Prince Edward School v Respondent

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/714/16
HARARE, 10 SEPTEMBER 2016
CASE NO.
JUDGMENT NO. LC/H/714/2016
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IN THE LABOUR COURT OF ZIMBABWE  	     JUDGMENT NO. LC/H/714/16

HARARE, 10 SEPTEMBER 2016		               CASE NO. LC/H/730/14

AND 4 NOVEMBER 2016

In the matter between:-

PRINCE EDWARD SCHOOL			Applicant

This is an application for leave to adduce further evidence on appeal. The application is opposed.

The Background Facts

The Respondent was employed by the Applicant as an English Teacher. He was engaged from March 2009 to January 2012.  The Respondent’s submissions before the Arbitrator was that he had made an application for one year study leave without pay in order to further his studies at Wits University in South Africa.  He claimed that Applicant had acceded to his request.  In January 2013 upon resumption of his duties he was then advised by the Respondent   that his contract of employment had been terminated as his study leave had not been approved.  The Applicant had formulated the view that he had gone absent without official leave.  The Applicant was alleging repudiation of contract.  A dispute ensued between the parties  which was referred to the Designated Agent for conciliation.  When the dispute remained unresolved it was then referred to the Arbitrator in terms of Section 93 (5) of the Labour Act [Cap 28: 01] for compulsory arbitration.

The Arbitrator after considering submissions and the facts in the record came to the conclusion that the Applicant had tacitly allowed the Respondent to proceed on leave.  The Respondent had however erred in proceeding on leave thereafter without obtaining the official study leave letter.  The Applicant erred however in failing to institute disciplinary proceedings against the Respondent for failing to report for duty.   The Arbitrator therefore found that there had been an unlawful termination of the employment contract.  On that basis he directed that Respondent be reinstated without loss of salary and benefits or in the event that reinstatement was no longer tenable payment of salary arrears and damages in lieu of reinstatement.

The Appeal

The Appellant being aggrieved noted the present appeal on the basis of the following grounds:

The Honourable Arbitrator erred in finding that the correct party had been cited;

The Honourable Arbitrator erred at law in finding that the matter was properly before him;

The Honourable Arbitrator erred in finding that the Applicant should have instituted disciplinary action against the Respondent in absentia. The Respondent wilfully terminated at the very least repudiated his contract of employment thereby relieving the Appellant of any obligations  in relations to that contract of employment;

The Honourable Arbitrator erred in ordering that the Respondent be reinstated without loss of salary and benefits or if reinstatement was no longer possible, salary back-pay from January 2013 to date and damages lieu of reinstatement.  The Respondent unlawfully terminated or at the very least repudiated his contract of employment and so has no claim against the Appellant.

On the date of the hearing of the appeal the Respondent took the point in limine that the Appellant had improperly cited the Applicant as Prince Edward School whereas the party that was before the Arbitrator and against whom the award was made is Prince Edward School Development Association (S.D.A.) The Applicant having brought to the court’s attention that all the paper filed actually refer to the S.D.A and not the school the Respondent then withdrew the point in limine.   The point in limine was consequently dismissed by the court.

The Application to Adduce Further Evidence on Appeal

The Applicant’s second ground of appeal before this court was that the Honourable Arbitrator erred at law in finding that the matter was properly before him.  The basis for the submission was that there being no registered Collective Bargaining  Agreement governing the NEC, for Welfare and Education institutions the matter ought to have proceeded under the National Employment Code of Conduct Regulation, 2006 Statutory Instrument 15 of 2006. Secondly the Respondent not being a graded employee in terms of the National Employment Council School Development Association (NEC SDA) the matter was consequently improperly placed before the Arbitrator.  The Respondent’s position on the papers was that the Arbitrator indeed had jurisdiction.  The Respondent relied on the provisions in Statutory Instrument 102 of 2014 in Section 31 which empower Designated Agents to handle disputes arising in the Industry.  The Respondent’s position was that in casu the ‘industry’ related to all undertaking that fall under the NEC Welfare and Educational Institutions to which Prince Edward School SDA employees subscribed.  On that basis the Arbitrator clearly had jurisdiction.

On the date of hearing the Applicant applied to adduce further evidence in relation to this ground.  It was Applicant’s contention that having made enquiries with the Ministry of Labour (through a letter by Applicant’s counsel dated 25 July, 2016) the Ministry of Labour had advised Applicant of the correct position at law which is of the registration of the Zimbabwe Schools Development Association and Committees of Zimbabwe and the registration of the NEC for Welfare and Educational Institutions (copy of letter dated 22 July, 2016).

The applicant before me was seeking leave to adduce further evidence on appeal to show that at the material time that the matter was placed before the Arbitrator there was a registered NEC for Welfare and Educational Institutions it having been  registered on the 15th of  August, 1996 (copy of certificate attached). The further submission was that on the basis of the evidence Designated Agent who initially heard and by extension the Arbitrator had no jurisdiction to entertain the matter.  The application was vehemently opposed by the Respondent.

Mr Rudolph, for the Applicant, submitted that the evidence sought to be adduced was not available at the material time of the hearing of the matter.  The evidence was however crucial in that it would resolve definitively the jurisdictional issue that was before the Arbitrator. The Rules of the Labour Court allow for informality in its proceedings and therefore the evidence can still be adduced even at the late stage of an appeal.  To the point that it was being raised for the first time, he submitted that even at arbitration the issue of jurisdiction was taken.  Even if it had not the point was still a point of law which could be taken at any stage provided as long it is does not involve any unfairness or is prejudicial to the other party.   In this case the Respondent would suffer no prejudice as the issue of jurisdiction had always been in contention.  He further submitted that it was not possible for him to have produced the evidence at that stage as the evidence was not available as at that stage.

