Leopard Rock v Edward Chikosi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/MC/2/2016
MUTARE, 26 MAY 2015
CASE NO. LC/MC/49/13
JUDGMENT NO. LC/MC/2/2016
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/MC/2/2016

MUTARE, 26 MAY 2015                         	CASE NO. LC/MC/49/13

AND 8 JANUARY, 2016

In the matter between:-

LEOPARD ROCK 			Appellant

AND

EDWARD CHIKOSI		Respondent

For Appellant :		 Mr T. Nyambirai (Legal Practitioner)

For Respondent:		 Mr. T.J Mafongoya  (Legal Practitioner)

CHIVIZHE, J

This is an appeal against an arbitral award handed down by the Honorable D MUdzengi on the 29th April, 2013.

The material background facts to the mater are as follows;

The Respondent was employed by the Appellant as a Front Office Manager. He was suspended from employment on the 31st of January, 2012 on charges of FRAUD. The allegations were that he had defrauded Respondent by debiting guest accounts with his house accounts expenses. This had resulted in prejudice of US$ 1 925.50. The Respondent was notified to appear for hearing to face a charge of FRAUD. The Notice of Hearing however did not refer to a section of the Code of Conduct. A hearing was held resulting in Respondent’s conviction on the charge. A penalty of dismissal from employment with effect from 7th of February, 2012 was consequently imposed. The Notice of Termination citied the section invoked as Section 111 point 6. The code of conduct provided for a right to appeal to the Managing Director. There is a dispute between the parties as to whether or not the Respondent noted the appeal. The matter is addressed fully below.

On the 5th of November, 2012 Respondent referred a complaint to the Labour Officer of an unfair dismissal. At conciliation Appellant raised the objection that Labour Officer had no jurisdiction to entertain the matter as an appeal against dismissal could only have been made to the Managing Director within two days in terms of the Code. The Labour Officer after failing to conciliate referred the matter to arbitration. The terms of reference for the Arbitrator were;

Whether or not the Labour Officer has jurisdiction to hear the matter.

Whether there was unfair dismissal based on procedural irregularities and substantive issues.

The appropriate remedy thereof”

At arbitration the Respondent then raised the point that the Appellant had dismissed him in terms of an unregistered code of conduct. The Appellant produced its code of conduct which it had been utilizing in the disciplinary proceedings. The Respondent then produced a code of conduct obtained from the Registrar of Labour in December 2012 which the Registrar of Labour stated was the only document in his custody which was therefore the registered code of conduct (copy of certificate provided)

The Arbitrator in his findings found that the Labour Officer and by extension himself had jurisdiction to deal with the matter. The two codes were different and that the Appellant had thus used the wrong code to discipline the Respondent. The Arbitrator then directed that the Respondent be reinstated without loss of salary and benefits and the Appellant could proceed to discipline Respondent using the proper code of conduct. In the alternative if reinstatement was no longer an option; the Appellant was to pay Respondent back pay from date of dismissal to the date of his award i.e. 28 April 2013 as well as damages in lieu of reinstatement. The parties were to approach to Arbitrator in the event of failure to agree on the quantum of damages. The Appellant was aggrieved by the award. Appellant noted the present appeal on the following grounds:

“Grounds of Appeal

The learned Arbitrator erred on a question of law by concluding that the Ministry of Labour had jurisdiction to handle the matter by wrongly concluding that what was merely before him was a challenge of the wrong Code of Conduct when the matter that was referred was a challenge against the Respondent’s dismissal.  That challenge should have been directed to the Labour Court not Ministry of Labour.

The Arbitrator erred on a question of law by accepting the objection regarding the Code of Conduct used in disciplining the Respondent when that objection was only raised for the first time before him. The objection regarding the Code of Conduct should have been raised at the initial hearing not ex post facto.

The learned Arbitrator erred on a question of law in failing to find that by failing to object to the use of the Code of Conduct in the initial disciplinary proceedings against him the Respondent acquiesced to use of that Code of Conduct in disciplining him and he waived his right to challenge it at a later stage.

The learned Arbitrator further erred on a question of law by declaring the Code of Conduct used to have been the wrong Code without conclusive proof of that allegation.

