St. Giles Rehabilitation V Batsirai Mubvumbi

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/150/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 4TH MARCH 2024

In the matter between:

ST. GILES REHABILITATION

And

BATSIRAI MUBVUMBI

JUDGMENT NO. LC/H/150/24 CASE NO. LC/H/ 11/24

APPLICANT RESPONDENT

BEFORE THE HONOURABLE	MAKAMURE, JUDGE.

FOR THE APPELLANT : B.MAHUNI FOR THE RESPONDENT: G. SITHOLE

MAKAMURE J:

This is an appeal against the decision of the National Employment Council for Welfare and Educational Institutions Appeals Committee ( the Appeals Committee)which was handed down on the 7th of December 2023. In the present appeal the appellant has raised 3 grounds of appeal. The matter was heard before me on 3 March 2024.

BACKGROUND

The respondent was an employee of the appellant. The appellant then instituted proceedings against the respondent. The respondent was charged with three counts under the National Employment Code of Conduct for Welfare and Educational Institutions(NECWEI) and he was found guilty and was accordingly dismissed. Respondent appealed to the appeals committee and his appeal was upheld. Aggrieved by the decision of the appeals committee, appellant has approached this court challenging the decision of the appeals committee.

PRELIMINARY ISSUES

The respondent raised a point in limine, as a result of the new Labour Act Amendment No. 11 of 2023, to say that this court has no jurisdiction to hear this appeal. The basis of which lies with section 101 (5) of the Labour Act Chapter 28:01(the Act)(as amended). Respondent submitted that the present appeal ought to have been submitted to the labour officer and not this Court.

Respondent submitted that the Court lacks jurisdiction to entertain this present appeal at first instance against the determination of the National Employment Council for the Welfare and Educational Institutions Appeals Committee. The respondent submitted that the appeal is prematurely before this Court and the Court ought to decline jurisdiction and strike off the matter from the roll.

Respondent submitted that this point is not a mere technical point, but it is one borne out of the realization that the statutory provisions related to herein are couched in a plain and unambiguous peremptory language, which cannot be disregarded neither whose departure cannot be condoned.

The respondent relied on sentiments expressed by this Court in the case of Kutiwa v Harare Municipal Medical Aid Society LC/H/43/24 wherein the point was upheld by Kachambwa J, at page 5 of the cyclostyled judgment, the learned judge had this to say:

"The amendment has introduced an appeal to the labour officer when the proceedings at the workplace in terms of the employment code are finalized. It has therefore cut out any direct appeal to the Labour Court. The word 'may' in the amendment is referring to the choice to choose to appeal. It would be ridiculous if it were to refer to the choice of approaching the Labour Court or Labour Officer.”

From the above analysis and conclusions, there is an appeal to the Labour Officer. There is no direct appeal to the Labour Court for the Applicant. Accordingly, the point in limine must be upheld.

To cement the point the respondent added the concept of “Lex posterior derogate Priori”, which suggests that where there are two conflicting statutes the court should lean on the later statute to be superior on the basis of implied basis.

In response the appellant raised two points in which it argued that the point in limine had no merit. Appellant argued that ss 101 (5) is not the main act neither is it a full section but merely a provisio to s 101. Appellant submitted that if it was the intention of the Legislature to take away the Labour Court’s jurisdiction it would have done so in a plain, clear and unambiguous manner.

Appellant submitted rule 19 (1) of this Court’s rules Statutory Instrument 150/17 (S.I.150/17) clearly states in mandatory terms that a party willing to appeal to the court in terms of the Act, “shall” do so within twenty (21) days from the date of receipt of the decision being appealed against.

To add on the use of permissive language in the word “may”, shows that the Legislature never intended to restrict the right of appeal only to the Labour Officer. The Cornell Law School Legal Encyclopaedia states that the word “may” is an expression of possibility, a permissive choice to act or not, and ordinarily implies some degree of discretion. This contrasts with the word “shall,” which is generally used to indicate a mandatory provision. Where the relevant duty to comply with a statute is mandatory, failure to comply with it invalidates the thing done.  Where it is merely directory, the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound) – See Bennion on Statutory Interpretation (2017).

In the case of Shumba & Others vs. Zimbabwe Electoral Commission & Anor SC 11/08 , the Supreme Court held as follows: -

“I do not accept the contention that section 18 of the Zimbabwe Electoral Commission Act, as read with the State Liabilities Act, is peremptory for a number of reasons. In section 18 of the Zimbabwe Electoral Commission Act, as read with the State Liabilities Act, the word “may” as opposed to the word “shall” is used. This is indicative of a directory and not a peremptory intent of the legislature. It is the generally accepted rule of interpretation that the use of peremptory words such as “shall” as opposed to “may” is indicative of the legislature’s intention to make the provision peremptory. The use of the word “may” as opposed to “shall” is construed as indicative of the legislature’s intention to make a provision directory”.

ANALYSIS

An approach to the Labour Officer in terms of the proviso to section 101 (5) of the Act is made,for the purposes of conciliation. Conciliation can only occur if a dispute is being referred to a Labour Officer in the first instance not proceedings which have been concluded by way of a judgment handed down by the relevant NEC.

