Farai Katsande v Infrastructure Development Bank of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/260/2016
HARARE, 1 MARCH 2016 &
13 MAY 2016
CASE NO LC/H/950/2014
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/260/2016

HARARE, 1 MARCH 2016 &			                   CASE NO LC/H/950/2014

13 MAY 2016

In the matter between

FARAI KATSANDE								APPELLANT

Versus

INFRASTRUCTURE DEVELOPMENT 					RESPONDENT

BANK OF ZIMBABWE

Before the Honourable E T Muchawa J

For the Appellant	C Kwaramba  (Legal Practitioner)

For the Respondent     A Moyo  (Legal Practitioner)

MUCHAWA J:

This is an appeal against an arbitral award in which the arbitrator dismissed the matter before him for want of jurisdiction.

The appellant is a former employee of the respondent. He was employed as a senior loans officer when, on 14 October 2013, he was charged of misconduct in terms of the Labour (National Employment Code of Conduct) Regulations, 2006 S I 15 of 2006 (“the National Model Code”).

The charges preferred against the appellant were of an act, conduct or omission inconsistent with the fulfilment of the express or implied conditions or his contract of employment and wilful disobedience to a lawful order. It was alleged that the appellant had unilaterally absented himself from his work place from 16 September to 20 September 2013 despite the employer’s refusal to grant him leave of absence. It was further alleged that the appellant had refused to write a report relating to the absence when he was asked to do so.

Following a disciplinary hearing, the appellant was found guilty and dismissed from employment. He was specifically advised that if he wished to appeal, he could do so at the Labour Court as the respondent had no internal appeals structure.

There was no appeal lodged with the Labour Court. Instead, the appellant referred the matter to a labour officer on allegations of an unfair labour practice. Failing conciliation the matter was referred for compulsory arbitration leading to the dismissal for want of jurisdiction which is the subject of the appeal before me.

The grounds of appeal are:

The learned arbitrator grossly erred on a point of law when it determined that it had no jurisdiction to entertain the matter. It so erred in that it misinterpreted section 8 (6) of S I 15 of 2006. The correct interpretation is that where there is no internal appeal the employee must refer the matter.

The learned arbitrator also misdirected itself by failing to take into account the effect of section 94 of the Labour Act which gives any Labour Officer jurisdiction to entertain any unfair labour practice or labour dispute which comes to his attention within two years of occurrence.

I proceed to deal with these issues below.

Ground 1  - Interpretation of section 8 (6) of Statutory Instrument 15 of 2006

The appellant argued that the arbitrator’s interpretation of section 8 (6) of Statutory Instrument 15 of 2006 was wrong.

Section 8 (6) provides as follows:

“A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the appeals officer or appeals committee, as the case may be, may refer the case to a labour officer or an Employment Council Agent, as the case may be, within seven working days or receipt of such decision.”

Whereas the appellant argues that this provision allows a party aggrieved by the decision of his employer, to refer it to a labour officer, the respondent on the other hand contends that such party cannot refer the dispute but must appeal to the Labour Court.

The parties rely on contradictory judgments of the Labour Court. The appellant relies on the case of Nesta Manyuchi v Southern African Aids Trust LC/H/462/13 and City of Harare v Esau Zhou LC/H/279/11 in which it was held that because no appeal authority existed in terms of the National Employment Code, the matters should have been referred to the labour officer.

On the other hand, the respondent has a longer line of cases. These are Kingdom Bank Limited v Willard Murenje LC/JDT/MT/107/12, CMED (Pvt) Ltd v Calisto Maniki LC/H/85/2014, Capital Bank v Farai Mabasha LC/H/835/2014, Maranatha Ferrochrome (Pvt) Ltd v Allen Nani LC/H/520/14. These cases have held that S I 15 of 2006 is a Code of Conduct as envisaged by section 101 of the Labour Act and that a labour officer is precluded from dealing with matters referred such as this one, in terms of section 101 (5) of the Act. The correct recourse available is said to be, to appeal in terms of section 92D of the Act.

