City of Harare v Luckson Kadzima

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/823/2016
HARARE, 24 OCTOBER 2016 &
30 DECEMBER 2016
CASE NO LC/H/35/2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/823/2016

HARARE, 24 OCTOBER 2016 &				           CASE NO LC/H/35/2016

30 DECEMBER 2016

In the matter between

CITY OF HARARE							APPELLANT

Versus

LUCKSON KADZIMA						RESPONDENT

Before the Honourable Muzofa J

For the Appellant	Ms A Zeure (Legal Officer)

For the Respondent	G Mapaya (Legal Practitioner)

MUZOFA J:

The respondent was employed by the appellant as a Traffic Enforcement Supervisor until August 2015 when he was dismissed from employment following a disciplinary hearing.

The background to this case is not disputed. Following allegations of misconduct the respondent was charged and invited for a hearing on 13 December 2013.

According to the appellant the respondent through his legal practitioners caused the matter to be postponed for different reasons on about seven occasions, the appellant sought postponements twice and the matter was also postponed due to non-completion. These postponements were by consent of both parties.

On 19 July 2015 a date which parties had agreed to continue with the matter, the respondent submitted a letter to the disciplinary committee. The said letter was a notification that the matter had been referred to a Designated Agent for conciliation on 24 June 2015 in terms of a section in the code equivalent to section 101 (6) of the Act. Consequently the respondent was not in a position to continue participating in the disciplinary proceedings.

Despite the notification, the disciplinary committee decided to proceed with the case based on the appellant’s Code of Conduct. The respondent did not take part in the further proceedings.

The disciplinary committee proceeded and eventually found the respondent liable and he was dismissed from employment.

The respondent was not satisfied with the decision, he referred the matter to the Employment Council for Harare Municipal Undertaking for conciliation. When conciliation failed, the matter was referred to arbitration.

The arbitrator made a finding that the respondent’s contract of employment was unlawfully terminated. The appellant was ordered to reinstate the respondent without loss of salary and benefits and damages in lieu of reinstatement.

The appellant has appealed against the award.

Three grounds of appeal were initially relied on. The respondent raised a preliminary point that the grounds of appeal were not on points of law.

After a consideration of both parties’ submissions the court struck off the second ground of appeal.

Consequently two grounds of appeal remain for consideration.

The first ground of appeal impugns the arbitrator’s finding that the referral to the Employment Council for Harare Municipal Undertaking by the respondent was proper in line with the law.

For the appellant it was submitted that the respondent waived his right to be tried within thirty days when he caused the postponement of the case on several occasions.

The court was referred to clause 12.10 (b) of Statutory Instrument 171 of 2010 which provides:

“… if an employee postpones a hearing he waives his right to be tried within prescribed time frames.”

It was also submitted that by submitting to the disciplinary authority after the expiration of the thirty days, the respondent waived his rights to rely on clause 12 (3)(d) and section 101 (6) of the Act.

In response it was submitted for the respondent that the respondent was within his right to refer the matter in terms of the Code of Conduct and the Act. It was not in dispute that the matter had gone well beyond the prescribed thirty (30) days prescribed by the two provisions relied on. The court was referred to Watyoka v Zupco SC 87/2005 case in support of the respondent’s submission. According to the respondent once a referral was made, the disciplinary committee lost its jurisdiction to deal with the matter. It should have given way to the process initiated by the respondent.

The respondent through his representative further argued that there was no waiver due to the postponements.

It was said in as much as the respondent caused postponements, the appellant also caused postponements.

To that extent, for the postponements to only work against the respondents is unfair. There must be equality before the law.

Before delving into the ground of appeal there’s need for me to highlight on the approach by the arbitrator.

The background to this case shows that two referrals were made by the respondent. The first referral letter which letter was produced by the respondent before the disciplinary committee.

There is no information as to what happened to that first referral in terms of clause 12 (3)(d) of the code and section 101 (6) of the Act.

