HLATSHWAYO,
JA: This
is an appeal against the whole judgment of the Labour Court sitting
at Bulawayo handed down on 19 September 2011 in case number
LC/MT/28/10. Leave to appeal and condonation of late noting of appeal
as well as extension of time within which to note an appeal were
granted by this Court on 26 February 2016.
There
were two matters for determination before the Labour Court:
proceedings for the setting aside of an arbitral award (the first
matter) and an appeal against the employer's decision to terminate
the employment of the employee (the second matter). The Labour Court
dismissed both matters and the appellant, a self-actor, has appealed
against both decisions, on the following grounds:
1.
The court a
quo
erred grossly at law in its finding that what was placed before it
was an application for review as opposed to an appeal;
2.
The court a
quo
erred grossly at law by not finding that the award was contrary to
public policy for the arbitrator sought to demand receipts - an issue
which did not emanate from the parties nor was it a requirement of
the policy he held was binding between the parties.
3.
The court a
quo
erred grossly at law by not finding that by singling out appellant
for disciplinary action and leaving the co-accused persons the
respondent acted ultra
vires
article 23(2) of the Declaration of Rights Charter.
4.
The court a
quo
grossly erred at law by not finding that the appellant was wrongly
convicted.
5.
The court a
quo
grossly erred at law by re-establishing the charges which had been
quashed by the respondent's appeals committee.
6.
The court a
quo
grossly erred at law by not observing the provisions of section
12B(4) of the Labour Act as required by the law of unfair dismissal.
The
appellant then sought as relief the setting aside of the arbitrator's
award and its substitution with the granting of his claim for $3,840
and his own re-instatement in employment or payment of damages in
lieu
thereof.
BACKGROUND
FACTS
The
common facts are that the appellant and the respondent were employer
and employee since 2005. The appellant was employed as a Stock
Control clerk. In September 2004, the respondent had entered into a
Works Council agreement with its employees regarding transfer
expenses. In 2009 the appellant was transferred to Victoria Falls at
one of the respondent's commercial depots. Appellant then raised a
complaint that his transfer expenses were not met. The appellant
later took up the matter to the Human Resources department and was
paid US$359-00 in April 2010. The appellant submitted that no
breakdown of the money had been given. He felt short-changed as he
believed that he was not paid in accordance with the 2004 Works
Council agreement. The appellant then raised a complaint with a
Labour Officer. Conciliation process failed and the dispute was
referred to compulsory arbitration. The arbitrator heard the matter
and dismissed it for the following reasons:
1.
There was no explanation as to what the claim for transport was based
on.
2.
There was nothing in the form of receipts for the claim of hotel
accommodation amounting to $384-00=.
3.
The claim by the appellant for relocation allowance in the sum of
$94-50 was valid but the appellant had already been paid $359-00, an
amount well above $94-50, thus the claim had already been taken care
of.
Aggrieved
by the arbitrator's decision, the appellant instituted proceedings
to have the arbitral award set aside by the Labour Court.
Review
Or Appeal?
The
issue before the Labour Court was whether the court was seized with
an application for review or an appeal.
The
Labour Court concluded that the application before it was a review
and not an appeal and that it had no jurisdiction to review the
arbitrator's decision. The appellant has not challenged the court a
quo's
view that it had no jurisdiction to review the arbitrator's
decision. Rather, the appellant has suggested, with scant authority,
that a court called upon to review a matter has the discretion to
treat the review as an appeal. On the record it is clear that what
was brought before the court was a review application.
However,
what complicates this matter is that the appellant, a self-actor and
layman, claims that he had intended to bring an appeal to the Labour
Court but was misled into filing a wrong application by an officer of
the Labour Court, an Assistant Registrar called Mr Muna - who was
allegedly acting in connivance with the respondent.
In
the court a
quo,
the appellant expressed his bafflement thus:
“I
was advised by Mr Muna that I should lodge a review, for if you lodge
an appeal, it may spend two years before the matter is heard in
court. As a lay person, I requested Mr Muna to help me, to assist me
for the matter to be heard quickly. He said money is requested in the
amount of US$50-00. As a person who wanted to be assisted I sought
for money. I managed to get US$40-00 and he received it and he
prepared the papers…. So where I am right now I am a confused
person, that I am given advice by members of this court, which then
leads to the matter being of no use in the same court.”
