Rainbow Tourism Group v Farai Kabasa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/694/14
HARARE ON 3rd JULY, 2014
CASE NO. LC/H/775/12
And 24th OCTOBER, 2014
JUDGMENT NO. LC/H/694/14
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/694/14

HARARE ON 3rd JULY, 2014				     CASE NO. LC/H/775/12

And 24th OCTOBER, 2014

In the matter between

RAINBOW TOURISM GROUP				–	Applicant

And

FARAI KABASA						–	Respondent

Before   The Honourable Manyangadze, J.

For the Applicant	: Mr. A. K. Maguchu (Legal Practitioner)

For the Respondent	: Mr I. Mataka (Legal Practitioner)

MANYANGADZE  J.

This is an appeal against an arbitral award that was handed down by Honourable P. Mutsinze on 11th September 2012. In terms of the award the Respondent’s suspension from employment was ruled to be unlawful, Appellant was ordered to reinstate the Respondent and institute fresh disciplinary proceedings.

The facts of the matter are common cause. The Respondent was employed as Accounts Receivables Supervisor. On 3rd February 2011, he was suspended from employment on allegations of misconduct. It was alleged that on two occasions he had received rentals on behalf of the Respondent and failed to account for the cash. The amounts involved were US$3,849.00 and US$200.00.

A disciplinary hearing was held on 8th March 2011. It was adjourned without a decision having been made.

Sometime in October 2013, the Respondent referred the matter to a Labour Relations Officer, as the matter had remained in abeyance since February 2013. The referral to a Labour Officer was done in terms of Section 101(6) of the Labour Act [Cap 28:01] (the Act), as 30 days had elapsed before the dispute was resolved.

After conciliation failed, the matter was referred for compulsory arbitration, leading to the arbitral award in contention.

Appellant’s grounds of appeal are as follows:

“The Honourable Arbitrator erred:-

Grossly both at law and on the facts in holing that a suspension generally and in casu is solely meant to facilitate investigations.

Grossly both at law and on the facts in holding that a suspension generally and in casu becomes void once the employer had failed to conclude disciplinary proceedings within thirty (30) days.

Generally at law in holding that a suspension under the Appellant’s Code of Conduct is meant to subsist up to a maximum of thirty (30) working days or that it automatically lapses if the Respondent fails to conclude disciplinary proceedings as in casu.

Having noted that a referral in terms of Section 101(6) of the Labour Act is meant for her to act in place of the first level of a disciplinary hearing, the Arbitrator erred grossly at law in abdicating on the very duty placed on her to hear the matter.

in failing to hold that the Respondent had the onus to prove he was innocent by the Arbitrator’s own finding the Respondent having failed to dislodge such onus then the Arbitrator ought to have found the Respondent guilty.”

Grounds of appeal (a) to (c), in my view, basically deal with the same issue, being the validity of the Respondent’s suspension.

The Arbitrator nullified the suspension on the basis that it was prolonged beyond 30 days. This appears clearly from her award, at pages 18 – 19:

“Given the fact that the respondent failed to conclude the disciplinary proceedings within the stipulated timeframe, the issue in dispute becomes whether the suspension is rendered void at law (the position of the claimant), or it will be valid till the conclusion by the Arbitrator following referral of matter in terms of Section 101 (6) (the position of the respondent) In line with Section 24(1)(f) of the Labour Act as read with Section 6(2) of Statutory Instrument 15 of 2006 and Section 2.7.3. (b) of the RTG Code of Conduct. ……………..………………….. I am persuaded to agree with the claimant that the suspension should not have been extended beyond the prescribed period of thirty days. In the process, failure by the respondent to conclude the matter on time prejudiced the claimant as he was on suspension without pay and benefits and this is sufficient justification to set aside the whole proceedings …………………………………….”

The Respondent was suspended in terms of the applicable Code of Conduct, in this case the Rainbow Tourism Group Code of Conduct. Section 2.7.3. (a) and (b) of the Code provides as follows:

“2.7.3. SUSPENSION

Whenever an employee is to be suspended from carrying out his duties as a precautionary measure in order to facilitate an investigation of an alleged offence or following arrest and pending prosecution for a crime allegedly committed within the employment;

The suspension shall be with or without wages, salary or benefits for the duration of such suspension, and shall last until the conclusion of the disciplinary proceedings.” (underlining added).

The Appellant relied on this provision. It contended that the suspension was in compliance with the Code. This averment is contained in paragraph 10 of Appellant’s Heads of Argument, wherein it is stated, inter alia, that:

“The code of conduct’s provision is that once a suspension has been meted out, it remains valid until a result on the disciplinary process has been announced.”