In my interpretation of this section, I wish to give the words in the section in question their ordinary sense. I am guided in my approach by the case of Zimbabwe Electoral Commission (ZEC) & The Chairperson of the ZEC v The Commissioner General ZRP & 19 Ors CCZ 3/14. It was held:

“Various rules have been formulated to assist the court in the interpretation of statutes. One of these often referred to as the cardinal rule of construction, is the literal rule which requires that the words of a statute must be given their ordinary literal and grammatical meaning.

However the object of such interpretation or construction is to ascertain the intention of the legislature in enacting the provision concerned and even where the words employed in the statute are clear and unambiguous, a court may depart from the ordinary effect of the words in order to remove an absurdity and to give effect to the true intention of the legislature ….”.

Further, I wish to read s 8 (6) within its context so as to ascertain what the intention of the legislature is. (See Zimbabwe Revenue Authority & Anor v Murowa Diamonds (Pvt) Ltd SC 41-09).

Section 8 of SI 15 of 2006 generally deals with appeals. Section 8 (1) gives the employer the option to set up an internal appeal structure. Such internal appeal structure shall be limited to no more than two appeals authorities. (Section 8(2).

Section 8 (3) provides as follows:

“A person or party who is aggrieved by a decision made in terms of section (2) may, in writing, note an appeal within seven working days with the appeals officer or appeals committee.”

This section provides the appeal procedure where an internal appeal structure exists. In the same manner, section 8 (4) provides for the option of a formal hearing or a decision based on the record. Section 8 (5) sets the time within which such internal appeal should be determined as fourteen working days.

Section 8 (6), in my opinion, provides for the recourse available to a party whose appeal is handled in terms of the internal appeal structure and is aggrieved by the decision or manner in which the appeal is handled at the instance of the employer, appeals officer or appeals committee. Such a party may refer the case to a labour officer or an employment council agent who shall process the matter in terms of section 93 of the Labour Act.

I align myself with the reasoning in the judgments cited by the respondent.

It could not have been the intention of the legislature to provide through subsidiary legislation in SI 15 of 2006, for a provision contrary to the principal legislation. Section 101 (5) of the Labour Act specifically precludes the involvement of the labour officer in any dispute or matter which is liable to be the subject of proceedings under an employment code.

Secondly section 92 D of the Labour Act specifically provides as follows:

“A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court.”

Statutory Instrument 15 of 2006 is an employment Code made under section 101 of the Labour Act.

In any event, the appellant did not demonstrate how his complaint constituted an unfair labour practice as defined in terms of section 8 of the Labour Act.

I accordingly find that the arbitrator did not err in declining to exercise jurisdiction over this matter.

Ground 2 - Effect of section 94 of Labour Act on the jurisdiction of a Labour Officer

The appellant relies on section 98 (9) of the Labour Act to argue that an arbitrator has the same powers as the Labour Court in hearing and determining any dispute. It is further argued that once a dispute is properly referred to a labour officer in terms of section 93 and 94 of the Act, the arbitrator cannot refuse to exercise jurisdiction.

I believe that the reliance on section 94 of the Act is misplaced. I find favour with Mr Moyo’s argument that this section is irrelevant to the issue at hand. It deals with the subject of prescription thus:

“94 Prescription of disputes

(1)(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.”

What this means is that a dispute or unfair labour practice may very well be brought within the two year period and may be found not to have prescribed. That does not, however, resolve the question of jurisdiction.

The appellant, by relying on section 98 (9) which provides:

“In hearing and determining any dispute an arbitrator shall have the same powers as the Labour Court;”

seems to me to be confusing the question of jurisdiction with that of powers exercisable where jurisdiction is available.

The section seems to deal with a situation where jurisdiction is already established and an arbitrator is hearing and determining a matter. In such a case, then the arbitrator has the same powers as the Labour Court.

Consequently there is no merit in this appeal. I accordingly dismiss it with costs.

Mbidzo, Muchadehama & Makoni, appellant’s legal practitioners

Kantor & Immerman, respondent’s legal practitioners