Zimbabwe Consolidated Company (Pvt) Ltd v Levy Chiota

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/09/2022
HELD AT HARARE ON 16TH NOVEMBER 2021
CASE NO. LC/H/112/21
AND 14 JANUARY, 2022
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IN THE LABOUR COURT OF ZIMBABWE               JUDGMENT NO. LC/H/09/2022

HELD AT HARARE ON 16TH NOVEMBER 2021       CASE NO. LC/H/112/21

AND 14 JANUARY, 2022

In the matter between:-

ZIMBABWE CONSOLIDATED COMPANY (PVT) LTD            	Appellant

AND

LEVY CHIOTA								Respondent

Before the  Honourable Makamure, J.

For the Appellant 	: Mr J.R. Tsivama (Legal Practitioner)

For the Respondent	: Mr D.C. Kufaruwenga (Legal Practitioner)

MAKAMURE J:

INTRODUCTION

This is an appeal against the decision of a Disciplinary Authority set up by the appellant.

The respondent was employed by the appellant in a senior position of Mine Manager. Allegations of misconduct were levelled against him. Disciplinary proceedings in terms of the Labour (National Employment Code of Conduct) Regulations, 2006 Statutory Instrument 15 of 2006 (National Employment Code of Conduct/Model Code) (S.I. 15/06) were conducted against the respondent. At the conclusion of the hearing the Disciplinary Authority exonerated the respondent from any wrong doing. That decision aggrieved the appellant, hence this appeal.

PRELIMINARY ISSUE

Before the appeal could be argued a preliminary issue was raised on behalf of the respondent. The preliminary issue is whether or not this court is the appropriate forum to hear and determine the appellant’s appeal. The contention on behalf of the respondent is that S.I 15/06 is not an employment code but “Regulations”; that the Legislature made a clear distinction between the Regulations and a registered code of conduct and further that S.I. 15/06 has an appeal structure which should be followed before an aggrieved party approaches the Labour Court.  In other words the averment is that the appeal is not properly before this court.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

The respondent is of the view that once aggrieved by a decision made under S.I.15/06, the aggrieved party should approach an appeals authority which is set up internally. Only after deliberations of such internal body should one approach an outside body, the averment continued.  In this case the outside body is a labour officer which forms part of the domestic remedies and not the Labour Court.

It was argued on behalf of the respondent that it was a grave error on the part of the appellant to approach this court before exhausting domestic remedies.  This, Mr. Kufaruwenga who appeared on behalf of the respondent argued, raises a point of law. Mr Kufaruwenga submitted that the court could in the circumstances of this case, exercise one of two options. The first option is for the court to dismiss the appeal for being improperly before it.  The second option is for the court to remit the matter to the appellant in order for domestic remedies to be exhausted. In support of this contention the court was referred to the case of Farm Community Trust v Claudius Chemhere SC 22/13 (Chemhere).

It was further argued on behalf of the respondent that the appellant maybe erroneously relying on Section 92D of the Labour Act, Chapter 28:01 ( the Act).It was Mr Kufaruwenga’s submission that appeals in terms of S92D of the Act arise from matters which would have been dealt with in terms of a code of conduct. Mr Kufaruwenga went on to argue making a distinction between a registered code of conduct and S.I. 15/06.Mr Kufaruwenga contended that S.I. 15/06 is not a registered code of conduct but a set of regulations.  Mr Kufaruwenga argued that a code of conduct is registered in terms of S101 (1) of the Act while S.I. 15/06 is promulgated in terms of S101 (9) of the Act. Mr Kufaruwenga also made reference to  S12B of the Act in advancing his argument that S.I. 15/06 is not a code of conduct .He proceeded to correctly submit that S.I. 15/06 is a ‘fall back ‘ position where a workplace does not have a code of conduct of its own.

Mr Kufaruwenga further argued that if an employer chooses to have their own code of conduct which is registered in terms of S101 (1) then upon any grief they are entitled to approach the Labour Court. However, the argument proceeded, if the employer chose to use the National Code of Conduct promulgated in terms of S101 (9) (in this case S.I. 15/06), then upon any grief an internal appeals authority should be set up and deal with the grief.  If unhappy with the outcome the aggrieved party approaches a labour officer as stipulated in the Statutory Instrument, and not the Labour Court. Mr Kufaruwenga averred that a party cannot straddle between the two forms of procedure. He further argued that in order for any employer to approach the Labour Court, they must have an employment code at the workplace. The court was also referred to the case of Tendai Tamanikwa v ZIMDEF SC 33/13 (Tamanikwa).  Mr Kufaruwenga persisted with the submission that appellant is in the wrong forum and that it ought to have set up an internal structure after which it would then approach a labour officer if unhappy with the initial tribunal’s findings. Mr Kufaruwenga urged the court to uphold the preliminary issue and dismiss the appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANT

