Tribac (Pvt) LTD V F. Nyarucha & 3 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/658/2016
HARARE, 21 MARCH 2016
CASE NO. LC/H/REV/123/15
JUDGMENT NO. LC/H/658/2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/658/2016

HARARE, 21 MARCH 2016			CASE NO. LC/H/REV/123/15

AND 21 OCTOBER 2016

In the matter between:-

TRIBAC (PVT) LTD					Applicant

And

F. NYARUCHA & 3 OTHERS				Respondents

Before Honourable R.F. Manyangadze, J

For Applicant		Ms W. Chirongoma (Legal Practitioner)

For Respondents		Ms L. Shambamuto (Legal Practitioner)

MANYANGADZE, J:

This is an application for the review of a determination handed down by the National Employment Council Tobacco Industry Grievance and Disciplinary Committee (GDC) on 29 October 2015.  The determination ordered the reinstatement of the respondents to their employment with the applicant, or payment of damages in lieu of reinstatement.

The four respondents were employed by the applicant, a company in the tobacco industry, in various capacities. Two of the respondents were on permanent contracts of employment, while the other two were on seasonal contracts.

The respondents were arrested on allegations of defrauding small – scale tobacco growers, who were clients of the applicant.  They were released on the same day, after applicant withdrew the criminal charges.  The following day, 4 June 2015, the respondents reported for work, and tendered their resignations.  The respondents alleged that they resigned under duress, and such resignation amounted to constructive dismissal from employment.

A Works Council hearing conducted on 24 July 2015 issued a determination to the effect that the resignations were properly made. This prompted an appeal to the GDC, whose proceedings are the subject of this application for review.

The grounds for review are as follows:

“1.	Respondents noted an Appeal to the Grievance and Disciplinary Committee of the National Employment Council for the Tobacco Industry out of time therefore the 5th Respondent erred at law in presiding over a matter improperly before him.

2.	The Appeal to the Grievance and Disciplinary Committee was noted by F. Nyarucha on behalf of the three other Respondents.  This was highly irregular in that F. Nyarucha lacks the capacity to act on behalf of the other Respondents.  Therefore the three other Respondents being Elia Mpakula, Trinity Dzapasi and Thomas Zacharia were not properly before the Grievance and Disciplinary Committee.  The award in respect of 2nd to 3rd Respondents is a nullity at law.

3.	It was incompetent for the Grievance and Disciplinary Committee to hear and determine the matter as an appeal in light of the fact that there never was a determination by the employer to dismiss.  There was no sound legal foundation for noting an appeal. One cannot appeal against termination of employment at his instance,.  In the matter at hand 1st to 4th Respondents appealed against termination of employment at their instance.

4.	The Grievance and Disciplinary Committee on the 29th of October 2015 served Applicant with yet another determination described as “replacement”. This document had the effect of amending the operative part of the determination of the 12th of October 2015. It does not state at whose instance the correction was made.  The error did not appear ex-facie the first determination.

5.	The correction of the determination is to the detriment of Applicant as it was never accorded an opportunity to make submissions before the determination of the 29th of October 2015 was made in respect of clauses 2 and 3 thereof.

6.	The correction has the effect of altering the substance of the determination of the 12th of October 2015 as it introduced the issue of quantification of damages in lieu of reinstatement in respect of 1st and 2nd Respondent.

7.	Applicant has a reasonable apprehension of bias arising from the fact that after the Grievance and Disciplinary Committee had issued a determination and had become functus officio.  The 5th Respondent in his capacity as Chairman of the Grievance and Disciplinary Committee wrote to Applicant advising it that 1st Respondent was ready and willing to resume duty.  This demonstrates that the Grievance and Disciplinary Committee had not been impartial when it determined the matter.”

The respondents raised a point in limine to the effect that the applicant should have cited the GDC as the 5th respondent.  They averred that failure to do so constituted a fatal irregularity, which warrants dismissal of the application for review.

The applicant, in response to the preliminary point, submitted that the non-citation of the GDC cannot vitiate its application.  The applicant referred to rule 87 of the High Court Rules, which reads:

“87 (1) No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

The applicant reasoned that the Labour Court exercises the same powers of review as the High Court, and would be similarly guided by this provision.

Applicant further contended that it was improper to join the GDC, whose role was that of a disinterested adjudicator.  This is reflected in paragraph 2.8 of the applicant’s heads of argument, which states:

“The role of the Grievance and Disciplinary Committee is to act as umpire to the dispute between the parties.  This is due to the fact that the Committee is an impartial body that should not align itself to any of the parties it cannot harbor any interest neither can it be prejudiced by the outcome of these proceedings.  See Morgan and Another v Salisbury Municipality 1935 AD 167.”

