Travel House (PVT) LTD v Jacqueline Mawadza & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MC/13/2016
MUTARE, 20 MAY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/MC/13/2016

MUTARE, 20 MAY 2016					     CASE NO. LC/MC/54/15

AND 8 JULY 2016

In the matter between:-

TRAVEL HOUSE (PVT) LTD			Appellant

And

JACQUELINE MAWADZA			1st Respondent

And

MERCY HOGO					2nd Respondent

Before Honourable L.M. Murasi, Judge

For Appellant		Mr B.Maruva (Legal Practitioner)

For Respondents		Mr W. Makhuyana (Legal Practitioner)

MURASI J:

Most of the facts in this case are common cause though the matter has a long history.  For the sake of brevity I will detail the facts as follows.  Respondents were previously employed by a company styled Mitchell Cotts Travel in Mutare. When that company closed, respondents were then employed by the appellant on new contracts.  Appellant and respondents agreed that there was no business in Mutare and considerations were made to close that branch.  Appellant informed the respondents that it would continue paying their salaries pending the finalisation of a retrenchment package.  Appellant offered a retrenchment package which was rejected by the respondents. Respondents referred the matter to a Labour Officer who referred it to arbitration. It came before Honourable Chibaya.  During the proceedings before Arbitrator Chibaya, appellant brought disciplinary proceedings against the respondents who did not attend the hearing.  Respondents were found guilty and discharged.  Respondents took this matter up and it ended in further arbitration proceedings before Arbitrator Zhou.  The arbitrator found in favour of the respondents and the appellant has approached this Court for relief.

Appellant’s grounds of appeal can be summarised as follows:

That the arbitrator erred when he failed to find that by establishing their own company, respondents had effectively repudiated their contracts of employment with appellant.

That the arbitrator had erred in failing to find that the respondents had failed to attend the disciplinary hearing and their reliance on section 124 of the Labour Act was incorrect.

That the arbitrator had failed to understand the reasons for respondents’ dismissal.

That the arbitrator erred and misdirected himself at law in failing to come to a conclusion that section 124 of the Labour Act [Chapter 28:01] does not prohibit multiple proceedings being initiated.

That the arbitrator grossly erred at law in failing to hold that the retrenchment process had failed and that there was no legal bar against appellant from initiating and concluding an internal disciplinary procedure hearing in terms of the code of conduct.

The arbitrator erred and grossly misdirected himself in not coming to the conclusion that the respondents’ contracts had been terminated as such no arrear wages could legally be paid as there was no employer/employee relationship between the parties.

Mr Maruva, for the appellant, stated that he largely abided by the documents filed of record.  He further stated that the arbitrator’s interpretation of section 124 of the Labour Act [Chapter 28:01] was clearly incorrect.  It was submitted that the formulation of that section did not amount to a prohibition of holding internal proceedings which were conducted in terms of a Code of Conduct. Mr Maruva argued that a reading of the section shows that it limits actions conducted in terms of the Labour Act and not those carried out in terms of a Code of Conduct.  It was further argued that the appellant had correctly instituted the proceedings against the respondents who had willfully not attended the said proceedings and thus the arbitrator was wrong in making a finding that appellant had instituted multiple proceedings.  It was further stated that the respondents had failed to exhaust internal remedies before seeking relief through arbitration.  Mr Maruva stated further that respondents had repudiated their employment contracts by forming their own company which was known as Real Sky Travel and the arbitrator had taken a cursory look at this point in his award.  It was finally submitted that the disciplinary hearing which the respondents had not attended effectively terminated respondents’ employment with the appellant.

Mr Makhuyana for the respondents submitted that the resolution of the appeal turned on a proper appreciation of the facts.  He stated that after the first arbitral award, the appellant had proceeded to pay the respondents’ salaries which included the month of October 2014.  It was argued that, if indeed appellant had dismissed the respondents in September 2014, why would it pay the October 2014 salaries?  It was submitted that it was after the payment of their salaries that the appellant wrote letters to the respondents informing them that they had been dismissed pursuant to a disciplinary hearing.  It was further argued that the purported hearing was a sham as no evidence was adduced to show that the respondents were guilty of the charges levelled against them as the nature of the case, misappropriation of funds, would require the calling of evidence.  It was further submitted that the Code of Conduct did not provide for the rescission of a default judgment and therefore the respondents would not be expected to exhaust the local remedies when such a procedure was not in existence.  Mr Makhuyana further stated that appellant was estopped from denying that there was an employer/employee relationship after September 2014, when appellant paid respondents’ salaries up to October 2014.