The Respondent placed reliance on Section 101(6) of the Act, which provides;

“If a matter is not determined within thirty days of the date 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 Respondent contended that the stipulated period for duration of the suspension is 30 days, having regard to the cited provision of the Act. He further contended that provisions of the Act take precedence over those of the Code of Conduct. The Arbitrator was persuaded by the Respondent’s contention, and nullified the suspension. As I see it, this appeal was on an interpretation of the provisions of the Code and the Act, with regard to the issue of suspension.

Starting with the Code, the applicable provision cited above, is clear and simple. It admits of no interpretation. It does not prescribe a time limit within which a suspension should last. It provides that the suspension shall remain until the outcome of the disciplinary proceedings.

When the words of this provision are given their ordinary, grammatical effect, they show no 30 day time limit, or any other time frame for a suspension. To read into them a time limit would be to violate their clear and unambiguous meaning.

It is noted that this provision of the Code is giving the employer an unfair advantage over the employee. As in this case, the employee remained on suspension, without salary and benefits, from March 2013 to October 2013, when he took up the matter with a Labour Officer. There may be need to revisit such a provision, with a view to effecting appropriate amendments. That, however, is not an issue before this Court. The Court is considering the provision in its current form.

The pertinent question then arises, does the provision place an employee on perpetual suspension, without any remedy? The answer is obviously in the negative. This is where Section 101(6) of the Act comes into play.

If the dispute is unresolved within 30 days of commencement of proceedings, the employee can refer the matter to a Labour Officer. This referral then sets in motion conciliation and arbitration proceedings. Section 101 (6) is giving a concerned party, in the instant case the employee, the option of referring the matter to a Labour Officer, or wait for conclusion of the disciplinary proceedings. It is not prescribing a 30 days limit for conclusion of the disciplinary proceedings. There is no conflict between this provision and that of the Code.  It is granting relief to a beleaguered party in the position of the Respondent, frustrated by delays in the conclusion of disciplinary proceedings.

This provision was clarified in the case of Monday Watyoka v ZUPCO (Northern Division)  S.C. 87/05. CHEDA J.A. commented extensively on the meaning and application of Section 101(6) of the Act. The learned Judge stated, at pages 4 to 5 of the cyclostyled judgment:

“Subsection (6) of s 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined. The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral to challenge a determination that has already been made.

The section should be read as being only permissive and not restrictive. In my view, the intention of the legislature is to grant relief to a party who is affected by the delay. The section provides that:

‘… the employee or employer concerned may refer such matter to a labour relations officer, who may then determine or otherwise dispose of the matter...’

Clearly, the referral can only be made before a determination is made.

It was probably foreseen that in certain cases one party could frustrate the other by causing delays to the prejudice of the other. That seems to be the reason why the word “may” is used.

The party concerned does not have to refer the matter to the labour relations officer. That party may still wait for determination to be made even after the thirty days period.

Accordingly, the period of thirty days does not refer to the time within which a valid determination should be made.  The section does not say the determination should be made within the thirty days period. All it does is to restrict any concerned party from rushing to refer the matter to a labour relations officer before the expiry of thirty days.

It follows that where the thirty days has lapsed the concerned party can choose to refer the matter to a labour relations officer or wait for a determination to be made.”

In the instant case, the Arbitrator fell into the error of imposing the 30 day period in Section 101(6) of the Act, onto the Code. This led him to hold that the disciplinary proceedings were a nullity because they exceeded the prescribed 30 day period. As seen in the clear explanation by CHEDA J.A. in the Watyoka case, supra, this was a wrong application of Section 101(6) by the Arbitrator.

The Arbitrator did not go into the merits of the dispute between the Appellant and the Respondent. She disposed of the matter on the basis of the procedural aspects relating to the suspension. This perpetuated the impasse between the parties. If she had decided the matter on the merits, it would have possibly come to this Court as an appeal decided on merits. It would be improper for this Court to delve into the substantive issues of the dispute, which issues the tribunal aquo did not deal with.

In my view, the appropriate remedy would be to remit the matter to the Arbitrator, for her to determine the dispute on the merits. What this means is that the parties revert to their status prior to the arbitral award. The Appellant remains on suspension until the Arbitrator determines the matter on the merits. The appeal will therefore be allowed to that extent.

It is accordingly ordered that;

The appeal be and is hereby allowed.

The arbitral award issued by Honourable P. Mutsinze on 11th September 2012 be and is hereby set aside.

The matter be and is hereby remitted to the same Arbitrator for determination on the merits.

Each party bears its own costs.

Dube, Manikai and Hwacha – Appellant’s legal practitioners

Chambati and Mataka – Respondent’s legal practitioners