Commendably,
upon hearing of this the judge a
quo
immediately called the police to investigate. They apprehended Mr
Muna and incarcerated him pending trial. The court a
quo
reflected and concluded as follows on the matter:
“Appellant
then said that his intention was to appeal against the arbitrator's
decision, but when he came to the labour offices, he was advised by
the court's Mr Muna to make an application for a review. He took up
the advice and ended up paying $40-00. He had his application for
review prepared by Mr Muna. Looking agitated, he said that he could
not appreciate how he could be penalized when he got the advice from
the court. Unfortunately, this was wrong advice.
As
a result of this complaint against Mr Muna, investigations had to be
instituted by the Registrar concerning the alleged advice. However,
the appellant never made a request to the court to have Mr Muna
called as a witness.
What
is in the record is a well prepared application for review. Applicant
approached this court with that application. It was served on the
respondent. This is what the court had before it, and was called upon
to review.
Mr
Maguchu
having submitted that this court had no jurisdiction in terms of the
law to entertain a review against the decision of the arbitrator,
Applicant was not heard to dispute this nor was he heard to say he
was making an application for an appeal against the decision of the
arbitrator. He was neither heard to say he was making an application
for his review application to be altered to that of an appeal after
he had raised a complaint against Mr Muna. In the end result, I find
that I must deal with a review against the decision of the
arbitrator. Having addressed myself on the law…. I find that this
court has no jurisdiction to entertain the application for a review
against the decision of the arbitrator. The application is
dismissed.”
The
attitude displayed by the court a
quo
above, in my view, betrays a failure to act fairly and assist an
unrepresented litigant. Once the court had initiated the process
which led to the investigation of Mr Muna's conduct, the matter was
now squarely in the court's hands so that it could not abdicate its
responsibility and merely leave it up to the appellant to call Mr
Muna as a witness. Worse still, the same court could not further hold
it against the appellant for failure to have the witness called. The
court was seized with the fact that Mr Muna's alleged irregular
advice was the subject of the Registrar's investigation, yet it
appears to have shown no interest in the outcome of that inquiry.
However,
the matter does not end there. It gets worse. The appellant makes
even more serious allegations that the respondent's Group Human
Resources director and others were busy issuing food hampers to
labour officers, arbitrators and registrars of labour courts,
including Mr Muna, on or about the time that he was allegedly misled
into filing a review instead of an appeal.
In
his answering affidavit in the application for leave to appeal to
this Court the appellant states:
“18.
Firstly, applicant approached the Labour Court with appeal papers
against the arbitrator's award, the papers were manipulated by the
Assistant Registrar. Respondent used and still uses that manipulation
as its chief argument. It later emerged that the same respondent,
through the office of the deponent, was issuing hampers to the same
Assistant Registrar and other administrativeauthorities”
And
in his heads of argument, the appellant focused on this issue in the
following manner:
“In
casu,
the Respondent patronized and colluded with Court officers to mount
controversy on Appellant's papers which in turn Respondent sought
and still seeks to rely upon in having the matter thrown away on a
legal technicality. I refer to page 54 and 55 of the appeal record
SC38/14, wherein the Respondent's Group Human Resources Director
and others were discussing and subsequently issuing food hampers to
Labour Officers, Arbitrators and Registrars of the Labour Court to
induce an obvious outcome.”
The
appellant then attached copies of e-mail messages exchanged between
employees of the respondent, as follows:
A.
From: Innocent Magaya
Date:
20 September 2011 08:15
Lloyd
chinanhamabwe
Tabeth
Melusi
Subject:
RE: HAMPERS
----
got three hampers for the labour office, so who are the recipients?
B.
From: Lloyd Chidanhamabwe
Date:
Tuesday, September 20, 2011 8:08
Innocent
Magaya
Tabeth
Melusi
Subject:
HAMPERS
Further
to our discussion on Labour Court Registrars Hampers last week. Its
just a reminder on the issue. Their
names are Muna and Mutadzo.(emphasis
added)
C.
