Innscor Africa Limited v Leonard Chibaya

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/61/21
HELD AT HARARE ON 27th MAY, 2021
CASE NO.
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THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/61/21

HELD AT HARARE ON 27th MAY, 2021                CASE NO. LC/H/197/19

AND 4TH JUNE, 2021

In the matter between:-

INNSCOR AFRICA LIMITED						Appellant

And

LEONARD CHIBAYA							Respondent

Before the Honourable Mhuri, J.

For Appellant		:	Mr. Z. Lunga (Legal Practitioner)

For Respondent 	:	In Person

MHURI J.

This is an appeal against an Arbitral Award.

This appeal was set down for hearing on the 19th May, 2021.  On this date, the appeal was postponed to the 27th May, 2021 at the Court’s instance after the Court had observed that, the matter that gave rise to the arbitral award was a matter which had been dealt with and determined in terms of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 (THE NATIONAL CODE).  This position was accepted by both parties.

In view of that, the Court then brought to the attention of the parties, the Supreme Court cases of:-

MISHECK MABEZA

VS

SANDVIK MINING

CONSTRUCTION (PRIVATE) LIMITED   SC 91/19

and

1.      TAFADZWA M. SAKAROMBE N.O

2.      WONDER SIMUKA

VS

MONTANA CASWELL MEATS (PRIVATE) LIMITED SC 44/20

and directed them to read the cases and thereafter make submissions on the way forward regarding this appeal.

The parties submissions on the way forward were these:-

APPELLANT:

(a)	that the Court sets aside the conciliation and arbitration  proceedings as both the Labour Officer and Arbitrator do not have appellate and review jurisdiction when  these proceedings are set aside, it would mean the Respondent should appeal to the Labour Court in terms of Section 92D of the Labour Act.

alternatively;

(b)	since the matter has been in Court for a long time (close to 6 years) and the setting aside means Respondent has to start afresh, the Court hears the matter on its merits despite the irregularities.

RESPONDENT:

He was in agreement with the appellant’s legal practitioner’s submissions.  He submitted however that the decision of the Arbitrator be set aside and then he approaches this Court by way of an appeal.  His prayer was that to avoid long delays, the matter be brought directly to me so that it can be finalised as soon as possible.

Respondent submitted that in bringing the matter to finality he had no problems in taking either route.

The background of this case, which is not disputed is that the appellant instituted proceedings against Respondent in terms of Section (4) of the National  Code and Respondent was found guilty and dismissed from employment.  Aggrieved, Respondent noted an appeal to the Appellant’s Appeals Officer who upheld the dismissal.  Still aggrieved, Respondent then referred his matter to the Labour Officer as an appeal.  In turn, the Labour Officer issued a certificate of no settlement and consequently referred the matter to arbitration and the Arbitrator ruled in favour of Respondent.

Aggrieved by the Arbitrator’s decision, Appellant noted this appeal to this Court.

The two Supreme Court cases cited above clearly state the legal position of matters dealt with and determined in terms of the National Code.  The position is that a Labour Officer and consequently an Arbitrator have no jurisdiction to hear and determine a matter dealt with and determined in terms of a Code of Conduct.  The Labour Officer’s and subsequent proceedings would be a nullity.

In casu therefore since the Labour Officer had no jurisdiction to entertain Respondent’s appeal it follows that the Arbitrator also did not have jurisdiction to entertain the matter.  As such their proceedings are a nullity the result of which is that the Appellant’s appeal to this Court is improper.

In that regard, I agree with the Parties first option that the Labour Officer’s and Arbitrator’s proceedings be set aside and it be up to the Respondent to file an appeal to this Court in terms of Section 92D of the Labour Act [Chapter 28:01] This will however be subject to the requisite proper procedures being followed as the intended appeal would be out of time.

I would not grant Respondent’s prayer that his appeal be brought directly to me so as to ensure finality.  This can be achieved by any other Judge to whom the appeal will be allocated.

In the result, the following order is made:

that the appeal by Appellant be and is hereby struck off as it is improperly before the Court.

the proceedings by the Labour Officer and the Arbitrator be and are hereby set aside as being a nullity.

Respondent is at liberty to institute appeal proceedings to this Court in a procedurally correct manner if he is still inclined to do so.

LUNGA ATTORNEYS – Appellant’s legal practitioners