Tendai Marumisa v ZETDC (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/99/13
HELD AT HARARE 25TH MARCH 2013
CASE NO
JUDGMENT NO LC/H/99/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/99/13

HELD AT HARARE 25TH MARCH 2013			CASE NO LC/H/760/11

TENDAI MARUMISA					Appellant

ZETDC (PVT) LTD						Respondent

Before The Honourable G Musariri, President

For Appellant		Mr T Marume, Attorney

For Respondent		Mr S.A. Tawona, Attorney

MUSARIRI, G:

On 29th August 2011 the Honourable C Kabasa made an arbitration award.  In terms thereof, he dismissed Appellant’s claims and referred the matter to Respondent’s disciplinary committee for a hearing.  Appellant was aggrieved by the award.  He then appealed to this Court against the award.  A single ground of appeal was raised thus,

“1.	The Arbitrator erred on a question of law in the finding that the employer has the jurisdiction to conduct the employee’s disciplinary hearing when in fact the matter was referred to the Ministry under section 101 (6) of the Labour Act [Chapter 28:01].”

In oral argument, Appellant’s attorney raised two (2) questions.

Whether the matter was properly referred to a Labour Officer (Conciliator)?

Appellant based his case on the provisions of section 101 (6) of the

Labour Act Chapter 28:01 (hereafter called the Act).  It provides that,

“(6)	If a matter is not determined within thirty days of the date of the

notification referred to in paragraph (e) of subsection (3), the employer or employee 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.”

Subsection (3), cross – referenced above states that,

“(3)	An employment code shall provide for –

(e)  the notification to any person who is alleged to have breached

the employment code that proceedings are to be commenced against him in respect of the alleged breach;”

Appellant argued that he was notified of proceedings in his suspension letter dated 19th October 2010.  He subsequently referred the matter to a Conciliator on 2nd February 2011. A period of thirty days had lapsed.  A determination had not been made by Respondent’s disciplinary committee.  Accordingly, so he argued, he was within his rights to refer the matter to a Conciliator in terms of section 101 (6) of the Act.

Respondent’s attorney disagreed with Appellant’s argument.  He stated that Appellant was notified of proceedings by letter dated 15th November 2010.  A hearing was convened on the 9th December 2010.  At the hearing, Appellant sought a postponement to enable his attorney to attend the hearing. The postponement was granted.  At that time Respondent was well within the thirty day limit was referred to in the Act.  What caused the matter to extend beyond the limit was the postponement of the matter at Appellant’s instance.  Respondent argued that in these circumstances Appellant could not turn around and seek to oust Respondent’s jurisdiction by referring the matter to a Conciliator.

Appellant replied by pointing out that section 101 (6) is a “non-fault” provision.

Once the time limits are exceeded, Appellant had the unfettered discretion to refer the matter to a Conciliator.

I agree with Respondent that the key initial date is the 15th November 2010.  The letter of suspension dated 19th October 2010 simply suspended Respondent pending investigating.  It did not lay a specific charge.  Neither did it set a date of hearing.  The letter dated 15th November 2010 laid specific charges in terms of Respondent’s Code of Conduct.  It further set the date and venue of hearing of the matter.  I consider that it is the “notification” contemplated by both subsections (3) )e) and (6) of section 101 of the Act.  The question then becomes whether an employee is permitted to use delays created by him, to oust the employer jurisdiction in disciplinary matters.  On this point the Arbitrator found that,

“The Claimant does not refuse that he made the requests for the postponement of which the Respondent facilitated to allow legal representation made.  A technical breach was made in order to accommodate the request of the Claimant but the procedural error would not have affected the outcome of the case.”

On that basis the Arbitrator remitted the matter back to Respondent’s disciplinary committee.  I agree with the Arbitrator’s approach.  The letter and spirit of the provisions in question is to provide relief for undue delays in the determination of disciplinary matters.  A delay occasioned by an employee cannot in all good conscience, be used by the same employee to oust the employer’s jurisdiction.  To hold otherwise would render disciplinary proceedings a hostage of wily schemes by parties bent on forum shopping in the hope of securing favourable verdicts.

Whether the employer could resume jurisdiction after referral under s.

101 (6) of the Act.

The Act itself in section 101 (6) permits the Conciliator to “determine or otherwise dispose of the matter…”  These are broad powers given to the Conciliator.  A Conciliator may consider that the matter has been, prematurely or otherwise improperly, referred to him.  It is permissible within his broad powers to remit a matter back to the employer’s disciplinary committee.  The Conciliator in casu chose this route.  Thus the remittal was proper.

All in all I find that the appeal lacks merit.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT