Medix Pharmacies (Pvt) Ltd v Honest Nhavira

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/456/2016
HARARE, 17 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/456/2016

HARARE, 17 FEBRUARY 2016				  CASE NO. LC/H/1037/13

AND 22 JULY 2016

In the matter between:-

MEDIX PHARMACIES (PVT) LTD				Appellant

And

HONEST NHAVIRA						Respondent

Before Honourable R.F. Manyangadze, J

For Appellant 		Ms T J Magaya (Legal Practitioner)

For Respondent		Mr W Madzimbamuto (legal Practitioner)

MANYANGADZE, J:

This is an appeal against an arbitral award handed down on 2 December 2013, in terms of which the appellant was ordered to pay the respondent an amount of US$25 580,00 as damages for loss of employment, back pay and service pay.

The respondent was employed by the appellant as credit analyst.  He had risen through the ranks from Accounts Clerk, Department Manager, to Credit Analyst.  His contract of employment was terminated after disciplinary proceedings in which he was charged with misconduct, the charge being that of absenting himself from work without leave.

The respondent lodged a complaint with a labour officer, alleging unfair labour practice.  Conciliation failed.  The matter was referred to arbitration, leading to the arbitral award in contention.

The grounds of appeal are stated as follows:

“1.  IN LIMINE

The Honourable Arbitrator for (sic) grossly misdirected herself by straying from her mandate of dealing with Two issues referred to her for arbitration an (sic) creating her own issues as submitted by the Respondent.  The Honourable Arbitrator was to determine:-

whether or not the dismissal of the Claimant was lawful,

the appropriate remedy,

The Arbitrator went on to deal with Claimant’s new issue, that of unfair labour practice, which issue the conciliator did refer to the Arbitration and the Arbitrator’s terms of reference confirm that

The Arbitrator further erred law by failing to uphold the point in limine raised before her, specifically that the Respondent had not exhausted domestic remedies by failing to appeal within the prescribed period in the code to the appellant’s Director.

The Arbitrator fell into error by describing the Disciplinary hearing conducted by the Appellant as a Kangaroo Court without any legal basis for doing so.

ON THE MERITS

The Arbitrator erred (sic) at law by making other finding that the disciplinary proceedings conducted by the Appellant were null and void and the claim for unfair labour practice was the one that was of importance for determination.  The decision of the Arbitrator is so outrageous in its defiance of logic that no reasonable Court would have ruled that way.

The finding that The Respondent was dismissed for self-induced absenteeism has no legal basis. The Appellant did conduct a hearing in terms of the code after the Respondent refused to come back to work in terms of the code of conduct.

The Arbitrator fell error at law by making the finding that Respondent was entitled to punitive damages in terms of S89 (c) (iii)

that reinstatement was no longer possible and,

there was a justification for appellant to be punished for its conduct.

The Court Aquo erred at law in making the findings on the damages and service pay without hearing evidence on the qualification (sic) of same.”

At the hearing of the matter counsel for the appellant simply adhered to the submissions filed of record, and added no oral submissions.

Counsel for the respondent, to a large extent, also adhered to the papers filed of record.

The first ground of appeal is under the heading “IN LIMINE”.  It has been styled in limine, it seems, because the averments made thereunder, if upheld, have the effect of disposing of the appeal without delving into the substantive issue of the alleged unfair dismissal.

The averments could simply have been referred to as ground of appeal number (1), as they constitute part of the appellant’s 2 grounds of appeal.  Ground (1) raises 3 issues, averred under paragraphs (a), (b) and (c).  Ground (2) raises 4 issues, averred under paragraphs (a) to (d).  The grounds of appeal could simply have been structured that way, without denoting ground (1) “IN LIMINE” and ground (2) “ON THE MERITS”.

Be that as it may, the first issue the appellant raises is that the arbitrator went outside her terms of 	reference. She dealt with the issue of “unfair labour practice”, when the terms of reference referred for arbitration had the issue of “whether or not the dismissal of the respondent was unlawful”.  Put differently, the appellant is contending that the arbitrator had no jurisdiction to deal with an issue that had not been referred to her.  She acted ultra vires her terms of reference.

In countering this argument, the respondent argued that the appellant was raising a procedural issue that should be brought by way of review.  An appeal was not the correct forum on which to address such procedural issues.  The respondent posited that an appeal is concerned with the correctness of the decision made whilst a review is concerned with the correctness of the procedure used.  The respondent’s contention reflects a correct position of the law. In A Guide to the Administrative and Local Government Law in Zimbabwe 4th ed, at page 44, G. Feltoe stated:

“The remedy of review must not be confused with that of appeal.  The main difference between these two remedies is that in an appeal what is in question is substantive correctness of the original decision whereas on review the High Court is not delving into the substantive correctness of the decision, but is only determining whether there were any reviewable procedural irregularities or any action which was reviewable because it was ultra vires the powers allocated to the tribunal.”

