an employment council agent, as the case may be, within seven working days or receipt of such decision.”

The provisions of this section need no interpretation or inference as this court was urged to do by the Respondent.  It is clear that the section applies to the prosecution of an appeal.  In casu the Respondent had in receipt a decision by the disciplinary authority, he was not aggrieved by an appeals committee’s decision.  I agree with the reasoning in the case of Kingdom Bank Limited v Willard Murenje LC/JDT/MT/107/12 that an appeal other than from an Appeals Committee made in terms of the National Code must be made to the Labour Court and not with the Labour Officer in terms of section 8 of the National Code.

The Act provides and covers the Respondent’s situation section 92D of the Act deals with all appeals not provided for in the Act.  By inference this should be taken to imply all appeals not provided for in the Act and the related statutory instrument. This invariably includes the National Code. Section 92D of the Act provides

“A person who is aggrieved by a determination made under an employment Code, may within such time and in such manner as may be prescribed appeal to the Labour Court.”

The provisions of this section apply to the Respondent since as properly conceded by the Respondent he was aggrieved by a determination made under the National Code.  Clearly the Labour Officer and by extension the arbitrator did not have jurisdiction to deal with the matter.  The arbitrator fell into error by failing to appreciate that Section 8 (6) of the National Code referred to a decision of the Appeals Committee/Officer.  An arbitrator cannot confer himself jurisdiction over a matter from a decision of a disciplinary committee in terms of section 8 (6) of the National Code.

Respondent raised in the alternative that respondent did not appeal to the Labour Officer but referred the unfair labour practice in terms of section 93 (1) of the Act.  It was also submitted that in terms of Section 98 (9) of the Act the arbitrator had jurisdiction to hear the matter.  I donot understand section 93 (1) to provide jurisdiction to Labour Officers in all cases that are placed before them.  It must be read to refer to matters which are appropriately before the Labour Officer.  In casu the respondent’s appeal was to be made before the Labour Court.  In directing parties where to refer their cases the legislature intended to bring order in the prosecution of cases.  Whether Respondent claims he referred the matter or he appealed to the Labour Officer.  The bottom line is he was aggrieved by the decision of a disciplinary body and not of an appeals body.  I do not think section 98 (9) of the Act takes respondent’s case any further.  The powers of the arbitrator do not in anywhere mutate the arbitrator into a Labour Court.  This section only speaks to the force and effect of the arbitral award that it has the same effect as an order of the Labour Court.  This alternative argument is also untenable.  The Labour Officer did not have jurisdiction to deal with the matter and accordingly the arbitrator.

Having made the above finding on jurisdiction, it then follows that the determination made by the arbitrator is a nullity.  There is no need to determine the issues raised from the decision.  The following order is made.

The appeal is upheld with costs.

KANTOR & IMMERMAN, Appellant’s legal practitioners

KADZERE HUNGWE & MANDEVERE, Respondent’s legal practitioners