Court name
Supreme Court of Zimbabwe
Case number
SC 87 of 2005
Civil Appeal 23 of 2004

Watyoka v Zupco (Northern Division) (23/04) (SC 87 of 2005, Civil Appeal 23 of 2004) [2006] ZWSC 87 (24 September 2006);

Law report citations
Media neutral citation
[2006] ZWSC 87
Coram
Chidyausiku CJ
Cheda JA
Gwaunza JA










REPORTABLE
ZLR (34)





Judgment
No. SC. 87/05


Civil
Appeal No. 23/04








MONDAY
WATYOKA v





ZUPCO
(NORTHERN DIVISION)








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & GWAUNZA JA


HARARE,
OCTOBER 24, 2005 & SEPTEMBER 25, 2006








Z
Lunga
, for the appellant





L
Mazonde
, for the respondent





CHEDA
JA: This is an appeal from a decision of the Labour Court, which
allowed the respondent’s appeal against the decision
of a senior
labour relations officer.






The
appellant was employed by the Zimbabwe United Passenger Company Ltd
(ZUPCO), hereinafter referred to as “the Company”.
The main
business of the Company is the carrying of passengers travelling to
various destinations within and outside Zimbabwe by
means of buses.
The Company has a Code of Conduct for its employees.





On
assuming duty, although the letter of the contract of employment was
not produced, it is common cause that the appellant signed
a letter
in which he was barred from conducting any business that was in
direct competition with his employer.





During
the course of his employment, it was alleged that the appellant was
found to have purchased and operated two minibuses.
He was charged
with misconduct and dismissed from employment.





The
appellant referred the matter to a labour relations officer, who
determined the matter in his favour and ordered his reinstatement.

The matter was referred to a senior labour relations officer, who
upheld the decision of the labour relations officer.





The
respondent appealed to the Labour Court, and that court set aside the
decision of both labour relations officers. The appellant
now
appeals against that judgment.





The
appellant’s grounds of appeal are fragmented into twelve grounds,
but a careful reading of the grounds reveals three main
issues that
the appellant refers to in his heads of argument. These main issues
are –






1. The jurisdiction of the labour
relations officers to hear the matter;






2. The
determination being made outside the time limits specified;







3. That the merits were not
considered and the misconduct was not proved.






I shall deal with each of these
issues in turn.






Lack of jurisdiction






Section 101 of the Labour
Relations Act [Chapter 28:01] (“the Act”) provides as
follows:






“101 Employment codes of
conduct





(1)
– (4) …



(5) Notwithstanding
this Part, but subject to subsection (6), no labour relations
officer or senior labour relations officer
shall intervene in any
dispute or matter which is or is liable to be the subject of
proceedings under a 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
relations officer, who may then determine or otherwise dispose
of the
matter in accordance with section ninety-three.”






There
are, therefore, three important conditions under which such a matter
can be referred to a labour relations officer or senior
labour
relations officer –






(a) the matter must not be one
that is or is liable to be the subject of proceedings under a Code of
Conduct;







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







(c) where the parties to the
dispute request it and are agreed on the issues in dispute.
(Section 93(1)(ii).





In
this case there were delays in the determination of the matter due to
a number of postponements at the request of the appellant.
At one
meeting the appellant and his legal practitioner attended without
submitting the appellant’s response to the allegations.
At yet
another meeting the appellant and his legal practitioner walked out
before the meeting was closed, as the legal practitioner
said he
wanted to catch his flight and had other business to do in Harare.
When the appellant and his legal practitioner raised
the issue of
delay, the chairperson did point out to them that it was actually
their fault, as they were responsible for the delays.





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.





The
section should be read as being only permissive and not restrictive.
In my view, the intention of the legislature is to grant
relief to a
party who is affected by the delay. The section provides that:






“… the
employee or employer concerned may refer such matter to a labour
relations officer, who may then determine or otherwise dispose
of the
matter … “





Clearly,
the referral can only be made before a determination is made.





It
was probably foreseen that in certain cases one party could frustrate
the other by causing delays to the prejudice of the other.
That
seems to be the reason why the word “may” is used.





The
party concerned does not have to refer the matter to the labour
relations officer. That party may still wait for the determination
to be made even after the thirty days period.





Accordingly,
the period of thirty days does not refer to the time within which a
valid determination should be made. The section
does not say the
determination should be made within the thirty days period. All it
does is to restrict any concerned party from
rushing to refer the
matter to a labour relations officer before the expiry of the thirty
days.