In response Mr Tsivama who appeared on behalf of the appellant argued that the respondent made a basic error by distinguishing the two codes of conduct. He argued that a code of conduct is regarded as such because it is registered in terms of S101 of the Act. Mr Tsivama submitted that in view of the fact that the respondent admits that S.I. 15/06 was promulgated in terms of S101 of the Act, all the submissions made on behalf of the respondent are ill-conceived.

Mr Tsivama drew the attention of the Court to the provisions of S8 of S.I.15/06 which provide for appeals as follows (in part):

‘ 8.(1) Depending on the size and circumstances of an establishment or a workplace, an employer may appoint a person in his or her employment as an Appeals Officer or with the agreement of his or her employees or worker representatives, an Appeals Committee to preside over and decide on appeals.’(Emphasis added).

It was Mr Tsivama’s submission that in view of the wording of the applicable legislation certain procedures could or could not be done. In the present matter it was argued, on behalf of the appellant, it was difficult to set up an internal disciplinary appeal structure as the persons who would make up the appeal body would also have been witnesses in the matter. In any event, Mr Tsivama argued, the relevant section uses the word ‘may’ which is discretionary and therefore the employer was within its rights to approach this Court. Mr Tsivama further submitted that the distinction which is being made between the codes is far- fetched.

Commenting on the Tamanikwa case Mr Tsivama submitted that the case related to Statutory Instrument 258 of 1996 (S.I.258/96) which statutory instrument was not promulgated in terms of S101 of the Act. As such therefore the submission continued, a party who was aggrieved in terms of S.I. 258/96 was free to approach the Labour Court in terms of S92D.  Further it was submitted that in the Tamanikwa case the court’s reasoning was based on the court’s interpretation of S2A of the Act. The case was therefore distinguishable. Mr Tsivama argued that the appellant in the Chemhere case had exhausted domestic remedies and in the absence of an appeals committee the aggrieved party was entitled to approach the Labour Court. The Chemhere case was therefore also distinguished. Mr Tsivama urged the court to dismiss the preliminary point for lack of merit.

In reply Mr Kufaruwenga argued that the appellant outsourced the disciplinary authority. It should have also outsourced the appeal authority. Mr Kufaruwenga submitted that the appellant was obliged to follow the appeal procedure which is set out in S.I 15/06. That procedure, it was submitted, would have eventually led the appellant to this court as opposed to the procedure which the appellant adopted. Mr Kufaruwenga submitted that under the circumstances the appeal is not properly before the court.

ISSUES FOR DETERMINATION BY THIS COURT

The issues which are for determination by this court are:

(1) Whether or not the National Code of Conduct S.I 15/06 is an employment code as envisaged by the Act.

(2) Whether if S.I. 15/06 is a code of conduct as envisaged by the Act, the matter is properly before the Court.

Mr Kufaruwenga’s position is that S.I. 15/06 is not an employment code while Mr Tsivama holds that it is. In support of the position that it is not an employment Mr Kufaruwenga relied on the authorities of the Farm Community Trust v Chemhere and Tendai Tamanikwa and Three Others v Zimbabwe Manpower Development Fund cases (above).

THE LAW

Section 101of the Act provides for: ‘Employment codes of conduct’ as follows:

‘(1) An employment council or subject to subsections (1a),(1b) and (1c), a works council may apply in the manner prescribed to the Registrar to register an employment code of conduct that shall be binding in respect of the industry, undertaking or workplace to which it relates

(1a)...

(1b)...

(1c)...

(2) to (4)...

(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.” (Emphasis added).

(6) to (8)…

(9) The Minister may, after consultation with representatives of trade unions and employers organisations, by statutory instrument publish a model employment code of conduct.’

And

Dismissal is provided for as follows:

Section 12B

‘(1) Every employee has the right not to be unfairly dismissed.

(2) An employee is unfairly dismissed----

(a)  if, subject to subsection (3), the employer fails to show that he dismissed the employee in terms  of an employment code; or

(b)  in the absence of an employment code, the employer shall comply with the model code in terms of section101 (9). (Emphasis added).

