The
background relevant to the determination of this matter is as follows.
The
respondent was employed by the appellant as a Personnel Manager. In or
about 2003, the respondent suspended the appellant on allegations of
misconduct. A hearing to determine those allegations was aborted when it
was realised that the Code of Conduct under which the appellant was charged was
inapplicable. No determination was made in respect of the allegations of
misconduct.
In
June 2000, the appellant approached the Ministry of Labour complaining, firstly,
that he had been unlawfully suspended, and, secondly of other unfair labour
practices. On 22 August 2001, a Labour Relations Officer determined that
the respondent had not made an application in terms of the provisions of section
2 of S.I.375 of 1985 for the dismissal of the appellant. He consequently
ordered the respondent to pay the appellant the equivalent of four months
salary as compensation for loss of employment. On 3 September 2001, the
appellant appealed to the Senior Labour Relations Officer against that decision
and the respondent cross-appealed on 11 October 2001.
The
Senior Labour Relations Officer, on 27 November 2003, determined that no
application to dismiss the appellant had been made by the respondent. Without
inquiring into the merits, he then ordered the reinstatement of the appellant
without loss of pay and benefits from the date of suspension. In the
alternative he ordered that the appellant be paid his salary and benefits from
the date of suspension to the date of determination and damages in lieu of
reinstatement in a sum to be agreed to by both parties.
On
31 January 2003, the respondent appealed to the Labour Relations Tribunal
against that decision but then withdrew that appeal on 26 March 2003.
On
11 June 2003, the appellant was paid his arrears in respect of salaries and
benefits in the sum of Z$162,516=19 by the respondent. In due course, the
matter was referred to an arbitrator who awarded the appellant thirty months
salary in lieu of reinstatement and backpay from the date of suspension to 26
March 2003, being the date when the respondent informed the appellant of its
decision to pay damages. The respondent then appealed to the Labour Court,
which made the determination which forms the subject matter of this appeal.
The
Labour Court, in its determination, made a number of findings. Firstly,
that the arbitrator had erred in quantifying damages in the absence of evidence
justifying such award. Secondly, that the arbitrator erred in finding that
the only position the appellant could have taken was that of a Personnel Manager. Thirdly,
that the arbitrator erred in finding that the damages payable to the appellant
were to be based on wage rates prevailing at the time of the award….,.
It
is apparent from the record that although the respondent claims that an
application to dismiss the appellant was made in terms of S.I.371 of 1985, no
such application appears to have been received by the Minister, and,
consequently, no approval for the dismissal of the appellant was given by the
Minister. It is common cause that at the relevant time the appellant could
only have been dismissed in terms of the provisions of S.I.371/85.
The
papers filed of record reveal that at all times, the appellant complained that
he had been unlawfully suspended and that he remained an employee of the
respondent. Indeed, one of the issues raised by the appellant before the Senior
Labour Relations Officer, and the arbitrator, was the status of his contract of
employment. However, neither of them made a determination of this issue.
In
light of the observations I have just made, the finding by the Labour Court
that the question of the respondent's employment status had not been raised in
proceedings before the arbitrator is a misdirection.
The
issue of the employment status of the appellant was consistently raised by him
and was an important matter.
It
is clear that the Labour Relations Officer, the Senior Labour Relations Officer,
the arbitrator and finally the Labour Court, made no finding on this
issue. It is evident from the record that at no time was the appellant
properly suspended and dismissed. The respondent's counsel has conceded as
much before this Court. Therefore, in the absence of the appellant having been
properly dismissed, the question of damages and reinstatement does not arise….,.
The
appellant's contract of employment could only have been terminated in terms of
the provisions of S.I.371/85. It is also not in dispute that permission to
dismiss the appellant was not granted by the Minister in terms of the
aforementioned Regulations. There was, therefore, no valid suspension or
dismissal of the appellant from employment. The Labour Officer, the Senior
Labour Officer and the arbitrator, therefore, had no jurisdiction to determine
this matter. In the exercise of the review powers of this Court, the
proceedings before these three bodies must be set aside.
The
law is clear that every thing that transpired from the time of the appellant's
suspension was a nullity. In the circumstances, there is no doubt that at
all times, the contract of employment between the appellant and the respondent
remained extant and binding upon the parties. Accordingly, the appeal succeeds
and it is therefore ordered as follows:-
1.
The appeal be and is hereby allowed with costs.
2.
The judgment of the Labour Court be and is hereby set aside.
3. The
proceedings before the Labour Officer, the Senior Labour Officer and the
arbitrator, be and are hereby set aside.
