City of Harare v T P R Nyanhete

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/794/2014
HARARE, 10 SEPTEMBER 2014
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/794/2014

HARARE, 10 SEPTEMBER 2014 &		            CASE NO LC/H/424/2012

21 NOVEMBER 2014

In the matter between

CITY OF HARARE							        APPELLANT

Versus

T P R NYANHETE							        RESPONDENT

Before The Honourable R F Manyangadze	:	Judge

For the Appellant	       Ms A Zvoutete    (Principal Legal Officer)

For the Respondent    T Kativhu  (Legal Officer, HMWU)

MANYANGADZE J:

This is an appeal against an arbitral award issued by Honourable L M Gabilo on 23 April 2012. The award set aside the dismissal of the respondent by the appellant, and ordered his reinstatement.

The factual background, briefly outlined, is that the respondent was employed by the appellant up to the time of his dismissal in February 2011. Prior to February 2009, the respondent worked under the Zimbabwe National Water Authority (ZINWA). On 1 February 2009 following a Government directive, all employees previously in the Water and Sewer Management functions of the appellant were transferred back to the local authority, i.e. the appellant. The respondent was among these employees.

The respondent, now under the appellant, was charged with misconduct for absenting himself from work. The period of absenteeism was from 1 February 2009 to 16 October 2009. He was found guilty and was dismissed from employment on 3 February 2011.

The respondent challenged his dismissal at the National Employment Council, where attempts at conciliation were unsuccessful. The matter was referred to compulsory arbitration, resulting in the contested arbitral award.

The appellant’s grounds of appeal are stated as follows:

The arbitrator erred at law in concluding that the letter by the Director of Harare Water dated 26 May 2010 to the appellant constituted a new contract of employment.

The arbitrator erred at law by holding that the appellant had disciplined the respondent in retrospect yet the appellant had constituted disciplinary proceedings in terms of the law.

The arbitrator erred at law in holding that the appellant had waived its right by delaying the institution of disciplinary proceedings in terms of S I 15 of 2006.

The arbitrator’s award is so unreasonable in its defiance of logic to constitute a ground of appeal.

The first ground of appeal is concerned with the letter written to the respondent by the appellant on 26 May 2010. The letter called upon the respondent to resume duty.

On the basis of this letter, the respondent contended that he was offered a new contract of employment. He entered a new contract of employment on 31 May, 2010. If the respondent’s contention is upheld, it means that the alleged misconduct fell outside the period of the new contract of employment. He could therefore not be charged with an act of misconduct that occurred in a previous contract of employment. Although the respondent’s submissions do not explicitly express it in this way, this is the clear implication of his argument that he entered into a new contract of employment. It in fact, appears to be the main basis of his denial of the misconduct allegations.

The appellant averred that at no point was the respondent’s contract of employment terminated, such that he can talk of a new contract of employment. The appellant explained that it ceased the respondent’s salary, an act that was tantamount to unlawful suspension. Fearing that the unlawful suspension could nullify any disciplinary proceedings it held against the respondent, the appellant removed the unlawful suspension and placed him back on salary. This action did not amount to offering him a new contract of employment.

It is, under the circumstances, important to look at the letter in question. It is couched in the following terms:

“RE RESUMPTION OF DUTY

You last reported for duty on Friday 31 October 2008 and you did not inform your superior of your whereabouts.

However, on 16 October 2009, you reported for duty and you indicated that you were absent from work due to illness. You were requested to furnish a certificate of sickness duly signed by a Medical Practitioner but up to date you have not yet responded.

Please resume your normal duty on Monday 31 May 2010. May you report to the Sewerage Manager at Old Mutual House, at 8.00 am for replacement.

By a copy of this letter, Salaries Office is advised to resume salary payment.”

It is difficult to appreciate the basis on which this letter is being regarded as an offer of a new contract of employment. The subject matter is “RESUMPTION OF DUTY”. It is clearly requesting the respondent to resume duty. It is not asking him to sign a contract of employment. It does not bear any of the features of a contract of employment, as required by section 12 (2) of the Labour Act, [Cap 28:01].

In her arbitral award, the arbitrator made a finding that the appellant “re-hired” the respondent. She based her finding on the letter in question. There is no explanation why she found this letter to be a new contract of employment.

The letter, in my view, is consistent with the appellant’s averment that the respondent’s contract of employment had not been terminated. The respondent was simply resuming duty. He was not being “re-hired”. There is no justification for the arbitrator’s finding that the letter constituted a re-hiring.

I therefore find that there is some merit in this ground of appeal. It seems to me the second and third grounds of appeal relate to the same issue. They are concerned with the delay in the institution of disciplinary proceedings, and how this was treated in the arbitral award.

It appears the arbitrator found the delay in the institution of the arbitral proceedings to be a fatal irregularity. The basis for that finding was that the respondent was required, in terms of section 6 (1)(2) of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006, to conduct the disciplinary proceedings promptly. The arbitrator expressed it this way:

“That the respondent waived his right by not conducting disciplinary proceedings immediately as provided in section 6 (1) (2) of S I 15 of 2006.”