The court is of the view that there can only be an appeal or a review in such a scenario. There is nothing to conciliate where findings of fact and law have already been made. The Labour Officer is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation. Although the proviso to section 101 (5) could have been drafted better, the intention of the Legislature is not difficult to see. It is to confer powers to the Labour Officer only when there is no other tribunal or court which can exercise those powers . Where those powers are already reserved to other tribunals like in this case, the intention of the Legislature can only be given effect to by reserving appeal powers to the Labour Court. Any other interpretation will result in competing and conflicting jurisdictions which could never have been intended. There will be absurd results.

The proviso is not a stand-alone provision. It must be interpreted in its context. In terms of section 93 as amended, the Labour Officer has powers to conciliate or refer a dispute to voluntary or compulsory arbitration. Referring completed proceedings to a Labour Officer for conciliation will result in an absurdity which could never have been intended by the legislature. There will be a final decision and hence nothing to conciliate.

The ambit of the powers of a Labour Officer in terms of section 93 was determined by the Supreme Court in Sakarombe & Anor vs. Montana Carswell Meats (Pvt) Ltd SC 44/20. The court held as follows: -

“[27]The question is what dispute is a labour officer empowered to preside over in terms of s 93(1). The clear principle that emerges from the authorities in which s 93 has been considered is that his mandate is to preside over a fresh hearing wherein a complaint has been lodged against an employer or there exists a dispute between the parties. Consequently, his jurisdiction is limited to matters where there are allegations of unfair labour practices or unfair dismissal. Unfair labour practices are defined in s 8 of the Act and include a whole host of wrongs that an employer may be guilty of in the work place. This is not the complaint here.” (Emphasis added)

The court agrees with the dicta in the Montana case ( supra) which held that a labour officer is empowered to determine complaints of unfair labour practice and unfair dismissal where there has not been any procedural process that has been completed. His jurisdiction is limited to that of a tribunal of first instance. There is a presumption that the Legislature does not intend to alter the law, whether it is statutory or common law, unless it provides so in specific terms. This presumption is fundamental to the interpretation of statutory provisions. As a result, courts are enjoined as much as possible to construe statutes in a manner that seeks to reconcile seemingly contradictory provisions. It is instructive to refer to provisions of s101(5) of the Act (as amended).It provides that:

‘(5) Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

Provided that at the conclusion of such proceedings and notwithstanding anything to the contrary in an employment code, at the instance of any party aggrieved by those proceedings may appeal to a labour officer within 30 days of the conclusion of the proceedings whereupon the labour officer shall attempt to conciliate the dispute in terms of section 93 or exercise any other power provided for in that section’(My underlining).

The above provisions give an aggrieved party the choice to approach a labour officer within 30 days of the conclusion of a matter which would have been dealt with in terms of an employment code. The provisions do not oust the jurisdiction of the Labour Court. As indicated elsewhere in this judgment the proviso to s105 could have been more elegantly worded but that notwithstanding, the purpose of the Act is to ensure the expeditious resolution of labour disputes without causing conflicts in the process. The principle of interpreting a provision in its context finds support in Chegutu Municipality vs. Manyora 1996 (1) ZLR 262 (S) where the court stated as follows: -

‘“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as Lord Wensleydale said in Grey v Pearson (1857) 10 ER 1216 at 1234, “unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further”.’

CONCLUSION

When the proviso to section 101 (5) is reconciled with section 93, 89 (1), 89 (6) and 92D of the Labour Act, the only reasonable conclusion is that an appeal properly lies to this Court and that the Labour Officer does not always necessarily enjoy appellate powers on completed disciplinary proceedings. The proviso must be interpreted in its context. Respondent placed heavy reliance on the case of Kutiwa of this Honourable Court. It is trite to highlight that this court is not bound by Kutiwa v Harare Municipal Medical Aid Society(above). It is a judgment of parallel jurisdiction. The court respectfully differs with the approach adopted by this Court in the Kutiwa case (above).

In conclusion, when one holistically considers the proviso to section 101 (5) of the Labour Act as well as sections 93, 89 (1), 89 (6) and 92D, it becomes clear that the Legislature never intended to confer appellate powers on the labour officer. All these provisions must be interpreted in a harmonious manner so as to give effect to section 2A (1) (f) of the Act which provides for an interpretation in a manner which secures the just, effective and expeditious resolution of disputes and unfair labour practices. Respondent is urging the Court to consider an interpretation which considerably prolongs the resolution of the dispute in this matter by taking a winding route which will still end up in this Court. This is obstructive and should not be accepted as the correct interpretation of the law. This Court has jurisdiction to entertain the present appeal and the point in limine ought to be dismissed.

In the result the point in limine has no merit and is accordingly dismissed with no order as to costs as the point of law was a necessary evil to the legal fraternity so as to clear the confusion surrounding effect of the amendment.

Merits.