From: Tabeth Melusi
Date:
Tuesday, September 20, 2011 9:04Am
Augustine
Sekayi; Lloyd Chidanhamabwe; Ngoni Gamba, Innocent Magaya,
Takudzwanashe Munyanga
Subject:
Bulawayo Hampers
Augustine,
May
you please process the two hampers as per e-mail below for Innocent.
The hampers are worth $45 each. Taku---payment of $135 including
another hamper for Arbitrator- (named) here in Harare will be
delivered to your place today. Lloyd please go ahead and organize 2
hampers as per instruction.
Please
note that you need to prepare 5 hampers including 4 from the previous
week.
Regards.
And
each of these food hampers was by no means a trifling parcel but
consisted of significant grocery items as follows:5x2kg Flour, 6 x
400g Peanut Butter, 6 x 500g mixed jam, 3 x 2 litres Mazoe Orange
Crush and 1 x 5kg Roller Meal.
The
appellant pointed out that his appeal at the Labour Court was heard
on 19 September 2011 and judgment was reserved. The flurry of e-mails
quoted above occurred the very next morning 20 September following
the hearing, raising suspicion in his mind that the “gifts” were
intended to influence the outcome of his appeal. He was unsure,
however, as to when the giving out of the hampers had commenced or
how widespread the practice was. There was no evidence or allegation
that the presiding judge a
quo
or the arbitrator concerned had received any of these hampers.It
appears that this alleged interference affected only that aspect of
his appeal pertaining to the challenge of the arbitral award.
Mr
Maguchu,
for the respondent, did not deny that the respondent had distributed
food hampers as alleged, but simply submitted that the practice had
long since ceased and should have no relevance to the current
proceedings.
However,
in my view, the above allegations, though untested, are of a very
serious nature. The approach by the courts in circumstances of
alleged financial bias is that the existence of the slightest
financial interest in a matter by an adjudicator would nullify the
proceedings. The learned author Lawrence Baxter in his seminal work,
Administrative
Law,
Juta & Co Ltd, 1984 explains this apparently stricter test for
bias where pecuniary interest is involved as follows:
“Where
pecuniary interest is alleged it is usually said that, if shown to
exist, the 'smallest' or 'slightest' pecuniary interest will
be sufficient to vitiate the decision. This has led many commentators
to argue that the test for bias in cases of pecuniary interest, as
opposed to other cases of bias, is stricter than usual. There seems
to be no need to adopt such a distinction: it is perfectly consistent
to interpret the cases as stipulating that the slightest pecuniary
interest will give rise to an apprehension by the reasonable man of a
real likelihood of bias.”
I
can find no reason why this principle cannot apply to the current
case provided all the allegations are properly proved. Had such proof
been available, and the administrator shown to have had an indirect
financial interest in the outcome of the matter, having been promised
or received the food hamper for the purpose of subverting appellant's
case, any reasonable person, under such proven circumstances, would
perceive a real likelihood of bias on his part in the carrying out of
his responsibilities. However, such critical proof and linkage
between the administrator's actions and the respondent's conduct
remained too elusive on the record for this court to make a
definitive determination.
Furthermore,
the matter was not helped by the appellant's own inconsistent
submissions. For example, in his heads of argument appellant, in one
paragraph, maintains that what was placed before the court below was
an appeal and the court grossly erred in treating it as a review, but
in the very next paragraph claims that his papers were manipulated to
turn his intended appeal into a review.
Be
that as it may, the allegations and circumstances of this case are of
such a serious nature that they cannot simply be glossed over. For
any party to seek to influence Labour Court officials in such a
blatantly vile manner to decide matters in its favour or misdirect
litigants for its benefit as was allegedly done here is abhorrent in
the extreme. It strikes at, suffocates and fouls the very source and
wellspring of justice. Accordingly, one is left with no choice but to
refer this matter to the appropriate authority, the Judicial Service
Commission, to investigate and make the necessary decisions.
Whether
The Labour Court As At 19 September 2011 Had The Jurisdiction To
Review The Decision Of An Arbitrator
Before
NARE J, in the Labour Court, was an application for the review of an
arbitrator's decision. The respondent's legal practitioner stated
that the Labour Court had no jurisdiction to review the decision of
an arbitrator which point the Labour Court agreed with basing itself
on two judgments of this Court: Minerals
Marketing Corp of Zimbabwe v Mazvimavi
1995 (2) ZLR 353 (S) and Zimbabwe
Electricity Supply Authority v Maposa 1999
(2) ZLR 452 (S), which two judgments have since been rendered otiose
consequent upon the amendment of the Labour Act in 2005.
