Farai Rimbi v Prochem (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/100/13
HELD AT HARARE 12TH MARCH, 2013
CASE NO LC/H/382/12
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/100/13

HELD AT HARARE 12TH MARCH, 2013	      CASE NO LC/H/382/12

In the matter between:-

FARAI RIMBI		     			Appellant

And

PROCHEM (PVT) LTD.				Respondent

Before The Honourable G Mhuri, Senior President

For Appellant:  Mr Pendei (National Organiser ZCP&WU)

For Respondent: Mr G. Sithole (Legal Practitioner)

MHURI, G:

Appellant was dismissed from Respondent’s employment for flouting provisions of the Respondent’s Code of Conduct.

The disciplinary proceedings that led to the dismissal were conducted in terms of Varichem Laboratories (Pvt) Ltd. Code of Conduct (THE CODE) which was duly registered by the then Ministry of Public Service, Labour and Social Welfare on the 17th June 1994.  On the 6th April 2000 the Ministry approved and registered the variation of scope of the Code to include:-

Greenwood Pharmacies

Prochem

Vari-Freight

In 2002, Section 101 which provided for the application and registration of Codes by Works Councils was amended. Section 35 of the Labour Relations Amendment Act No. 17 of 2002 repealed subsection (1) thereto and substituted it with provisions which put new obligations on the Employment and Works Councils vis-a-vis the registration of Codes of Conduct.

Section 101(1) of the Labour Relations Act [CAP 28:01] 1996 read as follows;

“(1)	An employment council or works council may apply in the manner prescribed to the Registrar to register an employment code of conduct that shall be binding in respect of a particular industry, undertaking or workplace:

Provided that –

(ii)	a works council may apply for the registration of code notwithstanding that an employment council has applied or proposes to apply for the registration of a code governing employers and employees represented by the works council

(ii) where more than one code is registered pursuant to proviso (i)	the code registered on application by the works council shall prevail and be binding in respect of the particular workplace, undertaking or industry for which it is registered”. (emphasis added)

In terms of this provision, even where an employment council had registered its Code, the Works Council Code duly registered would be the Code to be used.

Section 35 of the Amendment 2002 which  is incorporated in the current consolidated Labour Act reads as follows:-

An employment council or, subject to subsections (1a),(1b) and (1c), a works council, may apply in the manner prescribed to the Registrar to register an employment code of conduct that shall be binding in respect of the industry, undertaking or workplace to which it relates.

(1a)	where an employment council has registered a code governing employers and employees represented by it no works council may apply for the registration of a code in respect of any industry, undertaking or workplace represented by the employment council unless it first refers the Code to the employment council for its approval.

(1b) where a code is registered by a works council

in respect of any industry, undertaking or workplace represented by an employment council and the employment council subsequently registers its own code, the code registered by the employment council shall supercede that of the works council, unless the works council refers it to the employment council for approval.

(1c) ...................” (emphasis added)

Subsection 1(b) is very clear and unambiguous in its meaning.

In casu the Code used was registered by the Works Council and has been in operation since its registration.

It is common cause that in 2011 the employment council registered an industrial Code of Conduct – COLLECTIVE BARGAINING AGREEMENT: CHEMICAL AND FERTILISERS MANUFACTURING INDUSTRY S.I. 31/2011).

Respondent does not dispute that its operations are covered by the S.I. 31/2011. It follows therefore that Respondent’s Code was superceded by S.I. 31/2011 unless it was referred to the employment council for approval. Respondent submitted that it did not refer its Code for approval.

That being the case, Respondent was and is supposed to use S.I. 31/2011 in disciplining its employees. The use of its own Code which by operation of law was superceded by S.I. 31/2011 renders the proceedings conducted in terms of the Code a nullity. I agree with Appellant’s submission that if something is a nullity it cannot stand. These proceedings being a nullity cannot be allowed to stand.

Further even if Respondent’s submission that by participating in these proceedings without objection the proceedings are to be held valid I find that the proceedings suffer another fate. The Works Council that heard the initial proceedings was improperly constituted.

This point was properly conceded by Respondent. As the record shows the Works Council consisted of 4 management representatives and 2 worker representatives. This on its own rendered the proceedings voidable.

See: MADODA V TANGANDA TEA COMPANY LTD. 1999 (1) ZLR 374 (S)

in which the dismissal was held invalid because the disciplinary committee was improperly constituted as a result of the absence of two worker’s committee members.

“The absence of the two workers committee members from the disciplinary tribunal was a fatal irregularity which vitiated the proceedings”

per Sandura J.A. (as he then was).

The above comments apply with equal force to the present case.

Having found that the initial proceedings against Appellant were a nullity I find it not necessary to deal with the merits.

To that end this appeal shall succeed. Respondent shall reinstate Appellant to his original position and shall reinstitute fresh proceedings against Appellant it if is still so inclined using the correct Code S.I. 31/2011.

Accordingly it is ordered that:-

the appeal be and is hereby allowed

Respondent reinstates Appellant to his original position without loss of salary and benefits with effect from date of suspension.

Respondent is at liberty if it is still so inclined to reinstitute fresh proceedings against Appellant in terms of the Code S.I. 31/2011 which covers its operations.

Mushangwe & Company – Respondent’s Legal Practitioners