This is an appeal against the whole judgment of the Labour
Court of Zimbabwe, Harare, handed down on 11 of October 2011.
The factual background of the matter is as follows:
The respondents were employed by the appellant, Medicines
Control Authority of Zimbabwe (“MCAZ”) in different clerical capacities and
were also members of its Workers Committee. On 29 November 2010, the
respondents were suspended from employment in terms of section 4(a) and (b) of
S.I.15 of 2006, on charges of each having committed;
(i) Any act, conduct or omission inconsistent with the
fulfilment of the express or implied conditions of his or her contact of
employment; and
(ii) Wilful disobedience to a lawful order.
It was alleged against the respondents, in their capacity
as Workers' Committee members that they had attempted to force the Medicines
Control Authority of Zimbabwe management to address several issues said to be
of concern to the appellant's workers. The appellant's executive sub-committee
believed it had resolved the various grievances and, through written
communication dated 18 October 2010, advised the respondents that the committee
had fully dealt with the complaints in question. Further, that the appellant
desired and was effectively ordering 'closure' to the whole issue.
The respondents, who were apparently of the opposite view,
thereafter (and unproceduraly, according to the appellant), wrote a memorandum
to the Minister of Health setting out a multiplicity of grievances and
complaints against the conduct of the appellant and its senior personnel. The
appellant took a dim view of this development and saw it as constituting a
failure by the respondents to comply with the employer's lawful instruction. In
specific terms, the instruction was that there be closure to the whole dispute.
Letters of suspension were subsequently issued to the
respondents on 29 November 2010 inviting them to attend disciplinary hearings
on different dates during the early days of December, 2011. Disciplinary
proceedings were thereafter conducted with the result that the respondents were
dismissed from their employment.
It is, in my view, pertinent, given the appellant's first
ground of appeal, to set out the sequence of events following the issuance of
the letters of suspension:
29 November 2010 - letters of suspension issued to all
respondents.
30 November 2010 - the respondents took the matter to a
labour officer for conciliation.
15-17 December 2010 - disciplinary hearings were conducted
before a disciplinary committee and all the respondents were dismissed from
their employment with effect from the date of suspension.
20-22 December 2010 - the respondents wrote identical
letters to the appellant advising of their intention to appeal against 'the
procedure, verdict and penalty' of the disciplinary committee.
January 2011 - a follow-up letter (to the one of 30
November 2010) was written by the respondents to the Labour Officer through the
Ministry of Labour. It purported to add two more grievances to the one already
filed, that is, unlawful dismissal.
19 January 2011 - a Certificate of No Settlement was issued
by the Labour Officer and the matter was on that day referred to arbitration on
a number of terms of reference.
27 March 2011 - arbitral award issued.
17 June 2013 - Labour Court hears appeal.
11 October 2013 - Labour Court judgment issued.
The first of the arbitrator's ten (10) terms of reference
reads as follows:
“Whether or not the labour officer has jurisdiction” (sic)
The arbitrator made no ruling on this specific issue, and,
after considering the other terms of reference, ruled that the appellant had
convened and brought the respondents before an improperly constituted
disciplinary committee, in contravention of laid down procedures. The
arbitrator consequently held that all the other consequential proceedings
founded on the improperly constituted disciplinary committee were a nullity. He
ordered that the respondents be reinstated to their positions without any loss
of salary and benefits effective from the day of suspension, failing which, that
they be paid damages in lieu of reinstatement.
The appellant was aggrieved at this decision and filed an
appeal to the Labour Court. Its appeal having been dismissed, the appellant has
now filed this appeal.
It appears to me that three issues for determination arise
from the appellant's grounds of appeal, and these are:
1. Whether or not the arbitrator ought to have made a
finding on the issue regarding jurisdiction.
2. Whether or not an employee representative should have
been included in the composition of the disciplinary committee.
3. Whether or not the respondents waived their right to
have employee representatives on the committee panel.
The first issue is articulated thus in the appellant's
grounds of appeal:
“The court a quo erred in holding that the failure of the
arbitrator to make a finding in regard to jurisdiction was a procedural issue
that should have been raised by way of review.”
This ground of appeal addresses the appellant's contention
before the arbitrator to the effect that the respondents had not exhausted all
internal appeal remedies and had prematurely, therefore improperly, brought the
matter to the Labour Officer. As a consequence, the appellant further
contended, the matter (on the merits) was also improperly before the
arbitrator.
The fact that the arbitrator was fully alive to the issue
of jurisdiction having been raised before him is evident from his summation of
the appellant's submissions, thus:
“Respondent (appellant in casu) submitted that
notwithstanding the fact that the given notices of appeal had no grounds, the
claimants never gave the internal appeals structure an opportunity to dispose
of the matter. Before an Appeals Officer was even selected, the claimants went
before the Labour Officer for Conciliation. The respondent submitted that the
internal appeal process had not been concluded and could not be concluded.”
