Dadirayi Nyamashuku v ZCBC-Caritas Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/484/16
HARARE, 29 JUNE 2016
CASE NO.
JUDGMENT NO. LC/H/484/2016
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/484/16

HARARE, 29 JUNE 2016				     CASE NO. LC/H/APP/373/16

AND 19 AUGUST 2016

In the matter between:-

DADIRAYI NYAMASHUKA				Applicant

And

ZCBC-CARITAS ZIMBABWE				Respondent

Before The Honourable E. Muchawa, Judge

For Applicant	Michael Mnemo (Legal Practitioner)

For Respondent	Tatenda Manhanzva (Legal Practitioner)

MUCHAWA, J:

This is an application made in terms of section 93 (7)(b)(ii) of the Labour Act [Chapter 28:01].

The applicant was employed by the 1st respondent as a finance and administration officer.  She was initially unprocedurally dismissed on the 25th of July 2014 without being properly charged nor a hearing having been conducted.

On the 1st of August 2014, the applicant lodged a complaint of unfair dismissal with the Labour Office.  Inexplicably this first complaint was not allocated to a labour officer.  The applicant lodged a fresh complaint on the 5th of November 2015.  The issues raised were unfair dismissal and unfair labour practice relating to the alleged failure by the 1st respondent to pay the full salary, to pay cash in lieu of leave and to remit full pension contributions to Old Mutual.

The prayer of the applicant was stated as follows;

“Wherefore claimant prays that she be reinstated to her position without any loss of salary and benefits as well as the payments of her outstanding salaries and unpaid contributions towards her pension fund.”

A hearing was held on the 5th of November 2015 and the matter was postponed to 17 December 2015 to enable the applicant to make its replication.  After continuation of the matter on 17 December 2015, the 2nd respondent, who is the Labour Officer dealing with the matter, ordered that parties submit written submissions in terms of an agreed time frame.  After the applicant had submitted its statement of claim, the 1st respondent’s legal practitioners assumed agency and wrote to the labour officer to suspend proceedings pending discussions aimed at resolving the matter amicably.

The first respondent addressed another letter to the labour officer on the 8th February 2016 withdrawing the earlier letter hence placing the proceedings back before the arbitrator.  It was communicated that the 1st respondent’s response would be filed by the 26th February 2016.

On the 26th of February, the 1st respondent wrote directly to the applicant.  The letter was a notice of reinstatement advising that the applicant had been reinstated to her position of Finance and Administration Officer with her full pay and benefits with effect from I February 2016.  It was also stated that the 1st respondent is obliged to pay her back pay and benefits for the period August 2014 to January 2016 and that particulars of such would be discussed upon resumption of duties.

The applicant’s legal practitioners queried in a letter why this notice had come directly from the 1st respondent who had legal representation.

The applicant did not heed the call to resume duties.  The 1st respondent, on the 16th of March 2016 then suspended the applicant from work on the charges of

absence from work for 5 or more consecutive working days without authority or reasonable excuse,

actual or attempted theft, embezzlement or fraud or, alternatively ,

gross negligence in the performance of duties, and

willful and unlawful destruction of the employer’s property.

The applicant’s legal practitioners objected in a letter to this insisting that the matter had to be resolved through the Labour Officer.

The 1st respondent’s legal practitioners requested a response to the charges and gave notification of a hearing to be held on the 7th of April 2016 in respect to the charges.  They also indicated that there was no basis for the applicant to insist on the matter being resolved through the Labour Officer, the 2nd respondent as they had already granted the applicant the relief she was seeking.

This current application is made on the basis that the 1st respondent usurped the powers of the 2nd respondent and sought to circumvent the process of conciliation by reinstating the applicant.

The second ground for the application is that the Labour Officer failed to finalise the matter within the specified period for conciliation despite the extension agreed upon and further failed to issue a certificate of no settlement at the expiry of the time period, or to make any ruling.

I deal with these issues below starting with the 2nd one.

Whether or not a “certificate of no settlement” was issued

The 1st respondent’s averment that as 17 December 2015, the 2nd respondent issued a certificate of no settlement in terms of section 93 (3) of the Labour Act is supported by the certificate of No Settlement Form L-R.2, reference 2965/15 produced before me.

This explains the sequence of events in casu.  Clearly there was an attempt to conciliate on the 5th of November 2015 where both parties made oral submissions.  It then makes sense that the agreement to file written submissions was meant to enable the Labour Officer to determine the matter in terms of Section 93 (5) (c) of the Labour Act (as amended).

There is no form LR 3 filled in by the parties to support the applicant’s contention that the parties agreed to extend the period of conciliation in terms of Section 3 (4) of SI 217/03.

I find therefore that the 2nd respondent did in fact issue a certificate of no settlement.

An application in terms of section 93 (7) (b) (ii) is made where a  Labour Officer refuses to issue a certificate of no settlement in relation to any dispute or unfair labour practice after the expiry of the period allowed for conciliation or any extension of that period.

This application fails on this basis.  I wish however to deal with the second ground raised as a cautionary measure.

Whether the reinstatement of the applicant was improper

The applicant’s case is that it was improper for the 1st respondent to reinstate the applicant as it did, yet the matter was before the Labour Officer.  It is argued that by doing so, the 1st respondent usurped the powers of the Labour Officer as it could not lawfully settle the matter outside the jurisdiction of 1st respondent.

It is further argued that the letter of reinstatement is vague and not clear on the unfair labour practice issues.

The 1st respondent argues that there is nothing inappropriate about the reinstatement as it was the remedy the applicant was seeking before the Labour Officer.

I agree that it would be absurd if this court was to prohibit that which the law permits.  Zimbabwe Railways Artisans Union & Ors vs National Railways of Zimbabwe HH 189-03.

Reinstatement is what the applicant was seeking and it is what was given to her.  Further, reinstatement is considered as the primary remedy for unfair dismissal.  See Art Corporation v Moyana 1989 (1) ZLR 304 (5).

The letter of reinstatement on record page 30 clearly states,

“By copy of this letter you are advised that you have been reinstated to the position of Finance and Administration Officer with your full pay and benefits with effect from 1 February 2016.

The organisation is obliged to pay your back pay and benefits for the period August 2014 to January 2016 particulars of which shall be discussed when you come to the office to resume your duties.”

There is authority from the Supreme Court that an employer is not barred from proceeding with a fresh disciplinary hearing upon realizing there are procedural irregularities and after reinstating the employee.  Disciplinary proceedings tainted with irregularities can be set aside and commenced afresh.  See Standard Chartered Bank of Zimbabwe Ltd v Matsika 1996 (1) ZLR 123 (5), Dalny Mine v Banda SC-39-99 and Mackenzie v Rio Tinto Zimbabwe SC 144/04.

Though the facts in the above cases relate to matters remitted by a court or tribunal, I believe the principle applies with equal force even where a party, mero motu sets aside the tainted proceedings and commences them afresh.

There is no merit in the applicant’s further argument that the letter of reinstatement should have come through the lawyers and not directly from the 1st respondent.  This is because the 1st respondent was the applicant’s employer and was the right persona to reinstate.

In the circumstances, the application be and is hereby dismissed for lack of merit.

Dururu A & Associates, applicant’s legal practitioners

Messrs Sawyer & Mkushi, respondent’s legal practitioners