Living Waters Theological Seminary v Reverend Ngoni Chikwanha

### Preamble
Judgment No. SC 59/21
Civil Appeal No. SC 123/20
1
REPORTABLE: (56)
---------


REPORTABLE:	(56)

LIVING     WATERS     THEOLOGICAL     SEMINARY

v

REVEREND     NGONI     CHIKWANHA

SUPREME COURT OF ZIMBABWE

MALABA CJ, UCHENA JA & CHIWESHE AJA

HARARE, 17 NOVEMBER  2020  & 27 MAY 2021

I.T. Mapuranga, for the appellant

T. Chagudumba, for the respondent

UCHENA JA:	 This is an appeal against the whole judgment of the Labour Court dated 22 March 2019 setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was from 22  October 2013 employed by the appellant as a Campus Coordinator. He was responsible for the Tynwald Campus. On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015.  The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”)

The Disciplinary Committee found the respondent  guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015. The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position. The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result the demotion was subsequently withdrawn by a letter dated 28 July 2015. Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice, whether or not the respondent had been unfairly dismissed, whether or not the respondent had the right to demand reinstatement and whether or not it was lawful for the respondent to accept an offer of a lesser penalty, and/or the appropriate remedy. The arbitrator found that the principles of natural justice had been observed and that as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned that it ought to have deliberated on the appeal placed before it and not be sidetracked by the mitigation tendered before it by the respondent. The arbitrator however found that notwithstanding the error by the Appeals Committee, he, in his capacity as an appeals tribunal could determine the matter on the merits. He in his award upheld the decision of the Appeal’s Committee. Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice, that the arbitrator had erred and misdirected himself in not considering the real issues which were before him and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found that the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in S.1 15/2006 in terms of which the respondent was charged. The court a quo found that the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted. Further, the court a quo ruled that from the totality of the facts, there was bias in the proceedings because of the appellant’s service of the charge sheet to the respondent on the date of the hearing, hearing submissions in mitigation before handing down the verdict and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled that the arbitrator erred in concluding that the Appeal’s Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeal’s Committee only address the issue of the penalty imposed by the disciplinary committee  resulting in the Appeals Committee imposing a lesser sentence. Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits or alternatively that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1.   The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2.	The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy assuming the grounds had been properly placed before the court would have been a hearing de novo. The court a quo erred at law in finding that the appellant’s failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity

3.	The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the appeals committee and limited his appeal to sentence only.”

The appeal raises two issues for determination the first issue having been raised by the court at the hearing of the appeal.

Whether or not the matter was properly before the labour officer, the arbitrator and the court a quo?

Whether or not the court a quo’s decision on the charge against the respondent and finding of bias against him was correct.

SUBMISSIONS MADE BY THE PARTIES.

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter and that if they did, whether or not the court a quo’s decision on the charge against the respondent and finding of bias against him was correct.

Mr Mapuranga for the appellant submitted that the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I 15 of 2006 and that the process was an appeal to the labour Officer. Counsel for the appellant contended that the grounds presented to the labour officer were grounds for review, particularly, the issue of bias therefore the respondent should have approached the  Labour Court for review. On bias, he submitted that there were three charges against the respondent and he was acquitted on one thus the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was on 27 May 2015 served with a letter which articulated the charges.

Mr Chagudumba for the respondent submitted that the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted that in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CCZ 01/20 at p9, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended that the Appeals Committee’s hearing was tainted by irregulaties and that the appellants’ appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer and the arbitrator have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees. The jurisdiction of a Labour Officer is provided for by s 93 (1) to (3) of the Labour Act [Chapter 28:01]  which provides as follows:

“93 Powers of labour officers

(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 through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.

(3) If the dispute or unfair labour practice is not settled within thirty days after the  labour officer began to attempt to settle it under subsection (1), the labour officer shall issue a certificate of no settlement to the parties to the dispute or unfair labour practice.”

In terms of s 93 (1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation or, by referring such labour disputes or unfair labour practices to arbitration. The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees. When a matter is determined by a disciplinary committee or appeals committee it can nolonger be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O & Anor v Montana Carswell Meats (Private) Ltd SC 44/20, where it  held:

“A simple reading of the subsections of s 93 set out above gives the reader the impression that when a labour officer deals with a matter or a dispute which has come to him in terms of s 93(1) it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer under s 93(1) of the Act constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection. There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace. Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible. Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93 as a whole does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”

(emphasis added)

A labour officer’s jurisdiction is also provided for by s 101 (5) and (6) which provides 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.