In casu, it is averred that arbitrator acted ultra vires her terms of reference, and determined an issue for which she had not been conferred with the requisite mandate or jurisdiction.  The question is not whether or not she correctly determined that issue but whether she had the mandate to even entertain it. That is a reviewable issue.  In the circumstances, ground of appeal 1 (a) is not properly before the court.  It is accordingly struck off.

In ground of appeal 1 (b) the appellant avers that the respondent did not exhaust the available domestic remedies.  After he was dismissed following the initial disciplinary hearing, he should have lodged an appeal with the Managing Director in terms of the applicable Code of Conduct.  Instead, he rushed to file a complaint with a labour officer, which led to compulsory arbitration.

The essence of this ground of appeal is that the labour officer and the arbitrator were not properly seized with the matter.  This is an issue that was raised by the appellant before the arbitrator as a preliminary point.  The arbitrator dismissed the preliminary point, and proceeded to entertain the matter.  As a point that was raised and determined by the arbitrator, it is properly before the court as a ground of appeal.  It is an appeal against the correctness of the arbitrator’s decision on that point.  This position is consistent with what G. Feltoe, supra, stated, when distinguishing a review from an appeal.

The appellant’s contention is that the respondent ought to have pursued his appeal in terms of the Code of Conduct.  The failure by the arbitral tribunal to direct the respondent to the domestic remedies he abandoned was fatal to the proceedings before it.  This, argued the appellant, should dispose of this appeal without going into the substantive issues thereof.

The respondent, on the other hand averred that he was not obliged to exhaust the domestic remedies provided by the Code of Conduct.  The respondent, in the main, contended that the procedures available in the Code of Conduct did not proffer him suitable remedies, given the acrimony between him and the appellant.

The need to exhaust domestic remedies was clearly spelt out in Munyuki v City of Gweru 1998 (1) ZLR 182.  GUBBAY CJ cited with approval the remarks of HARMS J in Reckitt & Coleman (SA) (Pty) Ltd v Chemical Workers Industrial Union & Ors (1991) 12 ILT 806 (LAC), at p813 A-D;

“It is a principle of fairly general application that a party should utilise his domestic remedy and procedure before approaching a court.  There is no reason in principle why such a rule should not be applicable to proceedings before the industrial court.  That court has a duty to apply equitable principles in assessing what is fair between employer and employee.  If the employer and employee have entered into an agreement regulating disciplinary enquiries and providing for internal appeals, it would appear that under normal circumstances an employee who is to be disciplined has to attend and partake in those proceedings.”

G. Feltoe, supra, underscored the principle, at page 46;

“In a number of Zimbabwean cases, it has been held that a court has a discretion as to whether to review the matter before the remedies provided for in the statute have been exhausted.  The aggrieved party should, however, normally exhaust those remedies unless there are good reasons or special circumstances for not doing so.” (emphasis added)

In the instant case, the respondent contended that use of the Code of Conduct, wherein domestic remedies are available, would not be in his interests.  The reasons he advanced were that;

The appeal system did not provide for a rehearing of the matter – the appeal panel was confined to the record of the disciplinary proceedings.

The appeal panel was likely to be biased as it would be constituted by the very same people to whom the respondent had channeled his grievances.

The appeal system did not provide better and cheaper remedies.

Both counsel confirmed that the applicable Code is the National Employment Council for the Commercial Sectors Employment Code of Conduct and Grievance Procedures (the Code).

Disciplinary procedures are provided for in PART II of the Code under paragraphs 4 to 11.  Paragraph 4 deals with the preliminary investigation Paragraph 5 provides for the determination by the Designated Officer, after the evidence compiled in the investigation is considered.  This determination involves a finding of guilt or otherwise, and imposition of penalty.

The procedures in casu, it appears, had reached the stage in paragraph 5.  This is the stage where the initial disciplinary inquiry had resulted in the respondent’s conviction and dismissal from employment.  A determination to this effect was made on 28 March 2013, issued by Mr Aggripa Nyatanga, Manager – Administration and Personnel.

