Knowledge Siriva v Zimbabwe National Water Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/50/2020
HARARE, 15 NOVEMBER 2019
CASE NO. LC/H/141/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/50/2020

HARARE, 15 NOVEMBER 2019		     	     CASE NO. LC/H/141/19 (REV)

AND 24 JANUARY, 2020

In the matter between:-

KNOWLEDGE SIRIVA								Appellant

AND

ZIMBABWE NATIONAL WATER AUTHORITY				Respondent

Before The Honorable Judges: Hove J

Chivizhe J

For Appellant				Munyaradzi Gwisai & Partners (Legal Practitioner)

For Respondent			In Person

HOVE J:

The Appellant in casu filed this appeal together with an application for review. He was employed by the Respondent and dismissed after being found guilty of an act of misconduct.

The appellant had raised a preliminary point to the effect that the Respondent’s heads had been filed out of time. Though the heads were indeed filed out of time, the parties agreed not to persist with the preliminary issue for purposes of facilitating an expeditious resolution of the dispute on the merits of the matter.

The application for condonation for late filing of the heads was accordingly granted by consent of the parties.

The appellant pointed out that the proceedings were a combined appeal and review which had been filed simultaneously in terms of Rule 19 of the Labour Court Rules, 2017.

The court raised mero motu two issues which had not been raised by the Respondent but which the court felt were important and the court could raise the two issues.

Firstly, the court questioned if the grounds for review which had been raised by the applicant/appellant were proper grounds for review in view of the provisions of the Labour Act [Chapter 28:01] (the act), which restricted the grounds for review to those listed in terms of the act. Secondly, the court asked whether it was competent for a litigant in an application for review to seek reinstatement as a remedy?.

Upon considering that the ground for review did not sit well considering the 3 grounds for review outlined in terms of the Act, and also the court’s queries on the availability of the remedy sought in a review application, the applicant decided to withdraw its application for review.

The grounds for review having been withdrawn, the matter proceeded on the basis of the merits of the appeal.

The issue

The issue that fell for determination was whether or not the disciplinary committee and the appeals committee which upheld the disciplinary committee’s determination on the preliminary point raised by the appellant (that the use of the

national code was wrong in view of the fact that the employer had a registered code of conduct.) was right.

It was common cause that the employer had a registered code of conduct. It was again common cause that the disciplinary committee had proceeded in terms of SI 15/2006 (the national code). It is against these agreed facts that the appellant raised its first ground of appeal that the appeals authority grossly erred and seriously misdirected itself at law in upholding the use by the Disciplinary Committee, of the national code in circumstances where a registered work place code of conduct existed.

The above was the only issue argued by both parties and depending on the court’s decision, the parties may proceed to argue the other grounds of appeal.

Whether or not it was a serious misdirection to use the national code when there was a registered code of conduct for the undertaking or the work place?.

The employee argued that there is a registered code of conduct at its work place as provided for in terms of section 101 of the Act. The law provides that where there is a registered code of conduct, employees would be unfairly dismissed if it cannot be shown that they had been dismissed in terms of the registered code of conduct.

The employer in casu, had used the Labour (National Employment Code of Conduct) Regulations 2006 (the National code) in conducting the disciplinary proceedings against the employee.

The employee argued that the use of the National code was unlawful. Since a wrong code was used the committee lacked jurisdiction and the proceedings were a nullity.

The employer on the other hand argued that the employee had waived his right to be disciplined under the work place Registered Code of Conduct and he could now not complain that proceedings had been conducted under the National Code. Further, it was argued by the employer that the proceedings had been fairly conducted and principles of natural justice were observed. Finally, the employer argued in its heads of arguments that there was no irregularity in the manner the proceedings had been conducted but even if there was an irregularity, it is now trite that not every irregularity has the effect of vitiating proceedings. There is need to show that the party complaining was prejudiced by the irregularity complained of.

The starting point as argued on behalf of the employee is section 12B of the Act which provides that:

“12. An employee is unfairly dismissed-

if subject to subsection (3) the employer fails to show that he dismissed the employee in terms of an employment code; or

in the absence of an employment code the employer shall comply with the mode code made in terms of section 101(a)”.

The act thus provides that the use of the national code shall be in the absence of an employment code.

(Underlining for emphasis)

The Regulations that create the national code also provides in section 5 as follows;

“5.	Termination of contract of employment

No employer shall terminate a contract of employment with an employee unless-

The termination is done in terms of an employment code which is registered in terms of section 101(1) of the Act: or

In the absence of the registered code of conduct mentioned in (a) the termination in terms of the National Employment Code of Conduct provided for under these regulations; or

………………………..

………………………”

Underlining for emphasis.

Again the regulations make the use of the national code subject to the absence of a registered code of conduct.

It is clear therefore that the National Code can only be used in instances where there is no work place employment code of conduct.

The legislature has thus made the use of the national code subject to the absence of an employment code of conduct. Parties or persons cannot chose to be bound or not to be bound by provisions of law. An agreement that does not comply

with the law is not enforceable at law. I say this because the employer’s argument is that the employee waived the right to have his proceedings done in terms of the employment code. That this is the correct factual position is arguable, even if the

employee had agreed to waive his right to have the proceedings done in terms of the employment code, this would have been a nullity as one cannot waive the law.

The employer’s argument is that when the employment code was registered it was agreed in the work’s council that the use of the employment code be suspended while there was to be further training in the use of the code, this was unlawful. The trite legal position is that where there is a registered employment code, disciplinary proceedings cannot be in terms of the national code.

In the case of Chidziva & others v Zimbabwe Iron Steel company Ltd 1997 (2) ZLR 368(S), the court stated that waiver extinguishes the legal right waived. How can a person extinguish the provisions of law?. This simply is not an appropriate case to raise in support of the employer’s position.

The employer argues that the employee cannot complain since proceedings were done fairly and all principles of natural justice were followed. It is not possible to act fairly and in a just manner if you are to act outside the provisions of law. The employee was well within his rights to complain right from the word go that proceedings ought to have been in terms of the employment code of conduct.

We also rejected the argument that the proceedings could not be vitiated since the employee had not demonstrated that he had suffered any prejudice occasioned by the use of the National code.

The proceedings were unlawful. This was not an irregularity in the conduct of proceedings that would otherwise be lawful. The irregularity, if one was to term it such would be one that goes to the very root of the employment contract, for parties to an

employment contract are to act in accordance with the provisions of law. The case of Nyahuma v Barclays Bank (Pvt) Ltd 2005 (2) ZLR 43.5 is clearly distinguishable for in that case, the Bank had not flauted the provisions of law.

The agreement that the employer is seeking to rely on was that there would be further training since the code had just been registered. Its use was to be suspended until 1 January 2019, Page 179 of the record reads as follows on the relevant paragraph (paragraph marked 2)

“Code of Conduct

Management advised that the code of conduct was approved on the 12th of April, 2018 and it is ready for use. Due to fact that there was need for training and reproduction of the code of conduct document, the council agreed that the use of the code be suspended until 1st of January 2019. The period from June 2018 to November 2018, would be reserved for the training of workers”.

The code had been registered in April 2018, nothing was done until June 2018, when the Works Council wanted to waive the operation of law as they train from June 2018 to November 2018. The registered code would came into effect on 01 January 2019. Once the code had been registered, it came into effect and the works council could not waive the provisions of law and set their own date of effectiveness. The parties could not agree to an illegality.

But, even if the agreement could somehow be said to be lawful, the employer did not even comply with its terms. They had agreed to waive the operation of the code until 1st of January 2019. The disciplinary proceedings commenced in March 2019 way

after the agreed date of 1st January 2019. The appeals committee failed to appreciate its responsibility of first complying with the agreement which they seek to rely on. They appear to have treated the issue as a non-event or one of no consequences in their rush to proceed to the merits of the matter. The appeals body was obliged to consider the alleged non-compliance with the provision of a statute instead of paying cursory attention to it. The appeals body misdirected itself in failing to find that there was a registered code of conduct, disciplinary proceedings had to be in terms of the registered employment code of conduct by operation of law. It was not a matter left by the legislature in the Works council’s discretion.

There must be certainty, different work places cannot each consider convenient dates to bring into effect the provisions of their codes of conduct when the law prescribes that once the code has been registered it comes into effect. This would create chaos and uncertainity.

Finally, the courts have had occasion in the past to deal with a case that is on all fours with this case. In the case of Chikomba Rural District Council v Herbert Pasipanodya SC 26/2012 the Supreme Court made the finding that it is wrong to use the national code where there is a registered code of conduct.

In the result, the proceedings conducted in terms of the national code were a nullity and must be set aside.

The following order is in place:-

Order

1) 	The appeal succeeds with costs.

2) 	The proceedings in terms of the national code be and are hereby set aside. The appellant is reinstated into his position with no loss of salary or benefits from the date of suspension.

3)	Should the employer still wish to proceed with the disciplinary proceedings, it should proceed in terms of the governing provisions of law.

_________________________				________________________

Hove J								Chivizhe J………I agree