S92D of the Act provides for

‘Appeals to the Labour Court not provided for elsewhere in this Act’ as follows:

‘A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed,  appeal to the Labour Court’

And

S93 of the Act provides for

‘Powers of labour officers’ as follows:

“(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it though conciliation, or if agreed by the parties, by reference to arbitration.”

According to the Oxford Advanced Learner’s Dictionary, International Student’s Edition, a “dispute” is defined as “an argument or a disagreement between two people, groups.”…

Unfair labour practices are provided for under SS 8 and 9 of the Act.

And

S8 of S.I. 15/06 provides

8.(1) Depending on the size and circumstances of an establishment or a workplace, an employer may appoint a person in his or her employment as an Appeals Officer or with the agreement of his or her employees or worker representatives, an Appeals  Committee to preside  over and decide on appeals.

(2) Any internal appeal structures shall be limited to not more than two appeals authorities.

(3) A person or party who is aggrieved by a decision made in terms of section (2) may, in writing note an appeal within seven working days with the Appeals Officer or Appeals Committee.

(4) The Appeals Officer or Appeals Committee, as the case may be, may call for a formal hearing to hear the appeal or decide from the record.

(5) An Appeals Officer or Appeals Committee, as the case may be, shall have 14 working days from day of receipt of the appeal, to dispose of the appeal.

(6) A person or a party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within 7 working days from the day of receipt of such decision.

(7) The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.’(Emphasis added).

Whether or not the National Code of Conduct S.I. 15/06 is an employment code as envisaged by the Act.

In the Chemhere case the Supreme Court did mention that S.I. 15/06 provided that a party is entitled to appeal to no more than two bodies within the work place. In that case the aggrieved employee, though charged in terms of S.I. 15/06 had been advised to appeal through the Board of Trustees after the initial appeal had failed. The matter was subsequently referred to an arbitrator and eventually got to the Labour Court. In the Tamanikwa case the matter involved the interpretation of the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations S.I.258/1996 (the Regulations) which were promulgated in terms of the Zimbabwe Manpower Development Act, Chapter 28:02. The employees in question were disciplined in terms of S.I. 258/1996. The Supreme Court found that the Regulations were not an employment code as envisaged by the Act. The Supreme Court discussed Ss 2A,3,12.92D and 92E of the Act. The Supreme Court stated that the Regulations were (in Tamanikwa) subordinate to the provisions of the Act. At page 10 of the cyclostyled judgment the following is stated:

“I am further fortified  in this view by the fact that the Regulations are not an employment code and in terms of S12B, the Labour Act makes it mandatory for any dismissal to be effected in terms of a registered code of conduct or the Labour National Employment Code of Conduct.”(Emphasis added)

In other words the ‘Regulations’ which were under consideration in the Tamanikwa case were S.I.258/1996 and not S.I.15/06, the National Code of Conduct. It is those Regulations which were not a code of conduct. The Supreme Court went on to hold that the Act makes it mandatory for any dismissal to be either in terms of a registered code of conduct or the National Code of Conduct.

In the present matter it is a question of misconduct which resulted in the acquittal of the respondent by the relevant Disciplinary Authority.  Had the respondent not been acquitted, one of the penalties available would be dismissal.  The matter before the Court is neither a dispute nor an unfair labour practice as envisaged by the Act.  The present case is concerned with dismissal which is provided for under S12B of the Act  This means that where a matter does not fall under S93, a labour officer has no jurisdiction to determine it.

Section 101 of the Act provides for ‘employment codes of conduct’. This means that whether it be s101 (1) or s101 (9), the subject is employment codes of conduct. I am fortified in this view by what the Supreme Court held in the Tamanikwa case. It put a registered employment code registered at the work place at par with the National Employment Code. One follows either one or the other. This is the intention of s12B of the Act.  The Legislature intended to ensure that all workplaces have a standard way of dealing with issues particularly the issue of dismissal. No employer in this jurisdiction can successfully be excused for dismissing an employee in any manner that they choose.  They have to dismiss an employee in terms of the Act. If a workplace does not have an employment code of its own, it is obliged to follow the provisions of S.I. 15/06 where and when it has to dismiss an employee.  S12B is there to protect employees from being unfairly dismissed or from being dismissed in a way that they cannot explain. The Legislature intended to ensure that employers conducted dismissals in a standardized way. Failure to conduct dismissal in the manner prescribed by the Act may amount to unfair dismissal. What this means is that an employee has to be dismissed in terms of either the workplace’s own code of conduct or where there is none, in terms of the National Employment Code.