In its heads of argument before the Labour Court, the
appellant elaborated this issue and pointed out, correctly, as the above
sequence of events shows, that the respondents referred the matter for
conciliation the very next day (30 November 2010) following their receipt
of the letters of suspension. At that time they had neither been subjected to a
disciplinary hearing nor dismissed. They, therefore, by that token, triggered
and followed a process parallel to the one that started with their letters of
suspension. This is because during the time that the Labour Officer, rightly or
wrongly, was seized with the dispute:
(i) The appellant was in the process of conducting
disciplinary hearings against the respondents, which ultimately culminated in
their dismissal from employment; and
(ii) The respondents were, from the 20th of
December 2010 onwards, requesting from the appellant, records of the
disciplinary proceedings for appeal purposes.
Furthermore, and despite their request for the records of
the disciplinary proceedings, purportedly for appeal purposes, the respondents
dispatched to the Labour Officer a follow-up letter containing additional
grievances for that officer's consideration. The respondents, however, and this
is not something that they dispute, never pursued the threatened appeal but
were seemingly content to have the matter heard by the arbitrator, to whom the
dispute had now been referred. By so doing, the respondents abandoned the
procedural route which should have started with an appeal to the appellant's
Appeals Committee, then gone on to conciliation (see section 8 of S.I.15 of 2006),
arbitration and the Labour Court.
The appellant contends that the respondents, having been
suspended in terms of S.I.15 of 2006 (its default Code of Employment), the
referral of the matter to conciliation was 'unlawful' as it was done in
violation of the provisions of subsection (5) of section 101 of the Act which reads
as follows:
“(5) Notwithstanding this Part, but subject to subsection
(6), no labour officer shall intervene in any dispute or matter which is or
liable to be the subject of proceedings under an employment Code, nor shall he
intervene in any such proceedings…,”
Subsection (6) imposes time limits within which a matter
left un-determined at the level of the workplace, despite requisite notice, may
be referred to a Labour Officer.
It is not relevant to the circumstances of this case.
It is apparent from section 101(5) of the Act that the
respondents followed a route that may have placed before the Labour Officer a
dispute such as the one referred to in that subsection, that is, one which is
or is liable to be, the subject of proceedings under an Employment Code. This circumstance, in my view, reasonably
called into question the jurisdiction of the Labour Officer to hear the dispute
referred to conciliation under those circumstances. The appellant was therefore
within its rights to raise the matter before the arbitrator.
While the arbitrator completely disregarded the appellant's
submissions on the subject and determined the matter on other grounds, the
Labour Court, before which the same issue was raised, gave its reasons for not
considering it, thus:
“The first ground was not pursued in oral argument. In any
event, it raised a procedural point. Such points ought to be raised by
way of review rather than an appeal. Whether or not the matter was referred to
the Arbitrator 'prematurely' is clearly a matter of procedure. Thus, the point
could not be dealt with in this appeal.”
I find there is merit in the appellant's submission that
the court a quo erred in finding that the issue of jurisdiction, that the
Labour Officer did not consider, was a procedural issue that should have been
raised by review.
Jurisdiction, in simple terms, can be defined as the power
or competence of a particular court or tribunal to hear and determine an issue
brought before it. See HERBSTEIN and VAN WINSEN, The Civil Practice of the High
Courts of South Africa, Fifth Ed. Volume 1…,.
A plea of jurisdiction therefore attacks the competence of
a court or tribunal to hear and determine the matter. It follows that a court
or tribunal that has no jurisdiction, for whatever reason, to entertain a
matter is not in a position to go beyond the question of its jurisdiction to
determine any other issue to do with the dispute in question.
In casu, it may be safely assumed that the Labour Officer
heard and dismissed a challenge to his jurisdiction (or lack thereof) to hear
the matter. He however, in my view correctly, included this particular issue
among those referred for arbitration. But, as already indicated and for reasons
best known to himself, the arbitrator disregarded the issue and proceeded to
hear the matter on the merits. That being the case, the Labour Court ought to
have found that the arbitrator misdirected himself by not addressing, before he
did anything else, the question of whether or not the Labour Officer had
jurisdiction to hear the matter. A positive finding on the issue would have
placed the dispute properly before the arbitrator for his determination thereof
on the merits. In other words, the arbitrator's competence to hear the matter
was predicated on the Labour Officer having validly and properly heard and
considered the matter. By contrast, a negative finding would have rendered the
whole conciliation process a nullity. The effect would have been that there was
no issue for further determination before and by the arbitrator. This, in turn,
would have meant that the appeal against the arbitrator's award was improperly
brought to the Labour Court.
There is truth to the saying that you cannot put something
on nothing and expect it to hold. It will collapse. McFoy v United Africa Co
Ltd (1961) 3 All ER 1169 at 1172.
Accordingly, the determination of the appeal on the merits
by the Labour Court was wrong at law and cannot be allowed to stand.
It is, in the result, ordered as follows:
1. The appeal is allowed with costs.
2. The judgment of the court a quo be and is hereby set
aside and substituted with the following:
“1. The appeal be and is hereby allowed.
2. The award of the arbitrator is hereby set aside.
3. There shall be no order as to costs.”