The next stage is in terms of paragraph 7, the appeal process. The appeal lies with the employer, which is the next level of managerial hierarchy.  In the instant case, the employer is represented by the Managing Director. The respondent was advised, in the determination letter, of his right to appeal to the Director, within 7 days.  Paragraph 3 provides:

“Any such appeal shall be submitted direct to the employer whose decision shall be made after consideration of all evidence and having allowed the procedure set out in paragraph 6.1.”

This paragraph obliges the appeal officer to utilise the procedure set out in paragraph 6.1.  Paragraph 6.1 provides:

“On receipt of the evidence and report referred to in paragraph 5.2 or 5.3, the employer shall examine such evidence and report in detail and may take such further evidence in whatever form he considers appropriate, having due regard to the principles of natural justice and fairness and, in particular, shall afford the employee the opportunity of appearing before him.”

It is clear from this provision the appellate authority is not confined to the record of the disciplinary proceedings.  He is empowered to “take such further evidence in whatever form he considers appropriate”, guided by the principles of natural justices and fairness.  This includes affording the employee concerned an opportunity of appearing before him.

The respondent’s assertion that the internal appeals hearing is tied to the initial disciplinary record only is not correct, in the light of the virtually unfettered discretion the appeals officer has on how to conduct the appeal, as seen in the cited provision.

Paragraph 7.2.1 shows that the next level of appeal is the Local Joint Committee for the Council.  At this level, the appeal is taken out of the employer, to the National Employment Council.  At this stage, it cannot still be regard as an internal appeal, as it would have been taken outside the employee’s workplace.

Paragraph 7.3.2 provides for a further appeal to the Negotiating Committee of the N.E.C.  From this level the appeal then lies with the Labour Court.

There is therefore an elaborate appeal structure, which takes the appeal from the company to the N.E.C. With such a structure in place, the respondent’s allegations of antagonism and bias cannot be sustained.  Two of the appeal levels, the Local Joint Committee and the Negotiating Committee, are external.  There is no reason why the respondent did not exhaust these structures.

There is no provision for referral to a labour officer in the structures looked at.  The appellant opted for a procedure of his own, entirely outside the applicable Code of Conduct.  Once the initial determination was made and communicated to him, his next port of call was the employer, through the office of whichever official handled appeals.  It appears in this case it was the Managing Director.  If aggrieved, the system provided for appeals to the N.E.C. Committees.  There was no basis for taking the conciliation and arbitration route.  The effect was to clutter the court system with a matter that could well have been attended to at the N.E.C. level.

The instant case is clearly distinguishable from the one that obtained in Moyo v Forestry Commission 1996 (1) ZLR 173 (H), which the respondent relied on.  In that case, it was found that there were inadequacies in the internal remedies structures, which persuaded the court to hold that the appellant was not obliged to exhaust domestic remedies.  The same cannot be said in casu, given the structures referred to.

The need to avoid cluttering the courts where domestic remedies are deemed adequate was highlighted by G. Feltoe, supra, at page 45;

“It can be argued that if the administrative machinery is working well and effective internal remedies are provided for, the administration is in the best position to rectify its own mistakes and should be given the opportunity to do so.  To allow premature access to the courts before the administration has been given the opportunity to rectify the mistakes will undermine the functioning of the administration.  Aggrieved persons should only be allowed to approach the courts after exhausting these internal remedies.  Additionally requiring that internal remedies be pursued first will avoid inundating the courts with administrative matters which could easily be remedied by the administration itself. (See Yvonne Burns Administrative Law under the 1996 Constitution (2nd ed) pp 290-292). From the standpoint of the aggrieved person, it may be well in his or her best interest that the matter be expeditiously settled by using his domestic remedies rather than referring the matter to court, particularly where the court is likely to refer the matter back to the original tribunal for a re-hearing.”

In the present case, the respondent has not demonstrated sufficient cause why he should be allowed to avoid the domestic remedies provided by the Code.  He did not fully and clearly explain to the court the nature of those remedies.  It was only after the court had a look at the provisions of the Code, that it found that the respondent’s explanation did not measure up to justification for a departure from the Code.

In the circumstances, the appellant’s contention, in ground 1 (b) of its appeal, has the effect of disposing of the appeal without a consideration of the rest of the grounds.  It means the labour officer, and the arbitrator, were not properly seized with the matter.  The appeal must therefore succeed and the arbitral award set aside.

In the result, it is ordered that;

The appeal be and is hereby allowed.

The arbitral award granted in favour of the respondent on 2 December 2013 be and is hereby set aside.

The respondent shall bear the appellant’s costs.

Maganga and Company, appellant’s legal practitioners

Nyikadzino, Simango & Associates, respondent’s legal practitioners