It
follows that where the thirty days have lapsed the concerned party
can choose to refer the matter to a labour relations officer
or wait
for a determination to be made.





The
thirty days therefore refers to the period after which the party
concerned may complain, and does not make any determination
made
after its expiry a nullity.





In
this case, the appellant continued to attend the proceedings even
after the period of thirty days had expired. He clearly intended
to
wait for the determination to be made. The section cannot be read
as providing for a second determination over and above one
already
made by a disciplinary committee. Once there was a determination,
the correct procedure was to appeal to the Company’s
management, as
provided in the Code of Conduct.





The
suggestion that no letter of dismissal was issued and that the
appellant was prevented from appealing in time does not assist
him,
as the decision was made in his presence. According to the minutes,
he was informed and there is no indication that his legal
practitioner requested the letter of dismissal or the record for the
purpose of appeal.





It
is also clear that there was no agreement between the parties to
refer the matter to a labour relations officer, as required
by
s 93(1)(ii) of the Act.








Worse
still, s 94 of the Act provides as follows in relevant part:






“94 Prescription
of disputes







(1) Subject to subsection (2)
after the 1
st January
1993 no labour relations officer shall entertain any dispute or
unfair labour practice which –






(a) …






(b) arises after the 1st January
1993, unless it is referred to a labour relations officer within one
hundred-and-eighty days from the date when such
dispute or unfair
labour practice first arose.”





I
should point out that Amendment Act 17/2002 came long after and does
not affect this case.






This matter commenced with a
letter dating as far back as 13 October 1997. The appellant
started complaining about being sent
on leave at the meeting held in
November 1997. At this meeting he complained that he was being
victimised. He also raised what
he called “unfair labour
practices” because the misconduct was not investigated by the
personnel department, although the record
and the minutes filed show
that the appellant attended preliminary meetings with his legal
practitioner.





The
notification to the employer was dated 13 October 1997.






When the thirty days expired
before the matter was determined, the appellant did not raise any
complaint. At a meeting held on 21 November
1997, which was
already after the expiry of the thirty day period after the
notification, the appellant and his legal practitioner
asked for a
postponement.





At
the meeting of 4 December 1997 the appellant and his legal
practitioner said they wanted the author of a certain document
to be
called. It is clear that they still wanted to proceed with the
hearing and required a postponement.





It
cannot be said that the chairperson should have refused the
appellant’s request for a postponement because the thirty day
period
had expired.





Both
parties referred to the case of
Mwenye
v Lonrho Zimbabwe Ltd

1999 (2) ZLR 429. That case clarified the provisions of s 101(6)
of the Act. It also made the point clear that both parties
had
agreed on the referral of the dispute to a labour relations officer.





In
this case, by the time the matter was entertained by the labour
relations officer, two separate provisions of the Act had ousted
his
jurisdiction. They were, firstly, the fact that a determination had
been made; and, secondly, the dispute had prescribed in
terms of
s 94(1)(b), in that the allegations of unfair labour practice
were raised at meetings held with the disciplinary committee
in
November 1997 but the labour relations officer only entertained the
complaint on 6 August 1999, after a period of about eighteen
months, and well beyond the period of one hundred and eighty days
provided in s 94(1)(b).





The
merits





The
appellant also raised a complaint about the composition of the
disciplinary committee, but it was not shown that there was any
bias
or prejudice at all. The composition of the committee is a
technicality that cannot be allowed to nullify the proceedings
which,
according to the record, reflect that he had a fair hearing.





The
minutes of the different meetings, at which the appellant was legally
represented, indicated that the


hearing
was conducted properly and that evidence was led in his presence on
the merits. He failed to challenge the evidence from
his own
secretary regarding the preparation of a project document that was
used to obtain the loan and the typing by his secretary
of waybill
tickets.





It
was established beyond doubt that he was involved in the operation of
the minibuses, the very act that was prohibited by the
letter of
appointment that he had signed.





Accordingly,
I see no merit in the appeal and it is dismissed with costs.














CHIDYAUSIKU
CJ: I agree.














GWAUNZA
JA: I agree.














Legal
Aid and Advice Scheme of the University of Zimbabwe
,
appellant's legal practitioners


Muzangaza,
Mandaza & Tomana
,
respondent's legal practitioners