I am inclined to accept the position argued by the applicant.  The GDC considered the matter in casu as a quasi – judicial body.  It made a judicial decision, and held judicial proceedings, whose correctness it would not, ordinarily, be expected to argue and defend in an appellate court.

I find no merit in the point in limine, which is accordingly dismissed.

I now turn to the merits of the application.  It raises 7 grounds of review, which I will deal with in the order in which they are presented.

Ground 1

The applicant avers that the respondents’ appeal to the GDC was out of time and was therefore improperly before it.

There is no elaboration on this ground for review.  It is not shown what timelines were flouted.  In fact, no further averments were made under this ground.  The heads of argument did not advert to it.  Neither did the oral submissions.  It seems it was abandoned, without the parties expressly saying so.

There being no submissions to consider, this ground for review is deemed to have been abandoned.

Ground 2

This ground challenges the locus standi of the 1st Respondent vis avis the 2nd, 3rd and 4th Respondents.

The remarks under Ground 1 equally apply under Ground 2. This issue was not pursued in the arguments submitted by the parties, both written and oral.  There are no submissions on the basis of which the court can make an appropriate determination. This ground for review is, again, deemed to have been abandoned.

Ground 3

There was some considerable argument under this ground. The contention is that there was no determination by the employer, against which the respondents appealed.  Employment was terminated at the respondents’ instance, through resignation.  The applicant averred in paragraph 3.1 of its heads of argument;

“3.1	It is common cause that the Respondents were not dismissed. They resigned and their letters to that effect are on the record.  One cannot then appeal against their own decision to terminate employment.  Accordingly the appeal was improperly before the committee.”

On the other hand, the respondents averred that there was a determination, made by the Works Council, which gave rise to the appeal to the GDC.  This point is expressed in paragraph 2.6 of the respondent’s heads of argument;

“2.6.	Be that as it maybe it is submitted that the appeal to the NEC GDC was proper because there was a decision which was made by the applicant’s works council.  Hence there was a valid appeal which was prompted by a decision which the respondents were aggrieved with.”

The record shows that, in its summary of the factual background to the matter, the GDC indicated how the dispute came to it on appeal.  There was a complaint to the NEC by the respondents, regarding their disputed resignations.  The NEC advised the applicant of the complaint and that there was need to convene a Works Council meeting to hear the matter, in terms of the Tobacco Industry Code of Conduct.  A Works Council meeting was then convened on 24 July 2015.  The determination was that the resignations by the respondents were proper.  This important sequence of events is clearly captured on page 2 of the GDC determination as follows:

“The NEC wrote a letter to the respondent on 9 July 2015 advising that the NEC was in receipt of letters of complaint from the Trade Union on behalf of the four appellants and the respondent needed to convene a Works Council meeting to hear the matter in terms of Statutory Instrument 322 of 1996 (Tobacco Industry Code of Conduct.  The respondent confirmed that a Works Council meeting was going to be convened in an undated letter addressed to the NEC Designated Agent.  A Works Council meeting was convened on 24 July 2015 and it was concluded, by way of a casting vote by the Works Council Chairman that the resignations by the four appellants will stand.  The verdict was communicated to the Trade Union representing the appellants on 6 August 2015.” (Underlining added)

The respondents were therefore aggrieved on the decision of the Works Council, which held that they were not forced to resign.  In other words, it  dismissed their claim or complaint of constructive dismissal.  That is the decision that prompted their appeal to the GDC.  It is, in the circumstances, incorrect to say the appeal was improperly before the GDC.  Consequently, ground 3 cannot be upheld.

Ground 4, 5 and 6

These grounds will be considered together as they relate to the same issue.  The issue raised by the applicant is that it was improper for the GDC to replace its initial determination with a subsequent determination.

The record shows two GDC determinations, dated 12 October 2015 and 29 October 2015.  The second determination, in a note prefixed “NB*”, is described as;

“This is a replacement of the determination issued on 12 October 2015.”

A perusal of the two determinations shows that they are exactly the same, save for paragraph 2. It is only paragraph 2 of the operative part that was altered.  In the first determination, the operative part reads as follows:

“1.	The appeal succeeds.

2.	F. Nyarucha, T. Zacharia, T. Dzapasi and E. Mpakula are to be considered for employment in the 2016 season like any other season.”

In the second determination, the operative part reads as follows:

“1.	The appeal succeeds.

2.	Those appellants who were on seasonal contracts of employment are to be considered for employment in the 2016 season like in any other season.

3.	Those appellants who were on a contract without limit of time must be reinstated without loss of pay and benefits with effect from date of forced resignation or are to be paid damages in lieu of reinstatement.  If reinstatement is no longer possible then the parties are to agree on the damages failure of which they may refer the matter to the NEC Grievance and Disciplinary Committee for quantification of the damages.”