As pointed out by the appellant in its Heads of Argument, paragraphs 14 – 16, the respondent was disciplined in terms of the Collective Bargaining Agreement : Harare Municipal Undertaking (Employment Code of Conduct), S I 171 of 2010 (CBA). He was not disciplined in terms of S I 15 of 2006, the national Code. It is not clear why reference was made to the National Code, when it was not the one under which the proceedings were conducted.

The appellant averred that a delay in conducting disciplinary proceedings does not amount to a waiver of the right to discipline, as there is no such provision in the CBA. Neither is it there in the National Code.

The arbitrator’s finding, of a waiver to conduct disciplinary proceedings, was premised on a wrong statutory provision, which was not the applicable Code of Conduct. Consequently, it cannot be upheld.

The fourth ground of appeal is framed in general terms, that of the unreasonableness of the award. This is elaborated in the appellant’s Heads of Argument, which point out that the arbitrator failed to give reasons for most of his findings. A perusal of the arbitral award shows that much of it is a summary of the parties submissions. Only a small portion of it constitutes the arbitrator’s findings and analysis. It is in fact a terse summary of the findings. Reasons for most of the findings are not given. That makes it very difficult to uphold the award, in the light of the appellant’s averments, impugning the award.

There is however, an issue that has been raised by the respondent that deserves close attention. It is the issue of the Code that the appellant used in the disciplinary proceedings. The appellant charged the respondent in terms of the Collective Bargaining Agreement: Harare Municipal Undertaking (Employment Code of Conduct) S I 171 of 2010.

At the time of the commission of the alleged misconduct, the applicable Code of Conduct was S I 17 of 2007. This was repealed and replaced by S I 171 in 2010. Statutory Instrument 171 of 2010 was therefore not applicable to an offence committed prior to its promulgation. It could not be applied retrospectively. This is perhaps hat the respondent meant when he averred that he was being disciplined retrospectively. This averment however, was not clearly articulated, as the respondent seemed to refer to it in the context of a delay in the conduct of the disciplinary proceedings. The respondent’s articulation of his case was further confused when he referred to S I 15 of 2006 as the applicable Code.

Whilst the respondent was correct that the wrong Code of Conduct was used i.e. Statutory Instrument 171 of 2010, he was wrong in averring that the Code of Conduct that should have been used was Statutory Instrument 15 of 2006. The simple reason is that the appellant had, at the material time, a registered Code of Conduct that governed its grievance and disciplinary procedures. That Code of Conduct was S I 17 of 2007.

It is significant that the appellant conceded this irregularity on its part. It then sought to have the disciplinary proceedings stand, arguing that the use of S I 171 of 2010 was not prejudicial, as the same offence is provided for in the repealed Code. In other words, it contended that the procedural irregularity did not vitiate the proceedings in question.

The position of the law is very clear on this issue. According to section 20 of the Interpretation Act, [Cap 1:01].

“Every Statutory Instrument shall be published in or with or as a supplement to the Gazette and shall come into operation on the date of its publication unless some other date is fixed by or under the Statutory Instrument for the coming into operation thereof.”(underlining added)

The irregularity committed by the appellant is not inconsequential. It is fundamental to how statutory law operates. The appellant cannot legally charge the respondent under a statutory instrument that came into operation after the offence had been allegedly committed.

It appears the appellant’s representative realised this anomaly, and implored the court to remit the matter to the Disciplinary Committee. She submitted that:

“In the event that the court finds that the use of the new Code was irregular, I pray that the matter be referred back to the Disciplinary Committee for re-hearing, using the correct Code, whilst the employee remains on dismissal.”

This seems to me to be the proper course of action. The respondent must be charged in terms of the law that was applicable at the time he allegedly perpetrated the misconduct. What however, cannot be sustained is the dismissal. It was done under the wrong law. Application of the wrong law was the basis of his dismissal. If the proceedings are nullified the parties revert to the status quo ante, until the respondent’s fate is determined through fresh disciplinary proceedings. By conceding that it used the wrong law, and at the same time insisting that the respondent remains dismissed, the appellant appears to be approbating and reprobating.

The other issues in the grounds of appeal, having been disposed of in favour of the appellant, what remains is for a rehearing of the matter, on the merits. Thus, the hearing de novo will be confined to the question of whether or not the respondent committed the offence in question. The arbitral award did not make a pronouncement on this. It set aside the dismissal on the basis of findings that have been challenged in this appeal. It is to this extent that the appeal succeeds. It is a partial success, in that it does not secure the outright dismissal of the respondent, who has to undergo the disciplinary proceedings again.

Care must be taken by those responsible for administering disciplinary proceedings, that the correct Code of Conduct and provisions are applied. This will avoid the often expensive, protracted and cumbersome process of conducting the disciplinary proceedings de novo.

In the circumstances it is ordered that:

The appeal be and is hereby allowed.

The arbitral award issued on 23 April 2012 be and is hereby set aside.

The matter be and is hereby remitted to the appellant’s Disciplinary Committee for a determination on the substantive question of whether or not the respondent committed the misconduct alleged, under the Code of Conduct applicable at the material time.

Each party bears its own costs.