Econet Wireless (Pvt) Ltd v Gerald Manduna

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/493/14
HELD AT HARARE 16TH JULY 2014
CASE NO
JUDGMENT NO LC/H/493/14
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/493/14

HELD AT HARARE  16TH JULY 2014			CASE NO LC/H/86/14

& 1ST AUGUST 2014

In the matter between:-

ECONET WIRELESS (PVT) LTD				Appellant

And

GERALD MANDUNA					Respondent

Before The Honourable B.S. Chidziva, Judge

For Appellant		Mr T.W. Nyamakura (Legal Practitioner)

For Respondent		Mr J Mutasa  (Trade Unionist)

CHIDZIVA, J:

This is an appeal against the decision of Honourable Arbitrator N Mawodza dated 15 May 2013 which reads as follows

“Therefore the case law of prescription does not apply since the matter was registered with the Ministry of Labour for avoidance of doubt under Case No 050/05.

By this award parties are advised that the hearing shall proceed to determine the merits of the case on a date to be advised.

I award accordingly”

The brief history of this matter is that respondent is a former employee of Econet Wireless.  He was dismissed from employment in 2004.  Respondent challenged his dismissal in 2010.  The arbitrator found that the respondent was unfairly dismissed because he was not dismissed in terms of a Code of Conduct.  The arbitration also found that there was no fair hearing because the there was no proof that respondent was accorded representation and that he was given adequate time to prepare for the hearing.

The appellant’s grounds of appeal are that;

The arbitrator erred by failing to find that by 2010 when respondent brought up his case of unfair dismissal the matter had prescribed in terms of section 94 (1) of the Labour Act.

The arbitrator erred by finding that appellant violated section 12 B (2) OF THE Labour Act when the current Act does not apply to the dispute.

The arbitrator erred at law in reinstating respondent from the date of the arbitral award instead of the date of dismissal being 7 October 2004.

The arbitrator erred and misdirected herself in finding that appellant should have kept respondent’s records beyond 3 years.

The arbitrator erred by finding that minutes of respondent’s disciplinary hearing placed before her were inadismissable as evidence of what transpired in respondent’s disciplinary hearing of 2004.

In response the respondent told the court that;

From the date of the unlawful dismissal which is 7 October 2004 the dispute was continuing and that the issue of prescription does not stand.

No relevant Code of Conduct was used to charge the respondent.

Appellant was supposed to keep respondent’s records beyond three years as the dispute was on going.

Arbitrator acted professionally by refusing the doctored minutes as they were not automatic.

Respondent therefore prayed for the dismissal of the appeal.

The first issue to be decided is whether the matter had prescribed or not

when it was taken to the arbitrator.  Section 94 (1) (1) (b) of the Labour Act states that;

“No labour officer shall entertain any dispute or unfair labour practice unless has otherwise came to his attention with two years from the date when the dispute or unfair labour practice first arose.”

Respondent was dismissed on 7 October 2004.  The respondent told this

court that he then took up the matter for conciliation in January 2005 i.e. 4 months after the unfair dismissal.  The appellant did not adduce any evidence to the contrary.  It therefore follows that the matter was referred to the Ministry of Labour within two years from the date when the dispute had first risen at conciliation the matter was given its case number as 050/50 at the Ministry of Labour.

Furthermore section 12 B (2) (6) states that

“Every employee has the right not to be unfairly dismissed if subject to subsection (3), the employer failed to show that he dismissed the employee in terms of an employment code…”

This therefore means that respondent was suppose to be charged under the Electronics Communications and Allied Industry Code. This code was registered in December 2002.  There is no evidence to show that respondent was charged under this code.  In the code section 5 (1) states that

“every work place shall have a disciplinary and grievance handling committee of equal members drawn from workers and management…”

Respondent in his heads of argument submitted that he only learnt about the hearing when he was already standing before the panel.  The representatives were just imposed on him.  This also persuades this court to believe that there was no fair hearing.

The appellant further submitted that the arbitrator erred by reinstating the respondent from the date of the arbitral award instead of the date of dismissal which is 7 October 2004.  Reinstating respondent from the date of the award can prejudice the respondent as the award was only issued in May 2013 which is about (9) nine years after the date of dismissal.  However section 89 (2) (a) (ii) of the Labour Act has endowed the Labour Court with powers to;

“confirm, vary, reverse or set aside the decision, order or action that is appealed against, or substitutes its own decision or order…”

In this case therefore this court can vary the arbitral order to cure the

prejudice the respondent may have suffered due to the date from which the award is to start operating.  However there is nothing on the award to show that respondent was reinstated from which date.

The other ground of appeal that has been raised is that the arbitrator erred by finding that the appellant should have kept records of proceedings for more than (3) three years.  It has been submitted that the dispute was taken to the Ministry of Labour for conciliation in January 2005.  It was registered under case number 050/50.  By the year 2013 the matter had not yet been concluded.  The respondent has told this court that the delay in concluding the matter was because of the appellant’s delaying tactics. The appellant was obliged to keep the respondent’s records beyond three years since the dispute had not yet been resolved.

The other ground of appeal is that the arbitrator erred by finding that the minutes of the disciplinary hearing were inadmissible.   To start with if appellant had failed to keep respondent’s records there was no way they could have kept records of the disciplinary hearing.  The unsigned affidavit by people who claimed to be panel members were not authentic evidence.

In the light of the foregoing this court finds that the appeal lacks merit.

Accordingly it is ordered that

The appeal be and is hereby dismissed.

The respondent be and is hereby reinstated to his former position from the date of dismissal.

Mtetwa, Nyambirai, appellant’s legal practitioners