Zimbabwe Phosphate Industries Limited v Wilson Matamande

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/43/2013
HELD AT HARARE ON FEBRUARY 5, 2013
CASE NO.LC/H/637/2010
In the matter between:
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IN THE LABOUR COURT OF ZIMBABWE	   	JUDGMENT NO.LC/H/43/2013

HELD AT HARARE ON FEBRUARY 5, 2013   	CASE NO.LC/H/637/2010

In the matter between:

ZIMBABWE PHOSPHATE INDUSTRIES		Appellant

LIMITED

And

WILSON MATAMANDE				  	Respondent

Before The Honourable E. Makamure, President

For Appellant : Mr E.T. Moyo (Legal Practitioner)

For Respondent: Mr A. Muchadehama (Legal Practitioner)

MAKAMURE E,:

This is an appeal against an arbitral award. The grounds of appeal are as follows:

“1.	The arbitrator misdirected himself at law and found that the Applicant did not comply with Section 3(1) of the Labour Relations General Conditions of Employment, (Termination of Employment) Regulations, 1985.

2.	The Arbitrator erred at law by holding that the dispute had prescribed in terms of section 94(2) of the Labour (R)elations Act Chapter 28:01, when it had not, as the computation of one hundred and eighty days in terms of the Act itself incorporates the period on review in this matter.  Therefore the matter had not prescribed.

3.	The Arbitrator misdirected himself at law in ordering the reinstatement of the Applicant.  Reinstatement is not an option in the instance as evidence at hand proves that the respondent had worked elsewhere in the interim, thereby repudiating his contract of employment with the Applicant.  In ordering the reinstatement of the respondent the Arbitrator was tantamountly making a new contract for the parties, which he is not empowered to do.

4.	In only attempting to deal with the prescription aspect of the matter, the Arbitrator erred at law in failing to consider the second aspect upon which the case was impugned, namely whether or not the Respondent violated (S)tatutory (I)nstrument 371 of 1985 3(g) and (h) of the Labour Act.”

Sadly, the Appellant’s Heads of Argument are not in

my view satisfactory.  Firstly, the appellant is cited to as the applicant.  Secondly, the manner in which legislation is quoted or referred to is not sufficiently clear.  For example:

(i)	Paragraph 7 of the Heads refer to “Sections 94 1(a) and (b)” without specifying the legislation being referred to.

(ii)	Paragraph 14 refers to “S 94(1) of the Prescription Act” and yet the Prescription Act Chapter 8:11 has got only twenty (20) sections.

(iii)In paragraph 16 the authority cited reads: Muchakata v Netherburn Mine 1996(1) ZLR(S).  This citation is incomplete.  It is disappointing that the Heads of Argument prepared by a legal practitioner, who is an officer of this 
Court are drafted so carelessly.  I am not sure why this is so.  I hope that this is not so because generally “labour issues should not resolved on the basis of technicalities.”  If this is the attitude which pervades the presentation of work to the extent which has been exhibited in the present case, then the attitude must be condemned, discouraged and corrected.

Further I am not sure of the meaning of the 4th ground of appeal.  There is reference to violation of “(S)tatutory (I)nstrument 371 of 1985 3(g) and (h) of the Labour Act”.  I am not sure which legislation the appellant is referring the Court to.  I am therefore not able to consider that ground of appeal.

The Labour Court is a specialist Court.  Legal Practitioners who appear before it are expected to present work which reflects a high standard of skill and workmanship.  The fact that labour issues should not be resolved on the basis of technicalities should not affect the standard of work presented by legal practitioners to the extent that they do not apply their minds to what they present to this Court.

I will now consider the matter presented before me.  This is a matter in which the question of prescription is in issue.  The dispute in question arose when the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 1985 Statutory Instrument 371/85 was still operational. This was the legislation used to discipline the respondent.  The law has changed but the matter has still not been resolved. It is trite that provisions of legislation which was in force at the commencement of the disciplinary proceedings continue to apply till the finalization of such proceedings.  This is so because the law does not apply retrospectively.  Further, Section 17 of the Interpretation Act, Chapter 1:01 provides as follows:

“Where an enactment repeals another enactment the repeal shall not –

...... to (d)

(e)	affect any ... legal proceeding ... and any such ... legal proceeding or remedy shall be exercisable, ... or enforced ... as if the enactment had not been so repealed.”