The learned Arbitrator erred on a question of law by failing to find that the Respondent did not exhaust his internal remedies by utilizing the available appeal procedures where the objection regarding the use of the Code of Conduct could still have been raised and addressed. “

The Appellant submitted that the Arbitrator erred in finding that the Labour Officer and consequently himself had jurisdiction to entertain the matter. The reasons were elaborated in two different sets of heads. Firstly the arbitrator wrongfully found that what was before him was a challenge on the use of the wrong code whereas what had been referred to him was a complaint of unfair dismissal. He could not have therefore concluded the matter on an issue not referred to him. Secondly the Arbitrator erred in entertaining the matter where clearly the Respondent had not exhausted his domestic remedies. Thirdly the Arbitrator wrongfully found that the issue before him was a dispute of right in terms of Section 93 of the Labour Act [Cap 28:01] whereas what was before him was an appeal against dismissal. The Appellant relied on the provisions in Section 101 (5) to support its arguments.

The Respondent arguments in opposition were that Section 93 allows the Labour Officer to deal with any dispute of right. The matter was referred to the Labour Officer as a dispute of right rather than an appeal against a determination by the employer. It was Respondent’s view that his right had in the circumstances been breached by the Appellants by use of a wrong code of conduct. It was respondent’s further contention that Section 101b (5) did not therefore apply in the circumstances of the matter as the code of conduct used was not a registered code of conduct as envisaged. Section 12 B (2) of the Act provided that an employee has to be dismissed lawfully under a registered code of conduct. As Respondent had been dismissed under a code of conduct not sanctioned at law there was clearly a dispute of right which Respondent properly referred to the Labour Officer. The Labour Officer and by extension the Arbitrator had jurisdiction to deal with the matter as a dispute of right.

In respect to the issue of exhaustion of internal remedies  the Respondent had a two pronged approach. Firstly as the matter that was referred was a dispute of right and not an appeal against the employer’s determination the issue of exhaustion of internal remedies did not arise. Secondly and conversely in the event that the court adopted the view that the matter before the Labour Officer was an appeal then Respondent would resort to hide behind the exception to the general rule/principle of exhaustion of internal remedies. It would be Respondent submission that he had good cause in the circumstances of the case to depart from exhausting internal remedies. His view was he would have been prejudiced by following provisions of a code of conduct which were materially different from the registered code of conduct. For an example the Respondent before the Arbitrator raised the issue that the charge leveled against him of FRAUD is non-existent in the Appellants registered code of conduct which is the copy handed in by the Registrar. On this basis therefore the matter was properly referred to the Labour Officer and the Arbitrator’s findings on the point were correct.

The court totally agrees with Appellant submission. The Arbitrator was clearly wrong when he found that the issue before him was a dispute of right in terms of Section 93 of the Labour Act [Cap 28:01]. The section being a general provision clearly could not be relied on when the Act itself provides a specific remedy for an employee dismissed in terms of a code of conduct.

The point is that whether the Appellant had utilized a registered or an unregistered code of conduct the disciplinary process being susceptible to resolution under a code of conduct the Labour Act [Cap 28:01] has provided a specific remedy of an appeal after exhausation of domestic remedies to the Labour Court under Section 92 D of the Labour Act. Section 92 D of the Labour Act in this regards provides as follows;

“Appeal to the Labour Court not provided for elsewhere in this Act

A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court.”

Section 101 (5) of the Labour Act also reiterates the position that there can be no referral to the Labour Officer of a matter susceptible to resolution under a Code of Conduct. Section 101 (6) provides the exception circumstances where such a referral to the Labour Officer can be allowed. It is only when a matter has not been determined within thirty days. Section 101 (5) and (6) read as follows;

“(5)	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.

(6)	If a matter is not determined within thirty days 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 ninety-three.”

The facts in casu indicate that Appellant had a registered code of conduct. The Respondent was subjected to proceedings under a code of conduct. The Labour Act [Cap 28:01] makes no provision for a situation where a party can resort to Section 93 as suggested by the Respondent. The fact that the code of conduct utilized was not the registered code of conduct would be irrelevant to the issue. The provisions in the Act are very clear where proceedings are susceptible to resolution under a code of conduct the proceedings cannot be referred to a Labour Officer except in situations of a delay.