Appellant raised 3 grounds of appeal namely that the Appeals Committee erred and misdirected itself by assuming powers of review which are not provided for in terms of the code of the conduct. Appellant submitted that the failure by the respondent to appoint a person as per the code of

conduct was erroneous. Appellant submitted that the Appeals Committee dealt with a matter in which it had no jurisdiction to hear. Appellant went on further to quote some authorities which distinguish an appeal and a reviewable case.

Appellant gave reference to S vs. Maphosa HH-323-13 where the court said that the essential difference between review and appeal procedure is that where the grievance is that the judgment or order of the magistrate is not justified by the evidence, and there is no need to go outside the record to ventilate the particular grievance, then the more appropriate procedure to follow for relief is by way of appeal.

In the case of Zimasco 141/155 Private Limited vs. Maynard Farai Marikano SC 6/14, on page 6 of the cyclostyled judgment, the court articulated the position as follows: -

"The fact that provision has been made for disputes to be first referred to a labour officer is in my view irrelevant. Review proceedings are concerned with the manner in which a decision is taken and not its merits. If for example a disciplinary authority had no jurisdiction to hear a particular matter, or was biased or its decision grossly unreasonable, the person aggrieved is empowered to approach the Labour Court and apply for the review of the proceedings”

In response to this the respondent submitted that that the ground of appeal was fatally defective as it was not clear as to what was being challenged. Respondent submitted that there was absence of any clarity as to which grounds of the appeal were specifically review grounds ,and therefore this ground of appeal ought to be dismissed.

Respondent submitted that the code of conduct applicable to the appellant itself clothes the NECWEI with wide appeals powers which ordinarily entitles the NECWEI Appeals Committee to exercise review powers in the process of determining an appeal. See s 10.5 of the code of conduct, for what constitutes wide appeal. See Watchtower Bible & Tract Society of Pennsylvania v Drum Investments (Pvt) Ltd 1993 (2) ZLR 67 (S).

The Court is of the view that it is clear from the record of proceedings particularly the ruling by the Appeals Committee, that it dealt with a procedural matter and concluded that the procedural irregularity was so gross as to vitiate entire proceedings.

The Court is in no doubt that the matter was determined and disposed of on a review ground placed before it. It is a matter of substance not form. A review ground cannot become an appeal ground because an appellant has called it so. It remains a review ground. A review in labour matters is a statutory remedy which only the Labour Court entertains in terms of section 92EE (1) of the Labour Act. Nowhere in the applicable Code, which appears on page 39 – 62 of the notice of appeal, is there a provision empowering the NEC to deal with review matters.

It is only the Labour Court which has exclusive review jurisdiction in labour matters in terms of section 89 (6) of the Labour Act in the first instance. No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1) of section 89. See Stanley Nhari vs. Mugabe & Others SC 161/20 and Chingombe & Anor vs. City of Harare & Others SC 177/20.

A proper reading of the entire clause 10 of the National Employment Code of Conduct for The Welfare and Educational Institutions, clearly shows that the appeals committee does not have the powers to hear reviewable issues, and in any event, even if the Code provided for review, it will be ultra vires the parent Act. In the result ground number one succeeds.

The second ground of appeal relates to the issue that the Appeals Committee erred and misdirected itself in finding that the procedural irregularity vitiated the entire proceedings without actually proving the prejudice that was suffered by the respondent.

The Appeals Committee failed to demonstrate that the irregularities prejudiced respondent. There was no demonstration by the respondent that the performance of a role reserved for the immediate Supervisor by the Medical Director at the suspension stage prejudiced him. It is trite that a party cannot allege prejudice and not demonstrate the prejudice suffered. See Duly Holdings vs. Chanaiwa 2007 (2) ZLR 1 (S)

Grounds two and three are also stemming from ground number one, which the court finds to be a procedural issue. Therefore, it suffices to conclude that the submissions that were motivated by the appellant have merit. The Appeals Committee could not have dealt with review issues but is only limited to appeal matters as highlighted by clause 10 of the code of conduct for the Welfare and Educational institutions. Accordingly ground two and three succeed.

Conclusion

In terms of the Labour Act, it is only the Labour Court which is vested with inherent review powers, even in a situation where a certain code of conduct gives those powers to an appeals committee. In that case it will mean that the code of conduct is ultra vires the parent Act and not applicable. In this case the Court finds that the code does not give the Appeals Committee the power to hear review matters. In the result appellant has clearly motivated his appeal.

The Court finds that the grounds of appeal are clearly merited and accordingly the appeal must be granted.

In the result it is ordered as follows:

The appeal be and is hereby granted.

The decision of the National Employment Council for the Welfare and Educational Institutions Appeals Committee be and is hereby set aside and be substituted with the following: The appeal be and is hereby dismissed. The decision of the respondent’s Appeal Authority confirming the dismissal of the appellant is confirmed’.

There is no order as to costs.

SCANLEN & HOLDERNESS, APPELLANT’S LEGAL PRACTITIONERS. MAWONERA ATTORNEYS, RESPONDENT’S LEGAL PRACTITIONERS.