Now,
section 89 of the Labour Act prescribes the functions,
powers and jurisdiction of the Labour Court. In particular, section
89(1) in its relevant portions provides that:
“(1)
The Labour Court shall exercise the following functions -
(a)
hearing and determining applications and appeals in terms of this Act
or any other enactment;
(b)
……………………………………………;
(c)
……………………………………………;
(d)
……………………………………………;
(d1)
exercise
the same powers of review as would be exercisable by the High Court
in respect of labour matters.
[Paragraph
inserted by section 29 of Act 7 of 2005]”
(my emphasis)
GARWE
JA in the Zimasco
(Pvt)
Ltd
v Marikano
2014 (1) ZLR 1 (S) at 6F-7D explained the import of section 89(1)
(d)(1) of the Labour Act as inserted by Act No. 7 of 2005
as follows:
“The
above provisions are, in my view, clear and unambiguous. In respect
of labour matters, the Labour Court shall exercise the same powers of
review as does the High Court in other matters. The jurisdiction to
exercise these powers of review is in addition, and not subject, to
the power the court has to hear and determine applications in terms
of the Act. … The suggestion … that the Labour Court has been
given the same power of review as would be exercisable by the High
Court in respect of labour matters is, in my considered view,
incorrect and inconsistent with the provisions of the Act. I say this
for two reasons. Firstly, the Act is clear that no court, other than
the Labour Court, shall have jurisdiction in the first instance, to
hear and determine any application, appeal or matter referred to in
section 89(1) of the Act – see section 89(6) of the Act. …
Secondly, it is clear that the interpretation given relies on a
superficial reading of the wording of section 89(1)(d) [sic].
The section should be understood to mean 'the same powers of review
in respect of labour matters as would be exercisable by the High
Court' or alternatively 'the same powers of review, as would be
exercisable by the High Court, in respect of labour matters'. Any
other reading of the paragraph would clearly result in an absurdity.”
The
above interpretation by the court in Zimasco
(Pvt) Ltd was
recently applied by Patel JA in Lungu
& Ors v Reserve Bank of Zimbabwe SC1/17.
In the Lungu
matter,
the appellants challenged the Labour Court's jurisdiction to review
the decision of an arbitrator. The appellants' argument is
succinctly captured at pages 4 to 5 of the cyclostyled judgment as
follows:
“In
his heads of argument and at the hearing of the appeal, Adv. Mpofu,
for the appellants, embarked upon an excursus outside the stated
grounds of appeal into the review jurisdiction of the Labour Court.
He submits that section 89(1)(d1) of the Labour Act [Chapter
28:01]
limits that court to the same review powers as are exercisable by the
High Court. Therefore, since the review of arbitral awards cannot be
instituted in terms of the High Court Act [Chapter
7:06]
but only under the Model Law scheduled to the Arbitration Act
[Chapter
7:15],
it follows that the Labour Court, being a creature of statute and
having no inherent jurisdiction, cannot review the decisions of
arbitrators. Adv. Mpofu
relies for this proposition upon the decisions in Catering
Employers Association of Zimbabwe
v Zimbabwe
Hotel and Catering Workers Union & Another
2001 (2) ZLR 388 (S) and National
Social Security Authority
v Chairman,
National Social Security Authority Workers Committee & Others
2002 (1) ZLR 306 (H).
In
the Catering
Employers Association
case, it was held that Article 34(2) of the Model Law sets out the
sole grounds on which the High Court may set aside an arbitral award.
The court cannot therefore rely on the grounds set out in section 27
of the High Court Act to set aside an arbitral award on review. This
position was adopted in the National
Social Security Authority
case on the somewhat questionable basis that the general power to
review proceedings conferred by section 26 of the High Court Act does
not extend to arbitral awards because an arbitrator does not fall
into any of the stipulated categories, i.e.
inferior courts of justice, tribunals or administrative authorities.