Mr Kufaruwenga strenuously tried to make a distinction between an employment code promulgated in terms of s101(1) and the National Employment Code promulgated in terms of s101(9).  However such distinction is not supported by either the Act itself or case law.  Strenuous efforts we made to equate S.I. 15/06 and S.I. 258 /1996 as being both “Regulations”. There is a distinct difference between the two.  S.I. 15/06 was promulgated in terms of the Act whereas S.I. 258/96 was not.  S.I. 258/96 is not a Code of Conduct in terms of the Act.  It cannot be equated to S.I. 15/06. The use of the National Employment Code where a workplace does not have its own code of conduct is as good as using the employer’s registered code of conduct where they have one.

I have considered the National Employment Code and found that it is a valid code of conduct and not just “some regulations”. This therefore means that the first preliminary issue raised on behalf of the respondent has no merit. It must be dismissed.

Whether or not the appellant is properly before the court

The Act empowers ‘a’ person aggrieved by a decision arising from an employment code to appeal to the Labour Court.  This therefore means that the person can be the employer or the employee.  This is what the employer in the present matter did.  S8 of S.I. 15/06 empowers the circumstances of the workplace to be considered when dealing with the question of appeal.  In the present matter the employer considered the prevailing circumstances and saw it fit to approach this Court. Once again the Legislature must have been alive to the fact that circumstances may not always be conducive for an employer to appoint an appeal structure within the workplace and in that event an affected party should not be stranded. They should be free to approach the Labour Court.

In (1) Tafadzwa Sakarombe N.O. (2) Wonder Simuka v Montana Carswell Meats (Private) Limited SC 44/20 the Supreme Court considered the provisions of S.I. 15/06 and I think settled the position.  The Supreme Court at page 17 of the cyclostyled judge held that:

“[41] …”It seems to me that S8(6) of the Model Code of Conduct appears to be out of sync with the whole section.  It seems to suggest that a party aggrieved by a decision or manner in which an appeal has been conducted has a right of appeal to a labour officer in terms of S93 of the Act.  To my mind this is obviously incorrect, if regard is had to the wording of S93.  The powers bestowed upon a labour officer under the section are confined to disputes related to unfair labour practices or unfair dismissal.  A reference under S8(6) cannot be defined as relating to either an unfair labour practice or unfair dismissal.”…

The Supreme Court continued and at paragraph 48 and 49 stated as follows:

“[48]	The provisions of S8(6) and (7) of the Model Code of Conduct must be read together with the Act under which the statutory instrument was promulgated.  Where the Code conflicts with any provision of the Act, it stands to reason that the provisions of the Act must prevail.  Section 2A (3) provides that the Act shall prevail over any enactment which is in consistent with it.

…

[49]	In my view, the principle emerging from all the authorities referred to above can be summarized by the statement to the effect that a labour officer does not have any jurisdiction under S93 to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered code of conduct”…  (Emphasis added).

The regis  tered code of conduct being referred to above is S.I. 15/06.  Thus, like in any matter, where, proceedings would have determined in terms of a registered code of conduct, a labour officer where a determination has been made in terms of S.I. 15/06, has no jurisdiction to deal with the matter.  So quite apart from the fact that the employer being within their rights in terms of the circumstances at the workplace, to appoint or not appoint an Appeals Officer, they are free to approach the Labour Court.  This is so because a determination made in terms of S.I. 15/06 would have been made in terms of a Code of Conduct.

In Willmore Makumire v Minister of Public Service Labour and Social Welfare and Another CCZ 1/2020 the Supreme Court interpreted the import of s8 of S.I. 15 /06 as follows:

‘... that provision does not provide for appeals against decisions in disciplinary hearings conducted under section 6 of the Code of Conduct.’

In the present matter the respondent allegedly violated some provisions of s4 of S.I. 15/06 Disciplinary proceedings were conducted under s6 of the same statutory instrument .It is after this process that the Makumire case (above) directs parties to this Court. I respectfully accept the guidance from the Chief Justice in the Makumire case. I there agree with Mr Tsivama that the matter is properly before the Court. Consequently I find that the is no merit in the second preliminary issue. It too must fail.

In view of the foregoing it is ordered that the preliminary issues raised on behalf of the respondent be and are hereby dismissed.

MESSERS SAWYER AND MKUSHI, Appellant’s Legal Practitioners.

MESSERS DZIMBA, JARAVAZA AND ASSOCIATES, Respondent’s Legal Practitioners.