The Labour Act Chapter 28:01 (The Act) provides for prescription of disputes in section 94 as follows:

“(1)(1) Subject to subsection (2) no labour officer shall entertain any dispute or unfair labour practice unless

It is referred to him; or

Has otherwise come to his attention; within two years from the date when the dispute or unfair labour practice first arose” (my emphasis).

On 3 September 2001, the appellant wrote to the Secretary, Ministry of Public Service, Labour and Social Welfare as follows:

“Re :	TERMINATION TO DISMISS MR WILSON MATAMANDE

Zimbabwe Phosphate Industries Limited are applying for permission to terminate Mr Matamande’s contract of employment on grounds contained in the attached documents.

Mr Matamande is employed as a Management Accountant in our Finance Department.  His duties entail accurate presentation of financial accounts on a monthly basis, which in turn would make it easier for preparation of annual accounts.  However, audit reports for 1999 and 2000 financial accounts show numerous shortcomings reflecting gross incompetence on his part.  The same pattern has manifested itself in the accounts for the period January to June 2001, thereby exhibiting habitual and substantial neglect of duty.

The company has placed Mr Matamande on suspension without pay and benefits with effect from 30 August 2001, and we now apply to your office for permission to dismiss him in terms of S.I. 371/85, Section 3(g) and (h).”  (my emphasis)

Prior to the letter of 3 September 2001, and on 27 April 2001 the finance manager of the appellant wrote to the respondent and expressed his disappointment “over the incorrect calculation of depreciation change on re-valued assets at 31st December 2000” by the respondent.  In other words the appellant was aware that “the dispute” in question first occurred in sometime in 1999.  On 20 August 2001 the appellant held a disciplinary inquiry into the performance of Mr Matamande (the respondent).  As indicated earlier on, on 3 September 2001 the appellant submitted an application for permission to terminate the respondent’s employment and submitted it to the relevant Ministry. (p.59 of the record).  I think this would have been within two years from the date when the dispute first arose.  Nothing further seems to have happened thereafter.  Then in February 2004 (p. 48) the parties must have appeared before a labour officer for conciliation.  They were issued with a certificate of no settlement concerning,

“Application to dismiss in terms of S.I. 371 of 1985.”

On 16 April 2004, the matter was referred to arbitration. As the record shows the dispute first arose in 1999.  Apart from the suspension which has been referred to, nothing further seems to have happened till the matter was referred to arbitration. The following were the issues to be arbitrated on:

“(1)	To determine whether the charges were prescribed in terms of the Labour Act and the (P)rescription Section (Act).

(2)	To determine whether W. Matamande violated S.I. 371 of 1985 section 3g and h”

The matter continued to drag on, unfortunately.  On 16 November 2010 the arbitrator handed down the award which is the subject of the present appeal.

The Learned Arbitrator made factual findings and determined that the dispute had prescribed.  This led to the present appeal.

In this appeal the appellant’s first and second grounds of appeal deal with factual issues.  This is not in compliance with Section 98(10) of The Act.  The Act stipulates that points of law only are to be raised on appeal before this Court from the determination of an arbitrator.  Those two grounds are therefore not properly before the Court.  On this basis alone the appellant ought to fail.  The third ground of appeal flows from the Learned Arbitrators findings.

The appellant ought to have pursued the dispute as soon as it had arisen to ensure finality of the matter.  [See Ndebele v Ncube 1992(1) ZLR 288(S)]. The appellant was never granted authority to dismiss the respondent.  In the case of Four Seasons Food (Private) Limited v Stephen Matsvakavanhu and Seven Others SC 44/09 the Supreme Court held that where an employer does not follow disciplinary proceedings to conclusion, the affected employees remain in the employ of that employer. I am in respectful agreement with what the Supreme Court held in that matter. I am therefore inclined to agree with the interpretation adopted by the Learned Arbitrator.  The respondent was never dismissed from the respondent’s employ. He therefore remains an employee of the appellant until the appropriate steps to dismiss him have been taken.

In the circumstances I find that there is no merit in the appeal.  The arbitral award is hereby confirmed.

Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.

Scanlen and Holderness, Legal Practitioners for the Appellant.

Mbidzo, Muchadehama and Makoni, Legal Practitioners for the Respondent.