Lilford Nhandara v Gerald Kambadza & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/151/2021
HARARE, 9 JUNE, 2021
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/151/2021

HARARE, 9 JUNE, 2021		    	    	       CASE NO. LC/H/APP/849/18

AND 08 0CTOBER, 2021

In the matter between:-

LILFORD NHANDARA						Applicant

Versus

GERALD KAMBADZA						1st Respondent

ZIMBABWE LEAF TOBACCO					2nd Respondent

Before The Honorable L. Hove, Judge:

For Applicant:				 In Person (Labour Officer)

For 1st Respondent:                       	 In Person

For 2nd Respondent:	 Mr S. Sadomba (Gill, Godlonton & Gerrans      Legal Practitioners)

HOVE J:

This is an application for condonation for late noting of an application for confirmation of a draft ruling.

The applicant is a Labour officer. On 20 August 2018, he handed down a draft ruling in a dispute between Gerald Kambadza and Zimbabwe Leaf Tobacco (first and second respondents respectively).

The background to the dispute is that the 1st respondent was charged at the work place with an act of misconduct. It was alleged that the 1st respondent was in the habit of absconding from work without authority from management. It was further alleged that the 1st respondent had absconded from his scheduled factory shifts on the 8th, 11th, 18th, and 31st August 2017 and on 1st September 2017.

The 1st respondent was charged in terms of the Labour (National Employment Code of Conduct) Regulations, SI 15/2006.

The dispute went through the disciplinary processes at the work place, the 1st respondent was found guilty and he was dismissed. He approached the Labour Officer on appeal against the decision of the appeals officer who had upheld the 2nd respondent’s decision to find him guilty and to dismiss him.

The Labour officer then delayed in applying to the Labour court for confirmation of his draft ruling. This was a 2017 ruling and in November 2018 the applicant filed this application for condonation for late filing of the application for confirmation.

When the matter came up for hearing, the 2nd respondent’s representative submitted that by virtue of the Supreme court’s decisions in the cases of;

Misheck Mabeza and Sandvik Mining & Construction (Private) limited SC 91/19

Tafadzwa M. Sakarombe NO and Wonder Simuka v Montana Carswell Meats (Private) Limited SC 44/20,

It was incompetent for the Labour court to proceed with the matter.

The two judgments cited above pronounced on the law regarding the powers of Labour officers and held that a Labour officer has no jurisdiction or powers to hear on appeal a dispute which had been dealt with in terms of the national code, that is, Statutory Instrument 15/2006.

The 1st respondent’s representative did not dispute the 2nd respondent’s submissions that the two Supreme court decisions had found that Labour officers had no authority to hear appeals from decisions made in terms of Statutory Instrument 15/2006. He submitted however that the decisions could not apply in retrospect. The argument was that since his client’s case had been heard and decided in 2017, well before the Supreme court decisions, then the decisions could not affect what had been done prior to their pronouncements and findings.

This reasoning is flawed. The Supreme court did not enact a new law, they simply interpreted a law that was in existence even prior to the dispute in casu.

The Supreme court had observed in Misheck Mabeza v Sandvik Mining & Construction (Private) Limited, (supra) as follows;

“It is obvious that in casu, the termination was effected in terms of the National Code of Conduct. The appellant in this dispute was charged with misconduct in terms of the National Employment Code of Conduct. He was subjected to disciplinary hearing in terms of a code of conduct as required by the law after which he was dismissed from employment. Given that the appellant was subjected to a properly conducted disciplinary process which culminated in a verdict and a dismissal consequent thereto, a reference to the Labour officer alleging unfair dismissal does not accord with the law…

It is therefore clear to the naked eye that he could not lodge a complaint with the Labour officer alleging unfair dismissal. The Labour officer would not have the jurisdiction to entertain any complaint from the appellant….This process could only be set aside through an appeal or a review. The process before the Labour officer was none of the above.”

Commenting on section 8 (6) of SI 15/2006, The Supreme court held as follows;

“In casu, a determination on the merits had been made by the disciplinary authority as provided for in the Code of Conduct. The reference to the Labour officer in terms of section 8(6) of the Code of Conduct would as a consequence seem to be in direct contrast to the provisions of section 101 (5) and (6) when one has regard to section 8(6) of the National Employment Code, one may be misled into assuming that even completed disciplinary hearings should be referred to a Labour officer. It is not so. In summing, this means that the proceedings before the Labour officer are a nullity”.

This clearly shows that the Supreme court has, not once but on at least two occasions held that a Labour officer has no jurisdiction to hear matters emanating from proceeding done in terms of the National Code.

The Supreme court went further to state that, if the Labour officer proceeds under those circumstances, then such proceedings would be null and void.

So the applicant in casu is seeking condonation to enable it to bring a nullity before the Labour court for confirmation. One of the considerations that the court should consider in deciding whether or not to condone applications of this nature, is whether applicant has good prospects of success, should the application be granted.

There are no prospects of success in seeking to enforce or to confirm a nullity. The application must fail.

The application is accordingly dismissed.

Each party will bear its own costs.

Gill, Godlonton & Gerrans	-	2nd respondent’s legal practitioners