It is my view that it is pertinent to consider the provisions of section 124 of the Act.  This is so for two reasons. The first reason is that respondents aver that they were informed of the disciplinary hearing which is the subject of this appeal when they were attending the initial arbitration proceedings.  It is alleged that the respondents informed the appellant that they would not attend the proceedings because what the appellant was doing was instituting multiple proceedings which was against the spirit of section 124 of the Labour Act.  They alleged that the holding of that hearing was therefore tainted with illegality.  The second reason is that the second arbitrator found that the appellant was in the wrong to institute the proceedings as this was prohibited by section 124 of the Act.  Appellant is of the view that the interpretation accorded to the section by the arbitrator was errenous.

Section 124 of the Labour Act [Chapter 28:01] provides:

“Protection against multiple proceedings

Where any proceedings in respect of any matter have been instituted, completed or determined in terms of this Act, no person who is aware thereof shall institute or cause to be instituted or shall continue any other proceedings, in respect of the same or any related matter, without first advising the authority, court or tribunal which is responsible for or concerned with the second – mentioned proceedings of the fact of the earlier proceedings.”

Mr Maruva’s argument was that proceedings that were carried out were not in terms of the Labour Act but in terms of a Code of Conduct.  I am of the view that the argument lacks merit for the following reasons.  Firstly, Codes of Conduct are made in terms of section 101 of the Act.  Section 101 (3) provides for what should be contained in a Code of Conduct.  The Code of Conduct should be registered with the Registrar in terms of the Act.  Any appeals from the decisions made in terms of the Code of Conduct are dealt with in terms of the Act.  Therefore, the first argument by appellant’s Counsel that the proceedings of the disciplinary committee fell outside the ambit of section 124 must fall by the wayside.

What then are the implications of holding such a hearing without notifying the court or tribunal dealing with the initial proceedings? Are the provisions of section 124 peremptory or merely directory?  In Liverpool Bank vs Turner (1861) 30 LJ Ch 379, Lord Campbell had this to say:

“No universal rule can be laid down as to whether a mandatory enactment shall be considered as directory only or obligatory with an implied nullification for disobedience.  It is the duty of the courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.”

In casu, section 124 prohibits the institution of fresh proceedings between the same parties on the same or related issues without informing the trier of fact in the earlier proceedings.  The first requirement is that the person must be aware that there are such proceedings.  The section does not however give any sanctions for non-compliance.  It is my view that the attendant sanction should be or is left to the discretion of the court, that is to determine what effect should be for non-compliance.  In my view, the enquiry is not whether there has been ‘adequate’ or ‘substantial’ compliance, but rather whether there has been compliance.  I am of the further view that in making such a decision as to whether there has been compliance with the provision, the object sought to be achieved by the section and whether the object has been achieved are of great importance.  The heading of the section reads “Protection against multiple proceedings”. Whilst it is trite that headings do not form part of the statute, it has now been accepted that they assist in determining what the legislature intended.

I hold the view that the Legislature’s intention was to stop litigants from ploughing the same field twice or to forum shop.  The further intention of the Legislature must have been to prevent different and conflicting decisions being delivered on the same issue.  A proper construction of section 124 leads to the intention of the lawgiver.  The section clearly refers to “the, same or any related matter” depicting the fundamental issue that litigants who are party to same proceedings should not institute any other proceedings without informing the presiding person.

What then are the consequences of non-compliance? A statutory requirement construed as peremptory normally needs exact compliance for it to have the stipulated legal consequences and any purported compliance falling short of that results in a nullity.  The section clearly uses the “shall” and this denotes the fact that it is peremptory.  Therefore, a litigant who is part of proceedings “shall not” institute any other proceedings without notifying the person dealing with the first proceedings.

As stated elsewhere in this judgment the intention of the Legislature must have been to prevent inconsistent decisions arising out of the same issue.  This is what transpired in this case.  The first arbitrator ruled that respondents were still appellant’s employees as at 17 October 2014.  Meanwhile, appellant had instituted proceedings which purportedly “dismissed” the respondents in September 2014.  However, the appellant goes on to comply with the order of the arbitrator in November 2014 well after it had purportedly “dismissed” the respondents.  What is clear is that the disciplinary proceedings held by the appellant were a nullity, for failure to comply with the provisions of section 124 of the Act.  This therefore means that the decision of Arbitrator Zhou that the respondents’ employment was unlawfully terminated cannot be faulted.  The appellant does not take issue with the amount payable to the respondents as these were arrear salaries.  It will therefore not be necessary to deal with the other grounds of appeal.

In the result, for the aforestated reasons, the Court finds that the appeal is devoid of merit and ought to be dismissed.

The Court makes the following order;

The appeal, being devoid of merit, is accordingly dismissed.

The arbitral award of Honourable Zhou be and is hereby upheld.

Each party to meet its own costs.

Mugwadi & Associates, appellant’s legal practitioners

Bere Brothers Legal Practitioners, respondents’ legal practitioners