(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.” (emphasis added)

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.

Section 101(5) and (6) was interpreted by this Court in Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170 (S). At p 172F-G, the Court said:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

the matter must not be one that is liable to be the subject of proceedings under a code of conduct;

the matter has not been determined within thirty days of the date of notification; and

where the parties to the dispute request and are agreed on the issues in dispute (s 93(1)(ii)).”

At p 173B the court interpreted s 101(6) as follows:

“Subsection (6) of s 101 provides for a referral of the   matter to a labour relations officer if it has not been determined within thirty days. It does not    provide for a referral of a matter that has been  determined. The referral to a labour relations officer  is a relief granted to a party who is concerned about   the delay in the determination. It is not a referral    intended to challenge a determination that has already  been made.” (emphasis added)

Section 8 (6) of the Model Code S.I  15 of 2006 seems to give a Labour officer appellate jurisdiction as it provides that:

“A person or party who is aggrieved by a decision     or manner in which an appeal is handled by his or her employer or the 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.”

The provisions of s 8 (6) of S. I 15 of 2006 give a party aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, a right to refer the case to a labour officer or an Employment Council Agent. This suggests that a labour officer has appellate jurisdiction over decisions of the employer’s Appeals Officer or Appeals Committee,

In view of the provisions of ss 93 and 101 of the Labour Act this cannot however be the correct interpretation of the law as s 8 (6)  of the Model Code is a provision in a statutory instrument enacted in terms of the Labour Act. Therefore ss 93 and 101 are provisions of S.I 15 of 2006’s parent Act. It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite that ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act. In this case the position of the law is further reinforced by s 2A (3) of the Labour Act which provides as follows:

“2A Purpose of Act.

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of s 2A(3) the provisions of the Labour Act shall prevail over any other enactment inconsistent with them. The use of the words “any other enactment” means the provisions of the Act prevail over other enactments including regulations and statutory instruments. It is therefore clear that no legislation which is inconsistent with the provisions of the Labour Act can be enforced. Once an inconsistency is established the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored. The provisions of s 8(6) of S. I 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of ss 93 and 101 of the Labour Act.

Whether or not the matter was properly before the labour officer, the arbitrator and the court a quo?

Although the parties made submissions on the merits, it is my view that a more fundamental issue on the procedure adopted by the parties, and the labour officer, in the resolution of the matter puts this matter to rest. It is imperative to note that the respondent referred the matter to the labour officer after the appellant’s Disciplinary Committee and the Appeals Committee had determined the matter on the merits through a disciplinary process under the Model Code S.I 15/2006. It is against this background that I take the view that a properly considered critical analysis of the proceedings before the labour officer under s 93 be made to establish whether or not those proceedings were properly before the labour officer and the arbitrator.

A labour officer is a creature of statute and can therefore only exercise jurisdiction granted to him in terms of the statute which created his office. As established under the analysis of the law a labour officer does not have jurisdiction to exercise appellate jurisdiction over decisions of disciplinary authorities and appellate authorities in terms of Codes of Conduct.

In this case the labour officer exercised appellate jurisdiction over the appellant’s Appeals Committee’s decision when he had no jurisdiction to do so. The proceedings before the labour officer are therefore a nullity. The referral to the arbitrator and the arbitral proceedings are also a nullity. The appeals to the Labour Court and this Court are also nullities as they are appeals against nullities. The appellant’s appeal to this Court must therefore be struck off the roll.

In terms of our review powers as provided by s 25 of the Supreme Court Act [Chapter 7:13] the proceedings before the labour officer, the arbitrator and the Labour Court, whose irregularities have been brought to our attention must be set aside.

The finding that the appeal to the Labour Court was a nullity renders it unnecessary to determine issue number 2.

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court and this Court because of the labour officer’s, arbitrator’s and the Labour Court’s failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law. It is therefore fair and just that each party should bear its own costs.

I therefore order as follows:

The matter is struck off the roll.

The proceedings before the labour officer, the arbitrator and the Labour Court be and are hereby  set aside.

Each party shall bear its own costs.

MALABA CJ    		 I agree  -----------------------

CHIWESHE AJA  		I agree   ------------------------

Zinyengere Rupapa Legal Practitioners, appellant’s legal practitioners

Atherstone & Cook, respondent’s legal practitioners