S. Mutanda and Others v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO, LC/H/185/2014
HELD AT HARARE ON 22 OCTOBER, 2013
CASE NO. LC/H/499/2013
JUDGMENT NO, LC/H//2014
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IN THE LABOUR COURT OF ZIMBABWE    	 JUDGEMENT NO, LC/H/185/2014

HELD AT HARARE ON 22 OCTOBER, 2013		   CASE NO. LC/H/499/2013

& 28 MARCH 2014

In  the matter between:-

S. MUTANDA AND OTHERS				-	Appellant

And

CITY OF HARARE						-	Respondent

Before The Honourable B.T. Chivizhe:  Judge

For Appellant	-	Mr A. Mugandiwa (Legal Practitioner)

For Respondent	-	Mrs R.P. Chimhenga (Principal Legal Officer)

Chivizhe  J,

This is an appeal against an arbitral award handed down on 27 May 2013 the operative part of which reads as follows;

“That it be, and is hereby, ordered that the dispute be remitted back to the designated agent of the Employment Council for the Undertaking of Harare Municipality who is seized with matter for disposal.”

The background facts to the matter are as follows;

The Appellants were employed by the Respondents.  In 2005 the water function of the Respondent was transferred to ZNWA as going concern, (i.e. including assets liabilities and employees).  With effect from the 1st of February, 2009 the water function was re-transferred from ZINWA to the Respondent.  The Appellants who were responsible for water purification were consequently transferred from ZINWA to the Respondent effective 1st February 2009 in terms of Section 16 of the Labour Act [Cap 28:01].  Immediately before their transfer to the Respondent the Appellants were being paid as part of their conditions of allowance by ZINWA.  The allowance was according to Appellants paid to employees assigned duties at a higher level i.e. duties outside the terms of contract in as and/or job description.  Upon transfer back to Respondent the Appellants were again assigned duties at a higher level and were thus paid responsibility allowance.  They were paid in March, 2011 responsibility allowance including arrears for the period commencing 1st February 2009.  The payments continued up to October 2011 when the Respondent unilaterally withdrew the allowance.  The Respondent then proceeded to deduct monthly from the Appellants to recover the amount paid.

The Appellants referred a complaint of unfair labour practice to the NEC.  When the designated agent failed to resolve the dispute within 30 days the Appellants referred the matter to the Labour Officer for conciliation.  When the Labour Officer failed to resolve the dispute the matter was referred to compulsory arbitrator.  The terms of reference for the arbitrator were as follows;

Whether or not the labour officer has jurisdiction to conciliate a case where there is an employment council for the undertaking.

Whether or not the complainants are entitled to payment of responsibility allowance.

Whether or not the withdrawal of the responsibility allowance by Respondent from the claimants was lawful.

In the event that the withdrawal of the Responsibility allowance is found to have been unlawful what is he appropriate remedy available to the claimants.

The Arbitrator after raising two issues mero motu then concluded that the Labour Officer did not have jurisdiction in terms of Section 63 of the Labour Act [Cap 28:01].  Secondly the Appellants had breached Section 124 of the Labour Act [Cap 28:01] by instituting proceedings before the Labour Officer for the same cause of action referred to the employment council.  On that basis the Arbitrator then handed down an award in the terms as referred to supra.

The Appellants were dissatisfied and noted the present appeal.  Their two grounds of appeal are outlined as follows;

The Arbitrator misdirected himself, on a question of law by holding that the Labour Officer (and consequently by extension himself) did not have jurisdiction to dispose of the dispute.

The Arbitrator misdirected himself, on a question of law, by holding that the Appellants contravened Section 124 of the Labour Act [Cap 28:01].

The Appellants’ counsel submitted that the Arbitrator misdirected herself when she disposed of the matter on the basis of issues she had raised mero motu without giving the parties an opportunity to respond to those issues.  Further the Arbitrator misdirected himself at law by holding that the Labour Officer (and by extension himself) did not have jurisdiction to entertain the matter.  Finally it was Respondent’s submission that the Arbitrator misdirected himself at law by holding that the Appellants had contravened Section 124 of the Labour Act [Cap 28:01].

The Respondent’s position was that the Arbitrator did not misdirect himself at law when he reached his conclusions.  In respect of the argument based on Section 63 (b) it was Respondent’s position that the Labour Officer and consequently the Arbitrator had jurisdiction to determine the matter.  It was Respondent’s further submission that the Arbitrator was correct when he concluded that Appellants breached Section 124 of the Labour Act after they referred the matter to the Labour Officer when the Designated Agent was seized with the matter.

It is clear that based on the evidence in the record there is substance in the Appellant’s assertion.  As correctly captured by the Appellant the Arbitrator in his ward raised two issues mero motu and then proceeded to determine the matter on the basis of these issues without inviting the parties to address him on those issues.

The record shows that the two issues referred for arbitration were;

Whether or not the unilateral withdrawal of the Respondent’s allowance by the Respondent from the claimants was lawful.

In the event that the withdrawal of the responsibility allowance is found to have been unlawful, what is the appropriate remedy available to the claimants?

The Arbitrator however in clear deviation from these issues raised two issues which issues were not raised by the partners.  The first point raised was that the Labour Officer had no jurisdiction to conciliate the dispute by virtue of Section 63 of the Labour Act [Cap 28:01].  The second point raised is that the Appellant (claimants before him) had contravened Section 24 of the Labour Act [Cap 28:01] by instituting proceedings with the Labour Office, for the same cause of action which had been referred to the employment council.  He went further to observe that the proceedings before him were a parallel process which gave rise to multiple proceedings.  It is very clear from the record that when he raised the issue the Arbitrator had not raised the issue with parties.  Neither had he invited the parties to make submissions on both issues.

In Proton Bakery (Private) Limited vs Mike Takaendesa SC 126/04 aptly referred to by the Appellant the Supreme Court held that it was a serious misdirection for the Tribunal to determine a matter on the basis of an issue raised mero motu by the court.  On the basis of the Proton Bakery case therefore I am satisfied that the Arbitrator in this case committed a gross irregularity by reaching a decision based on issues that he had raised mero motu and for which he did not invite the parties’ submissions.

In any event it is clear that the Arbitrator was wrong on both points anyway.  Section 63 (b) of the Labour Act as read with Section 101 (5) and (6) of the Labour Act provide that a labour officer may not intervene in a dispute that has been referred to a designated agent for a particular industry or under taking unless the matter is not determined in terms of the relevant Code and 30 days have elapsed.  (my own underlining).  The Appellant tendered before the Labour Court, by consent of the Respondent, the letter dated 10 December 2011 addressed to the Labour Officer (marked Annexure “L”) which letter clearly indicated that a complaint of unfair labour practice was being raised on the basis that the designated agent of the Harare Municipal Undertaking had failed to resolve the matter referred on the 2nd of November, 2011 and thirty (30) days had  lapsed.  In view of this position the Labour Officer clearly had jurisdiction.  The Arbitrator misdirected himself by holding that the Labour Officer (and by extension himself) had no jurisdiction to entertain the matter.

The arbitral ward clearly cannot stand.  It has to be set aside.  The Appellant in relief prayed that the matter be remitted back to the Arbitrator for disposal of the matter on the merits of the dispute between the parties.

In the circumstances it is ordered as follows;

The appeal be and is hereby allowed with costs.

The arbitral award dated 27th May 2013 is set aside.

The matter is remitted back to the same Arbitrator for determination of the matter on the merits.

Wintertons, Appellant’s legal practitioners