GEC Zimbabwe (Pvt) Ltd v Shadreck Matambanadzo & William Kandiyero

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/534/16
HELD AT HARARE
13 JULY 2016
CASE NO
JUDGMENT NO LC/H/534/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/534/16

HELD AT HARARE 13 JULY 2016				CASE NO LC/H/473/13

& 9 SEPTEMBER 2016

In the matter between:

GEC ZIMBABWE (PVT) LTD						Appellant

And

SHADRECK MATAMBANADZO

& WILLAIM KANDIYERO						Respondents

Before The Honourable Hove, J

For Appellant			C Z Chikara (Legal Practitioner)

For Respondents		P Tichaona (NEWU)

HOVE J:

This is an appeal from a decision of a labour officer.

At the hearing of the matter before me, a point in imine was taken by the respondent who argued that the matter was never improperly before the arbitrator.

Reliance for this proposition was placed on the provisions of 101 (5) of the Act which provides as follows;

“notwithstanding this part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.”

It is not in dispute that the proceedings were the subject of proceedings under an employment code.  But the employee argued that the labour officer had jurisdiction over the matter by virtue of section 101 (6) of the Labour Act which provides that;

“If a matter is not determined within 30 days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section 93.”

The arbitrator agreed with the employee and held that he has jurisdiction over the matter.

The employer however appealed to this court over the dismissal of the preliminary point and raised it again before this court.

The said section 101 (5) is indeed subject to section 101 (6).  While a labour officer has no jurisdiction over matters whose proceedings are governed in terms of an employment code, the circumstances outlined in subsection (6) can confer the labour officer with jurisdiction.  Both parties accept this legal position.  The dispute is centred on whether or not the circumstances outlined in subsection (6) prevailed in this case.  That is whether or not the matter had not been determined within 30 days of the date of notification referred to in paragraph (e) of subsection (3).

It is common cause that the matter had not been determined to finality in terms of the employment code.  By the time the employee approached the labour officer purportedly in terms of S.101 (6) the matter was pending before the appellate body in terms of the employment code.

The employer argued that the determination referred to in section 101 (6) is not the final determination, but the initial determination before the disciplinary authority.

I agree with this interpretation of section 101 (6),  that the determination referred to is the initial determination.  The subsection does not say “if the matter is not determined to finality.”  It just refers to determination.  The decision that was made by the initial hearing body was a determination.  So at that stage, the matter could not be referred to a labour officer in terms of section 101 (6).

The section does not say that the labour officer shall have jurisdiction if the matter is not heard and completed within 30 days.

The employee may have suffered prejudice by the failure of the disciplinary committee or the appellate body to complete the disciplinary proceedings within 14 days in terms of the National Employment Code but the remedy is not to give section 101 (6) an interpretation that goes beyond the ordinary grammatical meaning of the section.

The primary rule of interpretation is to give a statute its ordinary grammatical meaning unless doing so would result in absurdity.  The interpretation process therefore begins with the legislation concerned and the ordinary meaning must be attached to the words in that legislation.  This is the primary rule of literal interpretation.

The literal meaning of “if a matter is not determined within 30 days” means exactly that, a matter must be determined.  Determined means to fix or settle (Webster’s concise edition English dictionary).  So when the disciplinary committee gave its determination, it settled the matter.  If the parties were not happy, either of the parties could appeal to the appellate body but the matter would have been determined.

I am thus unable to agree with the employee in this matter.

In the result, the preliminary point is upheld, the arbitrator had no jurisdiction.

Dhlakama B Attorneys, appellant’s legal practitioners