In any event, it was reaffirmed that the narrow grounds on which an
arbitral award may be set aside are set out in Article 34 of the
Model Law, and recourse to the courts against an award may only be
made by way of an application under that article. The legislature had
in enacting the Model Law, so it was held, deprived the High Court of
its inherent jurisdiction to review the conduct of an arbitrator.”
Patel
JA in the Lungu
matter
dismissed the appellants' argument where at pages 6 to 7 of the
cyclostyled judgment he preferred the interpretation in the Zimasco
judgment
by stating:
“I
fully endorse the above reasoning. The only possible meaning and
effect to be ascribed to section 89(1)(d1) of the Labour Act is that
the Labour Court has the same power to review any inferior
proceedings in labour matters on the same grounds of review as may be
invoked by the High Court in the exercise of its powers of review in
relation to other matters not embraced by the Labour Act.
The
interpretation propounded by Adv. Mpofu
is not only specious in that it divests the Labour Court of the full
breadth of its oversight in labour matters but also absurd in that
any procedural or other irregularity committed by an arbitrator would
be rendered wholly unreviewable, whether by the Labour Court or the
High Court. That surely could not have been the intention of
Parliament in the enactment of section 89 of the Labour Act.”
It
is critical to note that the Labour Court's jurisdiction to review
the decision of an arbitrator in terms of section 89(1)(d1) of the
Labour Act became effective as from 2005. At the time that the
matter came before the Labour Court in 2011 and the judgment was made
which then became the subject of this appeal, the Labour Court had
the power as prescribed by the law to review an arbitrator's
decision. This power was clearly explained by this Court in the
Zimasco
and
the Lungu
judgments
as referred to above. Therefore, the court a
quo
misdirected itself in declining jurisdiction in the mistaken view
that it could not review an arbitrator's decision when in point of
law it had the powers to do so. The matter should be remitted back
to the Labour Court to exercise the powers of review that it is
clearly imbued with.
Appeal
Against Dismissal
As
regards the second matter, the court below found as follows:
“Applicant
was initially represented by a (Trade) Union, which withdrew at the
last minute, having realized that it had not submitted the grounds of
appeal in time. Despite advice by the Union, that the case must not
go on because no grounds of appeal had been filed when the appeal was
noted, Appellant decided to go on on his own. He, therefore,
approached the court without any proper grounds of appeal.
Mr
Maguchu
argued that the appeal could not be entertained by the court because
the grounds of appeal were filed six months after the notice of
appeal was made. This was contrary to the law and therefore the
appeal was a nullity. The appellant was supposed to withdraw those
grounds of appeal and then proceed to make an application for
condonation.
I
agree…
The
rules were not followed in this case, so the appeal on its own is a
nullity. It ought to be dismissed.”
The
above finding that the appeal before the court a
quo
was a nullity has not been challenged in this appeal. As long as the
finding remains extant, appellant cannot challenge the merits of an
appeal which was held to be a nullity. By not appealing against that
finding, he has accepted the appeal to be a nullity. See First
Banking Corporation Ltd v Marimo
SC 57/05 and Dlodlo
and Ors v Road Motor Services (Pvt) Ltd
SC 59/06.
Since
it is improper for this Court to determine the merits of what is
admittedly a nullity, the grounds of appeal pertaining to the
appellant's dismissal are irregular and ought to be dismissed.
Disposition
The
appeal succeeds in part. The purported appeal by the appellant
against his dismissal from employment ought to be dismissed. Costs on
the ordinary scale would naturally follow upon such an outcome.
However, the challenge of the dismissal of the proceedings pertaining
to the arbitrator's award must succeed with costs.
Accordingly,
it is ordered as follows:
1.
The appeal succeeds in part.
2.
The appeal against his dismissal from employment is dismissed with
the appellant bearing the costs thereof on the ordinary scale.
3.
The appeal pertaining to the arbitrator's award is allowed with
costs on the ordinary scale to be borne by the respondent.
4.
The matter relating to the challenge of the arbitrator's award is
remitted to the Labour Court for consideration on the merits before a
different judge.
5.
This judgment and the record are referred to the Judicial Service
Commission for it to investigate and take appropriate action on
matters raised herein.
GARWE
JA: I
agree
GOWORA
JA: I
agree
Dube,
Manikai & Hwacha,
respondent's legal practitioners