After the disciplinary committee proceeded to hear the matter it dismissed the respondent.

The matter was again referred for conciliation and eventually to an arbitrator.

According to the arbitrator only one term of reference was for determination being:

“To determine the matter in terms of section 12 (3)(d) of S I 171 of 2010 as read with section 101 (6) of the Labour Act.”.

It was not disputed that this was the term of reference.

The section relied on provide as follows section 101 (6) of the Act:

“If a matter is not determined within thirty days of the date of the notification referred to…”

Clause 12 (3)(d) uses the same language.

In casu at the time of the second referral the matter had already been determined. In the Watyoka case supra CHEDA JA noted at page 4:

“Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it 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 relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral to challenge a determination that has already been made….

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

And at page 5:

“The thirty days therefore refers to the period after which the party concerned may complain, and does not make any determination made after its expiry a nullity.”

The position of the law as interpreted is clear. A referral in terms of section 101 (6) of the Act may not be made after a determination has been made, even if the determination was made after the prescribed thirty (30) days.

The proper procedure would be to appeal against the decision of the disciplinary committee.

To that extent, if the arbitrator in casu was seized with the matter in terms of section 101 (6) of the Act as read with clause 12 3(b) of the appellant’s code, he had no jurisdiction to deal with the matter. The Watyoka case supra that the arbitrator was referred to but decided it was inapplicable in the case was instructive in the determination of this case.

A proper interpretation of section 101 (6) applied to this case lead to only one conclusion that the disciplinary committee’s decision was not a legal nullity.

Even if my finding on the first issue on the referral maybe incorrect the appeal remains merited based on the second issue raised by the appellant.

It was submitted for the appellant that by continuously requesting for postponements, the respondent waived his right to have his matter determined within the prescribed time frames in terms of clause 12 (10)(b) of the Code.

For the respondent it was argued that at the time of the initial referral to a designated agent by the respondent, the appellant should have stayed the matter until the designated agent had made a determination. At that stage the appellant had no jurisdiction to continue with the matter as it did.

The respondent relied on the case of Marimo v National Breweries SC 125/00. In that case EBRAHIM JA confirmed the position that in such a case jurisdiction is not lost by failure to determine the matter within the prescribed period. Jurisdiction is only lost if one or both parties refers the matter to a labour relations officer for determination after thirty days have expired.

This is the correct position of the law. However the facts of this case are different.

The disciplinary committee proceeded with the proceedings based on clause 12 (10(b) of the code which provides:

“if an employee postpones a hearing he waives his right to be tried within ‘prescribed time frames’”.

The respondent argued that this provision is inapplicable in this case because both parties caused the postponements therefore the blame and prejudice should not be shouldered by the respondent alone. There must be equality before the law.

A code of conduct is made between the employer and employee representatives. The code is a template in which the parties agree how to regulate the employment relationship.

The terms of the code are binding on both parties. When an employee joins the company in the absence of a clear term that the Code of Conduct is binding on the employee it is implied that the Code applies and binds employees.

In my view the terms of a Code are as binding as a contract. It is not for the court to excuse any party from being bound by the terms of the Code. See Magodoa & Ors v Care International Zimbabwe SC 24/2014.

In casu clause 12 (3)(b) is very clearly a postponement by an employee means a waiver to have the matter determined within the prescribed time.

The respondent challenges this provision. This is not what the court has been asked to determine. The clause has to be applied as it is until it is varied either by negotiation or proper processes thereof.

To that extent, it was within the appellant’s right to proceed with the disciplinary proceedings based on the code. The initial referral was null and void in view of clause 12 (3)(b) of the Code.

As stated before the second referral was also null and void since it was made after a determination was made.

Clearly the appeal is merited.

The appeal be and is hereby upheld.

The appellant’s decision is hereby confirmed.

Mapaya & Partners, respondent’s legal practitioners