Innscor Africa Limited v Felix Ncube

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/729/16
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/729/16

CASE NO. LC/H/32/16

HELD AT HARARE

ON 3 NOVEMBER 2016 & 18 NOVEMBER 2016

BEFORE THE HON. MR. JUSTICE L.M. MURASI

IN THE MATTER BETWEEN:-

INNSCOR AFRICA LIMITED				APPELLANT

AND

FELIX NCUBE						RESPONDENT

For Appellant						Ms. C. Kasiyo

For Respondent						Ms. L.S. Ncube

MURASI J.,

This is an appeal against the decision of the arbitrator. The facts in this matter are common cause and can be summarised in the following manner.

Respondent was employed by the appellant at one of its branches. Respondent lodged a grievance with the appellant following what he considered to be an abuse of office by one of appellant’s managers. Meanwhile, appellant had taken a decision to charge the respondent with acts of misconduct which had taken place prior to the commission of the alleged grievance. Respondent was summoned by appellant and duly attended in the company of his legal practitioner. Respondent, through the legal practitioner, informed the appellant that he was not going to attend the hearing until his grievance had been attended to. Appellant informed the respondent that the hearing would proceed in his absence if he chose not to attend. Respondent’s legal practitioners wrote to appellant confirming his non-attendance at the hearing. Appellant proceeded with the hearing and respondent was found guilty and was dismissed. In the letter addressed to respondent informing him of his dismissal, respondent was advised to appeal to the Appeals Officer within the prescribed period in terms of the Code of Conduct.

Respondent later approached the Labour Officer and lodged his complaint. Conciliation was attempted but failed. The matter was referred to arbitration. The Terms of Reference placed before the arbitrator were as follows:

a. Whether or not the respondent (claimant) was fairly dismissed.

b. Whether or not the appellant (respondent) committed an unfair labour practice against the respondent (claimant)

c. To determine the appropriate remedy.

The arbitrator found in favour of the respondent. The arbitrator ordered the payment of damages in lieu of reinstatement as he reasoned that the working relationship between the two parties had ‘irretrievably broken’. Appellant is dissatisfied with this decision and approached this Court for relief.

Ms. Kasiyo, for appellant, raised the issue that respondent had not exhausted the internal procedures available in terms of the Code of Conduct and thus the matter was improperly before the arbitrator. To this end it was argued that the arbitrator should have declined the respondent any audience as the matter was improperly before her. She further submitted that there was no connection between the alleged grievance that respondent had filed with the appellant and the charges that had been levelled against him. Ms. Kasiyo stated that the fact that appellant proceeded to charge appellant a day after he had lodged his complaint could be taken as a mere coincidence as the offences had been allegedly committed in March and April 2015. Appellant further argued that respondent was supposed to make an appeal to the Appeals Officer in terms of the Code of Conduct and that case law showed that it was improper for the arbitrator to assume jurisdiction in the circumstances.

Ms. Ncube, for the respondent, stated that she largely abided by the documents filed of record. She submitted that even if it was trite that a litigant should follow the procedure as dictated by the Code of Conduct, there were circumstances which did not permit this as was the present case. She argued that the appellant was supposed to have deliberated on the grievance filed by the respondent before proceeding to summon him for a disciplinary hearing. Ms. Ncube further submitted that it was difficult for the respondent to appeal as this would have come to nought given the environment of bias which was prevailing against the respondent. It was argued that the circumstances justified an abandonment of utilising the provisions of section eight of the Code of Conduct.

The issue to be determined first is whether the arbitrator had jurisdiction to entertain the matter. Respondent was charged in terms of the National Employment Code of Conduct, that is, Statutory Instrument 15 of 2006. On the date of the hearing, respondent’s legal practitioner raised a preliminary point to the effect that appellant could not proceed with the hearing without first dealing with the grievance. After deliberations, this preliminary point was dismissed and respondent informed that the hearing would proceed. Respondent was convicted and dismissed. The Code provides that after conviction, an aggrieved party should appeal in terms of section eight. Section 8(6) provides:

“(6) 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 (of) receipt of such decision.”

A reading of the above provision leads to the following conclusion. Where the Code is applied and there is provision of an appeal forum, a litigant should utilise that forum. If the litigant is dissatisfied with the decision of that appellate forum, then he/she may take the matter up with the offices mentioned in the sub-section. This pre-supposes that for the litigant to approach the Labour Officer or Designated Agent, there must be a decision from the appellate body. In casu, was there a decision from an appellate body? The answer is obviously in the negative. The following inquiry would be, what were the legal provisions which clothed the Labour Officer and, by extension, the arbitrator, with jurisdiction? None was quoted by the respondent except to state that the circumstances of the case precluded the respondent from utilising the provisions of the law. This is a clear concession that the respondent disregarded the provisions of the law when he approached the Labour Officer and subsequently the arbitrator. To this end I agree with the submissions of the appellant where she quotes the case of Barclays Bank of Zimbabwe vs Shepherd Ndiraya SC 72/2005. In that case it was held that an appellate court can only hear an appeal when there is a decision which is appealable. Respondent had not attended the hearing. He had been informed of his dismissal and advised to appeal if he so wished. Respondent had not appealed. Respondent could therefore not purport to approach the Labour Officer in terms of section 8(6) of the Code of Conduct as there was no decision from an appellate body. It was not competent to refer the matter in the circumstances. The Labour Officer did not have jurisdiction and, by extension, the arbitrator.

A second issue also arises out of the proceedings. Respondent had refused to attend the hearing. The matter was deliberated in his absence. It was therefore a default judgment. Was the arbitrator correct in deliberating on the merits of a default judgment? Hardly. The arbitrator did not exercise his mind in this respect. Respondent had taken a calculated risk in not attending and by so-doing had waived his right to be heard. (See Robert Dombodzvuku & Anor vs CMED (Pvt) Ltd SC 14/11.) What is the effect of a default judgment? This legal road has been travelled frequently by the superior courts. In Zvinavashe vs Ndlovu SC 40/06, GWAUNZA JA had this to say:

“The defining feature or essence of a judgment granted after a party fails to appear is the ‘default’ of the absent party, that is, his failure to do what he ought to have done. In casu, what the appellant failed to do was to appear and prosecute the application. Hence a judgment by default has been defined as one obtained by ‘non-resistance’ “

What is evident is that respondent was dismissed in absentia. Respondent did not make any submissions before the disciplinary committee. It is therefore surprising that the arbitrator went on to deal with the matter on the merits when respondent’s side of the story had not been recorded during the disciplinary committee hearing. The arbitrator clearly erred in this regard.  His decision cannot be allowed to stand. In the circumstances, it will not be necessary to deal with the other grounds of appeal.

In the result and for the aforestated reasons the appeal is accordingly allowed with no order as to costs.

LUNGA GONESE ATTORNEYS-			Appellant’s legal practitioners

MABUNDU LAW CHAMBERS-			Respondent’s legal practitioners