Zimbabwe Revenue Authority v Phibion Mutizira

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/179/25
HELD AT HARARE 25TH MARCH 2025
CASE NO. LC/H/92/25
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE 25TH MARCH 2025

AND

In the matter between

ZIMBABWE REVENUE AUTHORITY

JUDGMENT NO. LC/H/179/25

CASE NO. LC/H/92/25

APPELLANT

And

PHIBION MUTIZIRA	RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE JUDGE.

FOR THE APPELLANT: H.MUROMBA

FOR THE RESPONDENT: T.J. MAFONGOYA

MAKAMURE J:

[1]This is a judgment on preliminary issues raised on behalf of the respondent.

[2]The background to this matter is as follows. The respondent was employed by the

appellant. A dispute arose between the parties in October 2012. Provisions of the appellant’s

employment code were invoked . There were delays involving conducting the disciplinary

proceedings. After the various delays which included postponements, which afflicted the

matter, the record shows that 10th October 2022 the respondent was notified to attend

disciplinary proceedings.

[3]The proceedings were set to be heard in terms of the applicable code (the code) on 13th

and 14th October 2022. However, on 12th October 2022 and after receiving the notices of

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hearing, the respondent referred the matter conciliation and subsequent arbitration in terms

provisions of s101(6) of the Labour Act Chapter 28:01 (the Act).

[4]S101(5)&(6) of the Act provide as follows:

‘(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.

Provided that at the conclusion of such proceedings and notwithstanding anything to

the contrary in an employment code, at the instance of any party aggrieved by those

proceedings may appeal to a labour officer within 30 days of the conclusion of the

proceedings whereupon the labour officer shall attempt to conciliate the dispute in

terms of section 93 or exercise any other power provided for in that section

(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

dispose of the matter in accordance with section ninety-three.’(my underlining).

[5]The referral of the matter notwithstanding, the appellant on 13th October 2022 proceeded

to hear and determine the matter in terms of the code. The respondent together with his

representative, one Lorance Muzhanye, did not attend the hearing despite having been served

with the notice of hearing. Respondent was found guilty of misconduct in his absence .He

was penalized with dismissal.

[6] On the other hand, the arbitrator also proceeded to consider the matter. In a

determination dated 30th January 2024, the terms of reference for the Arbitrator were : i)

Whether or not the Designated Agent has jurisdiction to hear a case referred prematurely and

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ii) Whether or not the Designated Agent has jurisdiction to hear this matter-Appellate

powers?

[7]After considering what was presented before him the Arbitrator was of the view that a

concerned party " may refer the matter to the labour officer during the proceedings as long as

a determination has not been made.” It was the Arbitrator’s position that in terms of s101(6)

of the Act, he had the jurisdiction to hear and determine the matter. In his view the appellant

lost jurisdiction on the 12th of October 2022. He ruled that the hearing which was conducted

by the appellant under the circumstances was void as the appellant had lost jurisdiction and

therefore everything flowing from that hearing was to be regarded as something that never

took place. Consequently, he made the following determination :

‘ The referral of the matter on 12 October 2022 , in terms of the Labour Act Section

106(6) by the claimant made the GDC lose jurisdiction . By the same referral , the

DA was clothed with the jurisdiction on 12October 2022 to hear the matter and

therefore the hearing conducted by the GDC on 13 October 2022 is of no legal effect.

It should be taken as something that did not take place and everything flowing from it

is void ab initio.

It follows therefore that the Designated Agent will hear and determine the merits of

the matter.

I so determine.’

[8]The parties later appeared before the Arbitrator in order for merits of the matter to be

considered. A determination dated 8January 2025 was rendered. At the hearing preliminary

issues were raised on behalf of the respondent. These were that (i) the suspension of the

respondent by the appellant was irregular as it violated Clause 7.4 of the code in that it was

not approved by the line manager; (ii)the dispute between the parties had prescribed since it

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arose on 29 July 2013; and (iii) there was unnecessary splitting of charges. After considering

the preliminary issues the Arbitrator made the following determination:

1. ‘The suspension of the Defendant is void for it was not approved by the line manager,

as required by clause 7.4 of the Code of Conduct. The proceedings founded on this

suspension lack legal effect as well.

2. Succeeding from (1) above, the Complainant be and is hereby ordered to reinstate the

Defendant without loss of salary and benefits with effect from 29 July2013.

3. That the charges the Defendant is facing have not prescribed.

4. That the Complainant is hereby ordered to avoid splitting of charges and , in pursuit

of fairness, consider one all-embracing act of misconduct that the circumstances

allow.’

This is the award which is the subject of the present appeal. The following are the grounds of

appeal:

‘1. The Designated Agent erred at law in assuming jurisdiction and determining the

matter when the matter had been properly dealt with , and finalized, in terms of the

Appellant’s registered Code of Conduct.

2. The Designated Agent grossly erred in law in assuming appellate jurisdiction

which he did not have in terms of the Labour Act [Chapter 28:01] and /or the

Appellant’s Code of Conduct.

3.The Designated Agent erred in law in finding that the line manager’s approval was a

prerequisite for the suspension of Respondent from work, when in terms of Clause

7.4 of the Appellant’s Code of Conduct such approval is not mandatory.

4. The Designated Agent grossly misdirected himself on the facts, which amounted to

an error in law , in finding that the Appellant split the charges , when the Respondent

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was charged with two different offences based on different set of facts and in the

circumstances where such alleged splitting of charges was neither applicable nor did

it render the proceedings invalid or improper.’

