City of Harare v Nosbert Maonera

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/731/13
HELD AT HARARE ON 5TH NOVEMBER, 2013
CASE NO. LC/H/130/12
AND 3RD JANUARY, 2014
JUDGMENT NO. LC/H/731/13
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/731/13

HELD AT HARARE ON 5TH NOVEMBER, 2013   CASE NO. LC/H/130/12

AND 3RD JANUARY, 2014

In the matter between:-

CITY OF HARARE 							Appellant

And

NOSBERT MAONERA							Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: 	Ms. C. Maunga (Chief Legal Officer)

For Respondent:	Mr. L. Selemani (Legal Officer, HMWU)

MHURI J.:

This is an appeal against an arbitral award issued on the 13th February, 2013.

The award reads:-

“Wherefore after having carefully considered comprehensive evidence submitted, I therefore order as follows;

Reinstatement of the claimant with full pay and benefits with effect from the date of dismissal.

If reinstatement is no longer an option, damages in lieu of reinstatement should be paid over and above the back pay (up to the date of award).

Parties may approach the arbitrator for quantification of such damages.

The award shall be implemented within 14 working days from the date of receipt of award.”

Appellant was aggrieved by this award and noted this appeal on the following grounds:-

That the Arbitrator erred at law in finding that she had the jurisdiction to hear the matter on the basis that it was a practice in the Employment Council that Designated Agents were handling appeals against the Disciplinary Committee’s decisions.

That the Arbitrator erred at law by making a finding that there were procedural inconsistencies in that the charge Respondent was dismissed of was different from the one he was notified of.

That the Arbitrator erred at law in ordering a hearing de novo on one hand and on the other ordering reinstatement.

That the award was so unreasonable and irrational in its defiance of logic to constitute a ground of appeal.

Appellant’s prayer was that the award be set aside and it be found that the Arbitrator had no jurisdiction to hear the matter and that the matter be referred to the Employment Council’s Appeals Committee in terms of Part VIII of SI 17/2007 or that it be found that there were no procedural irregularities in the disciplinary procedures and the matter be remitted to the Arbitrator for it to be dealt with on the merits.

Respondent’s disciplinary proceedings were conducted in terms of the Harare Municipal Undertaking (Code of Conduct and Grievance Handling Procedure) Collective Bargaining Agreement SI 17 of 2007 (The Code).

Part VIII of the Code provides for the appeal procedure.

Clause (i) is quite clear and unambiguous.  It states:-

“If the employee wishes to appeal against the decision of the Disciplinary Committee, he shall within ten (10) working days of receiving communication of the decision of the disciplinary committee, give notice to the Head of Department, that he wishes to appeal against the decision and shall state his grounds of appeal.”

Clause (iii) enjoins the Human Resources Department/Head Office Department to prepare a file for the Appeal’s Committee.

Under the definition Section, Appeal’s Committee (Review Board) is defined as referring to a subcommittee set up by Council and empowered to hear and determine appeals from decisions of the Hearing Committee and is the final internal court of appeal.

In terms of clause (v) the Human Resources Department shall forward the file to the Appeals Committee’s chairman which committee shall thereafter hear the appeal and either endorse the Disciplinary Committee’s decision or make its own decision.

In casu, after receiving the Disciplinary Committee’s decision dismissing Respondent from employment, Respondent through his Union (Harare Municipality Workers Union) (HMWU) referred the matter to the Chairman National Employment Council Harare for conciliation. This was despite the clear provisions of Part VIII of the Code and the definition of Appeals Committee as alluded to above.  This was an error on the part of the Respondent.  Consequently this erroneous move has an effect on the subsequent proceedings in that the Arbitrator had no jurisdiction to hear the appeal.  To confer jurisdiction on oneself on the basis that it has been the custom and practice is legally wrong in my view.  The fact that a wrong had been practiced unchallenged does not make it right at all.

A similar situation was dealt with by the Supreme Court in the case involving the locus standii of the Workers Committee before the superior courts, where Workers Committee had been suing and appearing on behalf of workers without any challenge.  GARWE JA had to put a stop to this practice as the practice could not be held to clothe the Workers Committee with locus standii which the Committee lacked legally.

CT BOLTS (PVT) LTD V WORKERS COMMITTEE SC 16/12.

The Arbitrator ought to have declined to hear the appeal for lack of jurisdiction and refer Respondent to the Appeals Committee.

Having found that the Arbitrator had no jurisdiction to hear the appeal, the proceedings cannot be allowed to stand.

That being the case, I shall not delve into the other grounds of appeal.

In the result I will grant Appellant’s main prayer that the appeal be referred to the Appeals Committee for determination.  Part IV of the Interpretation Act [Chapter 1:01] is instructive.  Section 17(1) (c) and (e) provides for the effect of repeal of an enactment.  It states

“(1) Where an enactment repeals another enactment, the repeal shall not –

…

…

Affect any right … accrued or incurred under the enactment so repealed.

…

Affect any … legal proceeding or remedy in respect of any such right, privilege, obligation, liability … and any such … legal proceeding or remedy shall be exercisable, continued or enforced … as if the enactment had not been so repealed.”

Subsection (3) is also relevant and it reads –

“Where an enactment repeals and re enacts with or without modification, any provision of any other enactment, all proceedings commenced under any provision so repealed shall be continued under and in conformity with the provision so repealed.”

Accordingly I make the following order

That both the conciliation and arbitration proceedings be and are hereby quashed.

As prayed by Appellant, that the appeal be and is hereby referred back to the Employment Council for the Harare Municipal Undertaking Appeals Committee in terms of Part VIII of SI 17 of 2007.