City of Harare v Nozias Chinwadzimba

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/821/2016
HARARE, 16 NOVEMBER 2016 &
CASE NO LC/H/108/2016
13 JANUARY 2017
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/821/2016

HARARE, 16 NOVEMBER 2016 &			CASE NO LC/H/108/2016

13 JANUARY 2017

CITY OF HARARE							APPELLANT

NOZIAS CHINWADZIMBA					RESPONDENT

Before the Honourable G Musariri, Judge

For the Appellant	Ms A Zeure (Officer)

For the Respondent     Mr M G Bumhira  (Attorney)

MUSARIRI J:

On the 25th January 2016 at Harare, Arbitrator P Shawatu issued an arbitration award. He ordered the appellant to reinstate the respondent or pay him damages in lieu of reinstatement. The appellant then appealed to this court. The respondent opposed the appeal. The grounds of appeal were four-fold as follows—

“1.	The arbitrator erred at law in holding that the matter has prescribed in terms of section 94 of the Labour Act [Chapter 28:01] yet prescription was interrupted by commencement of legal proceedings.

2.	The arbitrator misdirected himself at law in failing to recognize that a Certificate of Settlement once signed by both parties become (sic) a binding legal document.

3.	The Honourable Arbitrator failed to take into account the fact that the appellant (sic) entitled at law to reinstitute the disciplinary proceedings following correct procedures.

4.	The arbitrator’s award is so unreasonable and outrageous in its defiance of logic in that:

The Honourable Arbitrator failed to see that conciliation of the matter was not based on the merits of the case but on procedural irregularities.

The arbitrator erred in that he concluded the labour dispute on technicalities yet the respondent pleaded guilty that he unlawfully absented himself from work without reasonable cause.”

The respondent worked for the appellant as a Patrolman. He was charged with absenteeism from the 9th October 2008 to 23 February 2009. A hearing was held in 2010. He was found guilty and then dismissed from employment. He filed a complaint with the relevant NEC. During conciliation the parties settled the matter. Their Certificate of Settlement dated 9th February 2012 is filed of record. Therein it was agreed that the respondent would be reinstated but the appellant could reinstitute disciplinary proceedings. The appellant reinstituted proceedings between December 2012 and February 2013. The respondent was again found guilty and then dismissed. He filed another complaint at the NEC. In due course the matter was referred to arbitration resulting in the aforesaid award by Arbitrator Shawatu.

The Arbitrator based his award on the provision of section 94 (1) of the Labour Act [Chapter 28:01] (hereafter called the Act). The section provides that:

“(1)	Subject to subsection (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.”

Based on the two (2) year limit in the provision, the Arbitrator found that the matter was prescribed. The award does not say so explicitly but the implication is that the matter prescribed before the re-hearing in 2012/13. With due respect to both parties, the afore quoted provision of the Act does not speak to prescription. It simply prohibits a Labour Officer from dealing with a matter which is over two years old. Matters of prescription are governed by the Prescription Act [Chapter 8:11]. Therein section 15 (d) provides that matters generally prescribe within three (3) years. This means that claims arising from the respondent’s absences as late as February 2009 prescribed in February 2012. Thus the matter had apparently prescribed when the appellant reinstituted proceeding in 2013.

The appellant’s argument was that prescription was interrupted by the first proceedings in 2010. It relied on the provisions of section 19 of the Prescription Act. The section provides for judicial interruption by service of process. “Process” is also defined by the provision. Disciplinary proceedings by an employer are not covered therein. I consider that

“process” contemplates court process and not extra curial proceedings. It therefore follows that the running of prescription was not interrupted as averred by the appellant.

Alternatively the appellant argued that the Certificate of Settlement entitled it to proceed as it did. The Certificate certainly allowed the appellant to reinstitute proceedings against the respondent. But the certificate does not prevent the raising of the defence of prescription. Even if the certificate did so, it cannot override the provisions of the Prescription Act. In conclusion I agree with the arbitrator, though for different reasons, that the matter had prescribed. Accordingly the appeal cannot succeed.

Wherefore it is ordered that

The appeal be and  is hereby dismissed; and

Each party shall bear its own costs.

G Musariri

J U D G E