Maranatha Ferrochrome (Pvt) Ltd v Allen Nani & N Chitauro N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/520/14
HELD AT HARARE 14TH JANUARY 2014
CASE
JUDGMENT NO LC/H/520/14
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/520/14

HELD AT HARARE 14TH JANUARY 2014	     	CASE NOLC/REV/H/37/12

& 1ST AUGUST 2014

In the matter between:-

MARANATHA FERROCHROME (PVT) LTD		Appellant

And

ALLEN NANI							1st Respondent

And

N CHITAURO N.O.						2nd Respondent

Before The Honourable B.T. Chivizhe, Judge

For Appellant		Mr S Bhebhe (Legal Practitioner)

Respondent			In person

CHIVIZHE, J:

The applicant seeks a review of the proceedings and determination of the second Respondent, a Labour Officer based at Chinhoyi Labour Office.  The application is opposed by the first respondent.  The second respondent filed no response to the application.

The material background facts are as follows;

The first respondent was employed by the appellant as a Human Resources Officer.  He was charged with an act of misconduct viz section 4 (a) of the Labour (National Employment Code of Conduct) Regulations, 2006 (Statutory Instrument 15 of 2006) namely ‘any act of conduct or omission inconsistent with the fulfilment of the expense or implied conditions of his or her contract.’  A disciplinary hearing was held in Harare at the appellant’s headquarters.  The first respondent attended the hearing.  He was found guilty on the charge and a penalty of dismissal from employment was consequently imposed.  The first respondent appealed to the Appeals Officer based in Harare.   The Appeals Officer in July 2011 upheld the Hearing Officer’s determination.  The first respondent then purported to file an appeal at the Chinhoyi Labour Office.  Conciliation was conducted on the 16 April 2012.  The appellant at hearing raised the point that second respondent had no jurisdiction to determine the matter.  The second respondent however ruled that he had jurisdiction and proceeded to hand down a determination.  the appellant seeks a review of those proceedings before the second respondent and his determination thereof.

The application has been noted on the basis of the following three grounds;

The disciplinary hearing and the determination sought to be appealed against having been made in Harare, the second respondent did not have the requisite territories jurisdiction to deal with the dispute;

The purported appeal was hopelessly out of time, and

In terms of section 92 D of the Labour Act, the appeal against the Appeals Officer ought to have been made to the Labour Court.

I should address these issues seriatim

The first ground for review is that the disciplinary hearing and determination having been made in Harare, the second respondent did not have the requisite territorial jurisdiction to deal with the dispute.  It is appellant’s contention that the Labour Officers do not have national jurisdiction. That territorial influence and jurisdiction is only limited to areas stated on their appointment certificates and which areas must be where the dispute arose.  In casu  the disciplinary hearing and appeal determination were all done in Harare.  The appeal matter should have consequently been conducted in Harare.  By referring the matter to Chinhoyi  the first respondent was simply forum shopping as it is a fact he is an Independent Labour Law Arbitrator in the same area. It is the appellant’s contention that the disciplinary hearing and determination not having emanated from second respondent’s area of jurisdiction the second respondent had no territorial jurisdiction to determine or deal with the dispute and/or appeal.

The first respondent submission on the point is that whilst the disciplinary hearing was conducted in Harare and finalised in Kadoma (Mashonaland West Province) he was employed by the appellant and stationed at Kadoma.  The referral of the matter to the Labour Officer based at Chinhoyi in Mashonaland West Province was therefore in his view proper and in accordance with section 8 (6) of Statutory Instrument 15 of 2006.

The present matter had been placed before NDEWERE J before her elevation to the High Court.  I took over the matter from her.  Before her departure she had requested through a letter dated 14 August 2013 to Ministry of Labour for clarification on the aspect of territorial jurisdiction of Labour Officers.  In a letter dated 28 August 2013 the Deputy Director, Labour Relations in the Ministry advised there is no legal instrument that defines territorial jurisdiction of Labour Officers.  Their territorial jurisdiction  is an administrative arrangement.  The Labour Relations Division in which Labour Officers fall is organised by Provinces.  There are district offices which report to provincial offices.  In those districts were there are no labour officers cases from districts may be handled at provincial level.  It was his final submission that in casu the matter emanating as it were from Kadoma district was properly placed before a Labour Officer based in Mashonaland West Province.

It is clear from the submission by the Deputy Director, Labour Relations that there was in principle nothing wrong in the manner in which the matter was referred to Chinhoyi, Kadoma being a district office falling under Mashonaland West Office.  What is therefore lacking from appellant’s submission is the aspect of prejudice.   Where no averment has been made prejudice the appellant suffered as to as a result of the matter being referred to Chinhoyi instead of Harare.  There is no such averment such made in appellant’s papers.  In the circumstances I am not persuaded by appellant’s submission that first respondent was forum shopping.

On the second ground of review the appellant submits that the purported appeal was also hopelessly out of time having been noted 8 months after the determination of the Appeals Officer made on 16 April 2012.  The referral of the matter was consequently a nullity and second respondent had no jurisdiction to deal with the matter.

The first respondent’s submission on the point is that he received the determination by the Appeals Officer on 10 August 2011.  He then noted his appeal with Chinhoyi Labour Office on 18 August 2011.  The appeal consequently fell within the time frame as set out in section 8 (6) of Statutory Instrument 15 of 2006.

Section 8 (6) of Statutory Instrument 15 of 2006 provides as follows;

“A person or party who is aggrieved by a decision or manner in which an appeal is handed 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 of receipt of such decision”

(My own underlining)

The first respondent submitted that he received the determination by

August 2011.  The appellant countered that by submitting that the first respondent received the determination on the 21 July 2011.  The appellant placed reliance on the determination letter by the appeals officer which first respondent legal practitioner acknowledged receipt by way of signature and date.  It is clear that on the basis of the evidence the first respondent must have been aware of the decision on or about the 21 July 2011  then file  appeal over 8 months later amounts to an inordinate delay.  In the absence of an application for condonation the second respondent ought to have dismissed the application.  I agree completely with applicant.

The last ground for review is that in terms of section 92 D of the Labour Act [Chapter 28:01] the appeal against the Appeals Officer ought to have been made to the Labour Court.  It was further submitted that to the extent that Statutory Instrument 15 of 2006 provides for an appeal to a Labour Officer its provisions are in  direct conflict with section 92 D of the Labour Act

[Chapter 28:01].  The conflict ought to be resolved by referring to section 2 A (3) of the Labour Act [Chapter 28:01] which provides that the Act shall prevail over any other enactment inconsistent with it.  It was appellant’s submission therefore that provision’s section 8 (6) and (7) of Statutory Instrument 15 of 2006 are overridden by the provision in section 92 D of the Labour Act [Chapter 28:01].  The first respondent’s view was that there is no contradiction between section 8 (6) of Statutory Instrument 15 of 2006 and section 92 D of the Labour Act [Chapter 28:01].  On the contrary the two provisions complement each other.

It is clear upon a perusal of the two provisions that the applicant indeed raises a valid argument.

Statutory Instrument 15 of 2006 is indeed an employment Code made in terms of section 101 of the labour.  It follows that the disciplinary proceedings in casu having been conducted in terms of an employment Code any appeal against the decision lies with the Labour Court and not the Labour Officer as suggested by the respondent.  Section 92 D of the Labour Act also clearly provides that;

“92 D Appeals 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.”

Clearly therefore to the extent that Statutory Instrument 15 of 2006 provides in section 8 (6) for an appeal to the Labour Officer 	that section is in conflict with section 92 D of the Act.  It cannot be correct as submitted by the respondent that the provisions complement each other.  The provisions are in clear conflict.

The remedy as submitted by the appellant’s counsel is to be found in section 2 A (3) of the Labour Act which reads;

“This Act shall prevail over any other enactment inconsistent with it.”

In the circumstances the provisions in section 92 D of the Labour Act prevail over sections 8 (6) and (7) of Statutory Instrument 15 of 2006.

Having  come to this conclusion it follows that the appeal referred to the Labour Officer in casu was lodged in the wrong forum.  The second respondent consequently had no jurisdiction to hear the appeal.  The application for review clearly succeeds.

It is accordingly ordered as follows;

The referral of the appeal to the Labour Officer is hereby set aside

There is no order as to costs.

Kantor & Immerman, appellant’s legal practitioners