The Respondent has also sought to argue that what was referred was a dispute of right rather that an appeal against the employer’s determination. This submission however is not supported by the record. The record will tend to show that what Respondent referred in his statement of claim on the 5th of November 2012 was stated as follows;

“b)	It is further submitted that the Appellant’s dismissal was challenged yet the Respondent did nothing to hear the other side of the story.  Therefore the dismissal was both procedurally and substantially flowed.”

The Respondent was clearly challenging Appellants decision to dismiss him on the basis that he had been denied the right to be heard on appeal. If indeed Respondent intended to appeal the decision his remedy lay in an appeal to the Labour Court after exhausting all domestic remedies. The Respondent also could have sought for review of disciplinary proceedings.

In regards the exhaustion of domestic remedies there is a dispute between the parties as to whether Respondent exhausted the domestic remedies. The Appellant submission is Respondent did not appeal against the Disciplinary Committee decision; a purported internal appeal was filed on 3rd March 2012 outside time and no condonation was sought; the purported appeal was made to the wrong person i.e a Country Manager Mr E. Wisemen instead of an appeal to the Management Director at the hotel in Vumba; the purported letter was not challenging the decision as such instead it was begging for lenience, in other words Respondent was admitting the offense.

The Respondent through supplementary hears of arguments does not dispute the points raised that the purported appeal was filed out of time and to the wrong person. He also did not essentially challenge the Appellant determination. He submitted instead that he had good cause not to exhaust the domestic remedies as the code of conduct utilized was wrong. The Respondent argument is a porous argument. It was open to Respondent if indeed he intended to appeal against the determination on the merits to note his appeal to the relevant authority. The fact that Appellant utilized a wrong code was an irrelevant issue. In any event the record shows issue was not raised in the purported appeal. The issue of wrong code of conduct was only raised at conciliation well after the period of appealing had expired. The only inference the court can draw is that he never intended to appeal the determination certainly not on the merits. It is clear on the facts therefore that the Respondent did not exhaust local remedies. The matter referred to the Labour Officer was improperly referred to the Labour Officer. The Labour Officer and by extension Arbitrator had no jurisdiction to entertain the matter.

Having come to this conclusion it is clear that the arbitral award cannot be allowed to stand. The award has to be set aside. Having set aside the arbitral award the court has to necessarily address the decision of the disciplinary committee which decision resulted in a penalty of dismissal.

In the disciplinary proceedings Appellant utilized the Code of Conduct which it claimed it had been utilising since 2001 which code was presumably a registered code.  At arbitration however the Respondent produced a Code of Conduct obtained from the Registrar of Labour which code according to the Registrar was the registered Code of Conduct (Certificate tendered indicates date of registration as from August 2001).  The Appellant submitted that it was proper to have utilized the Code in its possession as there were no material differences between the two Codes.  The Appellant highlighted these in its heads.  The similarities of the codes aside it is very clear that the valid Code in casu is the Code presented by the Registrar. Needless to point out a Code of Conduct must be registered in terms of the Act for proceedings under it to be valid.  In other words, proceedings in terms of an unregistered Code of Conduct are a nullity.  See Zimbabwe Newspapers (1980) Limited vs Ndhlovu 2000 (1) ZLR 127 (S).  It follows that a gross irregularity was committed in this case when disciplinary proceeds were conducted on the basis of an unregistered Code of Conduct.  The gross irregularity was sufficient to vitiate the disciplinary proceedings.  The disciplinary proceedings being a nullity ought therefore to be set aside.  The Appellant shall at its own discretion conduct fresh disciplinary proceedings provided such are conducted in a procedurally correct manner.  The Respondent shall revert to his status quo ante prior to disciplinary proceedings i.e. suspended with pay and benefits.

In the circumstances an order is granted in the follow terms;

The appeal partially succeeds.

The arbitral award by the Honourable D. Mudzengi dated 29th of April 2013 is hereby set aside; and

The matter is remitted back to the employee for the employer to, at its own discretion, institute fresh disciplinary proceedings.

Such disciplinary proceedings should however be conducted within 60 days of the date of this order.

The Respondent status shall revert to that of suspended without pay and benefits pending the hearing.

In the event however that reinstatement is no longer an option the Appellant shall pay Respondent damages in lieu of reinstatement the quantum of which is to be agreed between the parties failing which either party can approach the Labour Court for quantification of the damages.

Mtetwa & Nyambirai, appellant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners