Elephant Tunnellers v Manatsa Vushe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
CASE NO
LC/H/1250/24
HELD AT HARARE, 11th of FEBRUARY 2025
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IN THE LABOUR COURT OF ZIMBABWE                       CASE NO LC/H/1250/24

HELD AT HARARE, 11th of FEBRUARY 2025

AND 6 MARCH 2025

In the matter between: -

ELEPHANT TUNNELLERS:					1ST APPELLANT

And

MANATSA VUSHE:						RESPONDENT

BEFORE THE HONOURABLE KACHAMBWA J,

For the Appellant:                                    M Mandevere, Legal Practitioner

For the Respondent:                                S Katsuwa, Legal Practitioner

KACHAMBWA, J:

THE APPEAL

This is an appeal against the whole Arbitral Award handed down by Honorable Arbitrator, N. Shumba on the 14th of November 2024. Appellant raised Five grounds of appeal as follows:

“The Honourable Arbitrator grossly misdirected himself at law in assuming jurisdiction over a matter which had been heard in default of appearance by the Claimant.

The Honourable Arbitrator grossly misdirected himself at law in his finding that S.I 15 2006  was not applicable to the case when the Respondent and Claimant were not members of the NEC for Mining Industry when the Respondent and Claimant were not members of the NEC for the Mining Industry.

The Honourable Arbitrator grossly misdirected himself at law in his finding that, the Claimant was employed by the Appellant in the Mining Industry and that the Appellant belonged to the NEC for the Mining Industry at the same time ruling that the Claimant was not employed by Laryscope Healthcare (Pvt) Ltd when the mining claims Claimant was not employed by Laryscope Healthcare (Pvt) Ltd and not the Appellant.

The Tribunal grossly misdirected itself in its finding that the Claimant was underpaid in the amount of US$993.66 and in leave days in the sum of US$182.50 on the basis of the CBA for Mining Industry when the Appellant is not part of the CBA for Mining Industry.

Further, the Honourable Tribunal grossly misdirected itself in its finding that the said underpayments should be paid 65% in United States dollars and 25% in the Zimbabwean Currency at the prevailing interbank rate at the date of payment.”

The Court having heard the parties, upheld the appeal and now provides reasons for its decision as follows.

BACKGROUND OF APPEAL

The Respondent was employed by the Appellant as a Security Guard, earning a salary of two hundred United States dollars (USD 200). He was employed under an indefinite verbal contract. On the 27th of November 2023, the Respondent was suspended in accordance with Labour National Employment Code of Conduct Regulations 2006 (SI 15 of 2006). The Respondent was dismissed after undergoing disciplinary proceedings based on the same Code of Conduct. The respondent then referred the issue to the NEC Mining Industry for conciliation. The parties did not settle and the matter was subsequently referred for arbitration. The Appellant was not satisfied with the decision of the Arbitrator and therefore appealed to this Court.

PRELIMINARY POINTS

During the court proceedings, the Respondent raised two preliminary issues regarding grounds 1 and 2. The Respondent explained that the Appellant initially presented five grounds of appeal, but withdrew ground 1, leaving four grounds. The Respondent pointed out that grounds 2 and 3 argued that SI 15 of 2006 did not apply to the case, as neither the Appellant nor the Respondent were members of the NEC for the Mining Industry. The Respondent submitted that, in ground 2, the Appellant was suggesting that the NEC for the Mining Industry did not have jurisdiction over the matter. Regarding ground 3, the Respondent highlighted that the Appellant also emphasized the point that the Respondent was not under the jurisdiction of the NEC for the Mining Industry, making these grounds not appealable, but rather grounds for review.

Respondent made reference to Section 92EE of the Labour Act 28:01 which deals with grounds of review by Labour Court and it states that

“(1) Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection with this Act may be brought on review before the Labour Court shall be—

(a) absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned.”

The Respondent stated that the Appellant ought to have proceeded by way of review and not appeal.

Furthermore, Respondent referred to page 8 of the Arbitration award on the terms of reference. He referred to the first term of reference, which was whether or not the matter fell within the jurisdiction of the Mining Council for the Mining Industry. Respondent submitted that it therefore follows that such a finding was not made that the Appellant fell under the jurisdiction of the NEC for the Mining Industry and if ever the Appellant felt that the NEC for Mining Industry lacked jurisdiction at that particular time he ought to have proceeded by way of review.

In response Appellant said that the Respondent argued as a preliminary matter that the Appellant's grounds of appeal did not present legal questions. In response, the Appellant contended that the grounds raised were indeed points of law. He further asserted that for a ground of appeal to be valid, it must challenge the lower court's findings on a legal point or claim misdirection or irrationality in its factual conclusions. The appellant referred to the case of Chenga vs Chikadayo and others SC 07/23 where it was stated that:

“It is trite that an appellate court will not interfere with a decision of a trial court based on findings of fact unless there is a clear misdirection or the decision reached is irrational.”

The Appellant argued that he had raised a case of gross misdirection, making it a valid ground of appeal on a point of law. He pointed out that, despite the facts being clear, the Honourable Arbitrator concluded that the Respondent was employed by the Appellant in the mining industry while simultaneously determining that the Respondent was not employed by Laryscope Healthcare (Pvt) Ltd. However, the mine the Respondent was guarding belonged to Laryscope (Pvt) Ltd, not the Appellant.

The Court dismissed the points in limine as the decision was made on the merits, and the decision is to be appealed. The matter proceeded to be heard on the merits.

COMMON CAUSE

It was undisputed that the Appellant was a sister company to Laryscope Health Pvt Ltd and engaged in mining operations, making it subject to the NEC for the Mining Industry. It was also agreed that the Appellant operated within the mining sector and that the Respondent performed security duties at the Appellant's mine. Furthermore, it was agreed that the Arbitrator had determined that an incorrect code of conduct had been applied and that the Respondent should have been charged under the NEC for the Mining Industry. Since the Appellant had applied a wrong code of conduct, it was also agreed that that rendered the proceedings null and void. Therefore, the Arbitrator should not have proceeded beyond that point.

ANALYSIS

After considering the arguments from both parties, the Court held that since the Arbitrator had determined that the wrong code of conduct was applied, he should have stopped at that point. Proceeding further would render the matter void and legally null. In the case of The Garrat Trust vs Creative Credit (Private) Limited SC 146/21 Bhunu JA as he then was referred the case of  Macfoy vs United Africa Co Ltd, 1961 3 ALL ER 119 on page 1172 as Lord DENNING observed that:

“If an act is void, then, it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of court for it to be set aside. It is automatically null and void without more ado, although it is sometimes more convenient to have the court declare it to be so.

Bhunu JA as he then was had this to emphasise “…. every proceeding which is founded on it is also bad. You cannot put something on nothing and expect it to stay there. It will collapse.” Therefore, when the Arbitrator established that the proceedings in terms of the Code other than Mining was a nullity, he ought to have dismissed the appeal as it was a legal nullity. He should not have proceeded to determine the matter further as he did.

Based on the above assertion, the Court upheld the appeal

DISPOSITION

After having looked at both parties’ arguments before this court, it is ordered that:

The appeal be and is hereby upheld.

The arbitrator's ruling be and is hereby set aside and replaced as below.

The employee was unfairly dismissed.

The employee's conviction be and is hereby aside.

The employee be and is hereby reinstated to the point of suspension.

The employer may proceed, if it so wishes, with disciplinary proceedings and shall complete the same within thirty days of this order or such further time as may, on good cause shown, be granted.

If the employer does not proceed with the disciplinary proceedings as prescribed, it shall reinstate the employee without loss of salary and benefits from the date of suspension.

If reinstatement as above is no longer possible, the employer shall pay damages in lieu thereof, the quantum of which may be agreed between the parties, failing which agreement, either party may approach this court for quantification thereof.

Each party shall bear its costs.