Applicant’s grievance is that the GDC, having handed down its award on 12 October 2015, no longer had the mandate to amend and replace it with another award.  It was functus officio.  The amendment was not of the type that could be mero motu corrected as an error.  It substantially changed the award.  That should not have been done without the applicant being given an opportunity to make representations.

The respondents, on the other hand, contended that there was an error in the initial award.  The status of the affected employees was not the same.  Some were seasonal employees and others were permanent employees.  The award had to distinguish these categories, as the consequences would be different for each category.

Both parties made reference to the case of Mutehwa v Mutehwa & Another 2001 (2) SA 193, which was cited with approval by the Zimbabwean Supreme Court in Austin Munyimo v Elizabeth Tauro SC 41/13.  The respondents made particular reference to the remarks of the Supreme Court, which were that;

“… the error should appear on the record but only in cases where the Court acts mero motu or on the basis of an oral application made from the Bar for rescission or variation of the order.  For obvious reasons, in such cases the Court would have before it the record of the proceedings only.  The same interpretation cannot, in my respectful view, apply to cases where the Court is called upon to act on the basis of a written application by a party whose rights are affected by an order granted in its absence.  In the latter instance the Court would have before it only the record of the proceedings but also facts set out in the affidavits filed of record.  Such facts cannot simply be ignored and it is not irregular to adopt such a procedure in seeking rescission.  In fact, it might be necessary to do so in cases such as the present, where no error could be picked up ex facie the record itself.  In my view, the failure to show that the error appears on the record of the proceedings before Kruger AJ cannot constitute a bar to the applicant being successful under Rule 42 (1) (a).  It is not a requirement of the Rule that the error appear on the record before rescission can be granted.  Therefore, I do not, with respect, agree with Erasmus J’s conclusion that the Rule requires the applicant to prove the existence of an error appearing on the record and that the Court considering rescission is, like an appeal Court, confined to the record of the proceedings.” (Underlining added)

The remarks by the Supreme Court, were in relation to the question of whether the error sought to be corrected is one that appears on the record only or from facts set out in affidavits accompanying an application for rescission.  It then held that rescission of judgment could be granted even if the error in question was not ex facie the record.

In the instant case, it seems to me the issue of the status of the respondents is one not in dispute.  It is clear, ex facie the record, some were seasonal workers and others were permanent workers.  The question rather, should be whether the amendment that was made could be done mero motu.

Where the error is ex facie the record, a mero motu amendment is permissible. This is clear from the emphasised portion of the passage from the Munyimo case, supra.  Such a mero motu amendment will, of course, depend on the nature of the error sought to be amended.

Once it is accepted as an established fact, that there was a mixture of permanent and seasonal workers, consequences would, inevitably, be different. Once the GDC allowed the appeal, as it did, the resultant effect was a reversion to the status quo ante. The status quo ante would be the employment of the dismissed employees.  However, the conditions of such employment would be different, depending on whether the employee was on a seasonal contract or permanent contract of employment. The GDC was correcting an absurdity in its initial determination as submitted I paragraph 4.3 of respondents’ heads of argument;

“Taking into account that the Tribunal had observed that some of the employees were on permanent employment and others were seasonal workers it made no sense for them to be lumped into one basket for them to be considered for the next season of 2016 when some were employed on a permanent basis.”

Having upheld the respondents’ appeal against their dismissal, the logical natural, and inevitable consequence of that decision was their re-employment. Paragraph 1, which is the same in both determinations of the GDC, is what really constitutes the decision of the GDC.  That decision was to allow the appeal.  The subsequent paragraphs are an inescapable consequence of that decision.   The correction, in my view, was done to properly reflect that consequence. It cannot be said to be an alteration of the substance of the decision.

Even if the GDC had simply determined “The appeal succeeds”, without adding the subsequent paragraphs, applicant would still be faced with the same consequences.  On the basis of that determination, the respondents would be entitled to approach the applicant for re-employment, in their respective capacities. In other words, what the GDC did was to simply clarify the consequences flowing from its decision, not to alter its substance.  In the circumstances, there is merit in the respondents’ contention that the mero motu correction of the GDC determination was properly made.

Ground 7

Under this ground for review, the applicant is alleging bias on the part of the GDC Chairman.  The allegation of bias is premised on the averments made in grounds for review 4, 5 and 6.  These have been considered above, and have not been upheld.  If the basis of the alleged bias has been found to be without merit, ground 7 cannot be upheld.

In the circumstances, the application for review cannot succeed.  It is accordingly ordered that;

The application for review be and is hereby dismissed.

The applicant shall bear the respondents’ costs.

C Kuhuni Attorneys, applicant’s legal practitioners

Matsikidze and Mucheche, respondents’ legal practitioners