Mr Mbano, in counter, submitted that the purpose of the Labour Court is to ensure social justice prevails between the employers and employees.  The court was urged not to grant the application as to do so would be perpetrate an unfairness to the Respondent.  The Applicant was seeking to introduce new facts midway through proceedings when the ground rules had already been laid at arbitration.  The issue of jurisdiction was not the terms of reference.  The Applicant had conceded to the matter proceeding before the Arbitrator concerned.  Applicant could not be allowed to at this stage seek to deny the Arbitrator’s jurisdiction.  Prejudice would definitely visit the Respondent as if the court concedes it would entail a fresh hearing before a different Arbitrator.  The court was not being urged to ignore the correct position at law which is that there is in existence a registered NEC for Welfare and Educational Institutions but the court ought to do justice between the parties in the circumstances of the case.

The Principles Applicable

The court in determining an application such as this has a discretion in the matter.  The factors that the court considers in the exercise of such discretion has been laid in several decided cases.  These include whether;

the evidence could not with reasonable diligence have been obtained in time for trial;

the evidence is apparently credible;

the evidence would probably have an importance influence on the result of the case although it need not be decisive; and

conditions have changed since the trial that the fresh evidence would prejudice the opposite party.

See in this respect Farmers C-op (Pvt) Ltd vs Barden Syndicate (Pvt) Ltd 1961  R & N 28 (FS) at 31B-C Leopard Rock Hotel Co.(Pvt) Ltd & Another vs Walem Construction (Pvt Ltd 1994 (1 ZLR 25S(S) at 260 G and Warren Codrington vs Farsyten at 381 B and Shave vs Chimbari & Ors 2007 (1) ZLR 53 (S).

Analysis/Findings

In regards the first point the Applicant’s submission is that the evidence was not available at the material time.  Statutory Instrument 1O2 of 2014 which gives Designated Agents powers to deal with matters was only registered in 2014.  It only came into effect thereafter.  On the basis of the papers the court agrees with Respondent that the evidence sought to be adduced on appeal was indeed available and could have easily been obtained and adduced before the Arbitrator.  The certificate of registration shows that the NEC for the Welfare and Educational Institutions was registered on the 15th August, 1996 whereas the NEC for Zimbabwe Schools Development Association or Committees was registered on the 8th May, 2013.   The Applicant has not submitted that it encountered difficulties to obtain the information.  The information could have been made available before the Arbitrator had Applicant’s legal practitioners exercised diligence.  As  it  is the Applicant’s legal practitioners only wrote a letter to Ministry of Labour on the 5th of August, 2016 well after the arbitration proceedings and mid-way through the appeal  hearing before this court.   The court in my view should not be seen to condone such ineptitude. I shall revert to this point later.

That the evidence sought to be adduced is credible is of no doubt.  The Applicant is seeking to produce the original certificate of registration for the NEC for the Welfare and Education institution obtained from the Ministry of Labour.   The fact that the evidence would have an important influence on the result of the case is also apparent.   The evidence were it to be admitted would assist the court in clarifying a crucial issue as to whether the Designated Officer and by extension the Arbitrator had jurisdiction to entertain the matter.  As the certificate confirms the existence of NEC for Welfare and Educational Institutions it would consequently follow that the Designated Office and by extension the Arbitrator had no jurisdiction in the matter.  The net result would be a quashing of the proceedings and a remittal for fresh proceedings to be conducted before the appropriate NEC.

There is also no doubt that to take such a course would be highly prejudicial to the Respondent.  The matter commenced in 2013.  The Arbitrator having granted an award in his favour the matter went for quantification.  The Arbitrator having awarded him back pay and damages for loss of employment the Applicant again appealed.  The Labour Court in July 2016 dismissed the appeal against the quantification award.  To then have the proceedings quashed and the matter to be remitted is grossly unfair.

However in view of the fact that the issue being raised in this application is in the nature of a point of law, which point can therefore be raised at any time, even for the first time on appeal provided its consideration involves no unfairness to the party against whom it is directed the court is persuaded to allow the point.  This is more especially so as the issue being raised relates to jurisdiction.  In that respect Garwe JA in Zimasco (Pvt) Ltd vs Marikano 2014 (1) ZLR 1 (S) stated as follows;

“The rationale for allowing issues of the law to be raised at any time is to enable a court to have all the information, even at a very late stage, so that it is enabled to make a proper decision. The issue raised was a serious one.  If a court has no jurisdiction that would be the end of the matter and any determination made thereafter would be null and void.”

On that basis the court therefore allows the application to adduce further evidence.

As alluded to earlier I believe the Applicant’s conduct through its legal counsel is highly reprehensible.  The Applicant Counsel in 2013 did not raise the issue of the existence of an NEC before the Arbitrator.  The record will show they instead pleaded the opposite.  To then three years later turn around and seek to reverse the whole process on the basis of evidence acquired in the 11th hour is grossly unfair.  If such conduct were to be allowed there would be no end to litigation.  Given the conduct of Applicant counsel it seems appropriate therefore that Applicant ought to be deprived of costs of this application.

In the result it is hereby ordered as follows,

The application to adduce further evidence be and is hereby granted.

The Registrar is directed to reset the appeal for continuation on the next available date.

There shall be no order as to costs.

Devittie Rodolp & Timba, appellant’s legal practitioners

Mbano & Partners, respondent’s legal practitioners