Preliminary issues were taken on behalf of the respondent. These are that : Grounds 1and 2

are out of time; and the grounds are afflicted by res judicata in that the Arbitrator dealt with

them and made a determination on 30th January 2024; that the appellant has not appealed

against that decision. It was argued that the appellant acquiesced with the decision, the

argument proceeded, and that the question of the Arbitrator’s appellate jurisdiction was

never raised. It was submitted that the two grounds of appeal must be struck out. It was raised

as a second preliminary issue that the determination of the Arbitrator is partially in favour of

the appellant and therefore the appeal is fatally defective as it is against the whole

determination instead of being only against the portion which is not in its favour .

In response it was argued on behalf of the appellant that it is up to an appellant to raise an

appeal in terms of R19 of the Rules of this Court. It was argued that the respondent is

confusing the rules of this Court with the Supreme Court Rules which require the appellant

indicates whether or not the appeal is against the entire judgment or only a portion of it. On

the question of acquiescing with the Arbitrator’s determination it was argued that this was an

ongoing matter and points of law can be raised at any time during the proceedings. It was

submitted under the circumstances that res judicata does not arise. Further it was submitted

with respect to the question of jurisdiction that it was always a live issue to be considered at

any time. For that reason, it was submitted that grounds 1and 2 of appeal are properly before

the Court. The Court was urged to dismiss the preliminary issues and proceed to deal with the

merits.

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The first arbitral award was clearly a matter in which the parties were dealing with whether or

not the Arbitrator had jurisdiction to deal with the matter at all . The Arbitrator determined

that they had the necessary jurisdiction and that they would deal with the merits. This was on

the 30th of January 2024. This shows that the question of jurisdiction was dealt with. It is

therefore not being raised for the first time. The appellant is not precluded from raising the

issue on appeal. It is trite that an appellate court can only consider an issue which an earlier

tribunal had considered. (See Kundai Magodora and Otrhers v Care International

SC24/14). In any event a question of law can be raised at any time . There is therefore no

merit in the preliminary issue .It must be dismissed. The decision by the DA does not mean

that that issues raised considered therein amount to res judicata. The requirements of res

judicata are that:(i) a matter is between the same parties; (ii) in respect of the same issues;

(iii) was brought before a court of competent jurisdiction; and (iv)which court made its

determination on that issue. Farai Nigel Chitsinde and Another v Musa and Another

HH274-2010. The present matter is an ongoing matter and therefore the question of res

judicata does not arise. That preliminary is dismissed as well. This means preliminary

issues raised on behalf of the respondent have no merit. Both are accordingly dismissed.

The Arbitrator cited authorities which include Mwenye v LONHRO Zimbabwe Limited

SC128/99 where the Supreme Court stated that both the employer and employee had the

right to refer a matter to a labour relations officer if:

(i)	The matter had not been determined in terms of the relevant code ; and

(ii)	Thirty days had elapsed; and

(iii)	Notification has been given to the employee and proceedings are to be

commenced against him for the alleged breach.

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In Living Waters Theological Seminary v Reverend Ngoni Chikwanha SC59/21 the

Supreme Court stated that :

‘ In terms of s 101(5) a labour officer is not allowed to 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. In terms of s 101(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 the

dispute or unfair labour practice to a labour officer, for conciliation or referral to

arbitration in terms of s 93. It is important to note that reference is made to s 93 which

clearly limits the labour officer’s jurisdiction to conciliation and referals to arbitration.

The notification referred to in s 101 (3) (e) is notification of a hearing. The labour

officer can therefore exercise his jurisdiction in terms of s 93 if the matter is not

determined at the workplace within thirty days of the date of the notification. His

jurisdiction is therefore limited to conciliating and referring unresolved matters to

arbitration. He does not have jurisdiction to act as an appellate tribunal.’(My

underlining).

The Arbitrator in the determination dated 30 January 2024 relied on provisions of s101(6) to

found jurisdiction to hear merits of the dispute between the parties. The question that arises is

the interpretation of when ‘notification’ for the hearing was sent to the respondent. As shown

in Living Waters Theological Seminary ( above) the notification is notification of a

hearing. In the present matter the respondent was notified on 10 October 2022. The hearing

was conducted on 13th October 2022. A party can only refer matter for conciliation where the

3 requirements set out in Mwenye (above) have been satisfied. In the present matter its true

that the matter had not been determined in terms of the relevant code. And yes, the

respondent had been notified that disciplinary proceedings were to be conducted against him.

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However, thirty days had not passed from the date of notification. This means that the

Arbitrator heard the matter when he had no jurisdiction to hear the matter. In Municipality of

Chegutu v Manyora 1996 (1) ZLR 262 the Supreme Court stated that in interpreting

statutes the grammatical and ordinary sense of words must be adhered to. S106(6) is clear,

thirty days from the date of notification must pass before a matter to be dealt with in terms of

a code of conduct is referred to a labour officer or in this case to the NEC in order for the

matter to be dealt with in terms of s93. This is obviously meant to safe guard the interests of

a litigant where the other party is tardy. In the present case therefore, it was improper for the

respondent to avoid disciplinary proceedings in terms of the code by prematurely referring

the matter for arbitration. What this means is that it is the arbitral proceedings of 30 January

2024 are not compliant with provisions of s106 (6) of the Act and therefore null and void. If

they were void , it means that all the proceedings that followed were null and void.

What was before me for consideration were preliminary issues raised on behalf of the

respondent. I found those preliminary issues to have no merit. I however found it necessary to

deal with the first arbitral award in order to put the award now under consideration in its

proper context and further the first award was referred to in the arguments on the

preliminary issues.

In view of the forgoing, it is ordered that the preliminary issues being without merit, be and

are hereby dismissed.

KANTOR & IMMERMAN, APPELLANT’S LEGAL PRACTITONERS.

MAFONGOYA AND MATAPURA LAW PRACTICE, RESPONDENT’S LEGAL

PRACTITIONERS.