WEST Foods Distributions Network V Beullah Muchekeni

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/451/14
HELD AT HARARE 8TH JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/451/14

HELD AT HARARE 8TH JULY 2014			CASE NO LC/H/53/14

& 1ST AUGUST 2014

In the matter between:-

WEST FOODS DISTRIBUTIONS NETWORK			Appellant

And

BEULLAH MUCHEKENI						Respondent

Before The Honourable B.S. Chidziva, Judge

For Appellant		Mr B Chidziva (Legal Practitioner)

For Respondent		Miss L Shambamuto (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the arbitral award that was issued by Honourable Arbitrator Kare on 16 January 2014.  The award reads as follows

“Having carefully considered both oral and written submissions from both parties i hereby declare that

Claimant was unfairly dismissed

In light of this, I hereby order respondent to reinstate claimant with immediate effect without pay and benefits during the period of dismissal.  If reinstatement is not an option, respondent is alternatively ordered to pay damages to claimant for the employment lost in terms of section 13 of the Labour Act.  The quantum of damages is to be negotiated by the parties failure to which any party may apply to the arbitrator for quantification.

The brief history of the matter is that the respondent was employed by the appellant as a Book keeper in August 2011 and she was suspended from    duty in October 2012 for alleged poor performance.  Respondent was dismissed from employment in October 2012.   The respondent then filed her appeal with the National Employment Council in December 2012.  In July 2013 the respondent took up the matter to the Labour Officer in order to have the matter resolved.  A certificate of no settlement was issued at conciliation and the matter was then referred for arbitration.

The appellant’s grounds of appeal are that

The Honourable Arbitrator misdirected himself at law in failing to appreciate that in terms of section 101 (5) of the Labour Act no Labour Officer shall intervene in any dispute or matter which is liable to be the subject under an employment Code of Conduct.  Therefore this matter was improperly placed before a Labour Officer and the Arbitrator lacked jurisdiction.

The Honourable Arbitrator erred in failing to appreciate that on the facts, the Labour Officer failed to comply with section 98 (4) of the Labour Act in that the Labour Officer did not consult the appellant in coming up with the terms of reference to arbitration.

The Honourable Arbitrator erred at law in failing to appreciate that the issue of the arbitrator’s jurisdiction it being a matter of law could be raised at any time even for the first time on appeal.

The Honourable Arbitrator misdirected himself on the facts such misdirection at law in holding that the respondent was unfairly dismissed.

The dismissal was in accordance with the law.  The respondent was charged, convicted and dismissed in accordance with a registered Code of Conduct.

The Honourable Arbitrator grossly misdirected himself on the facts such misdirection amounting to  a misdirection at law when he concluded that the appellant had developed a bad habit of issuing warnings without any hearings being conducted because prior to the issuance of a warning the respondent was called to a meeting to explain her performance.  A hearing was convened prior to the issuance of a written warning.

It is on these grounds that the appellant prayed that the appeal should

be allowed with costs and that the arbitral award issued by Arbitrator Kare on 12 December 2013 be set aside.

The respondent on the other hand told the court that

Section 101 (5) of the Labour gave the Labour Officer jurisdiction to deal with this matter.

Lack of jurisdiction was not a term of reference placed before the arbitrator.

The respondent therefore prayed that the appeal should be dismissed.

It is common cause that

A disciplinary hearing was conducted and the respondent was dismissed from employment

The  respondent took up the matter on appeal before a Senior Designated Agent.

Whilst the matter is still pending before the Designated Agent the respondent took up the matter for conciliation and eventually for arbitration.

An arbitral award was then made in favour of the respondent.

To start with this court will have to decide whether the matter was

properly placed before the Labour Officer and the arbitrator.  Section 101 (5) of the Labour Act states as follows

“(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.

(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 intervenes in any such proceedings.

(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 employee or employer concerned may refer such matter to a Labour Officer, who may then determine or otherwise determine the matter in accordance with section ninety three.”

This matter was referred to the Senior Designated Agent under the

employment Code of Conduct.  The appeal has not been withdrawn.  The respondent has not shown any proof of the follow ups she made with the Designated Agent.  The respondent cannot have two processes on the same action.

In the circumstances therefore this court finds that the matter was improperly placed before the Labour Officer and the arbitrator had no jurisdiction to deal with the matter.  The respondent should have exhausted the domestic remedies before approaching the Labour Officer.

Accordingly it is hereby ordered that;

The appeal is allowed.

The arbitral award issued by Honourable Arbitrator Kare on

12 December 2013 be and is hereby set aside.

Each party to bear its costs.

Kantor & Immerman, appellant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners