GOWORA
JA:
This is an appeal against a judgment of the Labour Court dismissing
the first appellant's, a labour officer, application for
confirmation. The ruling was in favour of the second appellant, a
former employee of the respondent, who was dismissed from employment
sometime in March 2016 on allegations of certain acts of misconduct
including theft and/or fraud. At the hearing of the appeal, we
allowed the appeal and issued an order in the following terms:
IT
IS ORDERED THAT:
1.
The appeal be and is hereby allowed with no order as to costs.
2.
The proceedings before the Labour Officer and the Labour Court be and
are hereby set aside.
2.1
The matter is remitted to the Labour Court to be heard as an appeal
against the decision of the designated appeals officer in terms of
section 92(1) of the Labour Act.
3.
The second appellant herein shall file his notice of appeal to the
Labour Court within 15 days from the date of this order.
3.1
Thereafter, the matter shall proceed in terms of the Labour Court
Rules.
We
indicated that reasons for judgment would follow. These are they.
FACTUAL
CONSPECTUS
The
second appellant was employed by the respondent as an administration
clerk in charge of cash sales. He was in the respondent's employ
for a period running from May 1998 until March 2016, when he was
dismissed from employment following allegations of misconduct.
The
background relating to the dismissal is the following.
On
29 February 2016 the second appellant was issued with a charge letter
detailing the grounds upon which the misconduct charges were
premised. He was charged with theft or fraud in breach of section
4(d) of the Labour (National Employment Code of Conduct) Regulations,
2006 (S.I. 15/2006), also commonly known as the Model Code of
Conduct.
It
was alleged that sometime in October to November 2015, he was
assigned by management to backstop one Shayne Mbizi who was going on
leave and, that, during the course of that period the appellant
failed to account for R1,780 and USD600 respectively.
The
respondent alleged that during the period in issue, the second
appellant had:
(a)
On 29 October 2015, been given a cash sales book together with sales
for that day. Among those sales was R1,780 as per receipt number
018461. The said amount was neither posted onto the daily cash book
nor was it banked with the cash office as per the company practice.
(b)
On 2 November 2015, received USD1,200 in cash sales but had only
posted USD1,000 onto the cashbook. In terms of receipt number 018529
received a cash sale of USD286 but only USD186 was posted onto the
cashbook.
(c)
On 16 November 2015, posted USD120 from receipt number 018538 valued
at USD220 and as a result USD100 was not remitted to the cash office.
(d)
On 18 November 2015, a receipt number in the name of a client one
Thomas Knowledge indicated a cash payment of USD546 but only USD446
was posted onto the cash sale.
In
response to the charge letter, the second appellant accepted
indebtedness of the USD600 and, as far as the issue of the missing
R1,780 was concerned, he requested that further investigations be
conducted.
Pursuant
to the charges, disciplinary proceedings were conducted wherein the
second appellant was found guilty and dismissed from employment.
An
internal appeal was lodged to the appeals committee which upheld the
decision of the disciplinary authority.
Thereafter,
the second appellant approached the Ministry of Public Service,
Labour and Social Welfare with a complaint of unfair dismissal.
The
parties then appeared before the first appellant for conciliation.
They
reached a stalemate which led to the subsequent issuance of a
certificate of no settlement.
The
first appellant, the labour officer, then proceeded to deal with the
matter in terms of section 93(5)(c) of the Labour Act [Chapter
28:01].
Before
the labour officer, the second appellant raised six grounds of appeal
in which he contended that he had been wrongly accused of the said
charges. He further argued that the acknowledgment of debt which he
is said to have purportedly written was fabricated. In his final
submissions, the second appellant argued that these charges were a
ploy by the respondent to deprive him of his retrenchment package.
The
respondent opposed the second appellant's case in all material
respects.
Following
the arguments, the labour officer made a ruling in favour of the
second appellant. She overturned the decision of the disciplinary
committee on the basis that the respondent had failed to prove its
case beyond a reasonable doubt. In arriving at this decision,
reliance was placed on the case of Astra Industries Ltd v Chamburuka
SC 27/12.
The
labour officer consequently ordered the reinstatement of the second
appellant without loss of salary and benefits.
It
is this ruling which was subject of confirmation before the court a
quo in terms of section 93(5a) and (5b) of the Labour Act.
The
application for confirmation was opposed.
The
issue for determination before the court a quo was whether or not the
second appellant was unfairly dismissed.
Contrary
to the findings of the labour officer the court a quo held that the
onus of proof in disciplinary proceedings was on a balance of
probabilities.
The
court a quo held that the labour officer had erred in placing
reliance on the case of Astra Industries Ltd v Chamburuka (supra).
In
assessing the charge on a balance of probabilities the court a quo
found that there was no unfair dismissal and proceeded to dismiss the
application for confirmation.
Aggrieved
by the decision of the court a quo, the second appellant noted an
appeal to this Court on the following grounds:
“(a)
The court a quo erred on a point of law in finding that the second
appellant (the employee) had the onus to prove the admitted fact that
in compiling the electronic cash book he had relied only upon the
cashier's handwritten notes.
(b)
Further, the court a quo erred on a point of law in not finding that
the respondent had failed to prove the essential elements of theft or
fraud.
(c)
Further, the court a quo misdirected itself in interfering with the
labour officer's factual findings which had not been proved to be
irrational or grossly unreasonable.”
ARGUMENTS
ON APPEAL
Although
the labour officer was cited as the first appellant she has not
participated in this appeal nor has she filed any documents. That is
the proper way of dealing with the dispute as she is not a litigant.
She would only have filed the application for confirmation in
compliance with the law. She would therefore have no interest in the
matter and we heard the appeal in her absence.
In
his heads of argument, the second appellant argued that the court a
quo erred in holding that he, the second appellant, had the onus to
prove an admitted fact.
The
appellant argued that the nature of the court a quo's misdirection
in that regard was such that the conclusion arrived at by the court a
quo was per incuriam.
The
appellant further argued that the court a quo erred when it failed to
make a finding that the respondent had failed to prove the essential
elements of theft or fraud.
It
was his argument that the respondent failed to prove its case even on
a preponderance of probabilities and as such the court a quo ought
not to have found in its favour.
In
his final submissions the appellant averred that the court a quo
misdirected itself when it interfered with the factual findings of
the labour officer without a finding of irrationality on the part of
her decision.
Per
contra, the respondent argued that the key issue for determination
was whether or not the court a quo had erred in making its decision.
The
respondent argued that the burden of proof in labour proceedings was
proof on a balance of probabilities therefore the appellant had
failed to interpret the position in Astra Indutries v Chamburuka
(supra).
It
further argued that what determines where the onus of proof lies is
the person who makes the allegations. In casu, the respondent argued
that it was the appellant making the allegations and therefore, on
principle, he must be able to prove the point.
The
respondent further argued that the court a quo was not in error as
such the appeal ought to be dismissed with costs.
Although
the parties have made arguments on the merits, it is our view that a
more fundamental issue pertaining to the procedure adopted by the
parties, including the labour officer, in the resolution of the
matter arises in this case.
It
is imperative to note that a claim for unfair dismissal was brought
by the second appellant in terms of S.I 15/2006 subsequent to the
dismissal of an appeal by the appeals authority.
The
court notes that the disciplinary authority, when hearing the matter,
made factual findings which were confirmed by the designated appeals
officer.
It
is against this background that the court takes the view that a
properly considered critical analysis of the proceedings before the
labour officer under section 93 be made to establish whether or not
those proceedings in question were properly before the labour officer
in the first place.
In
that regard the issues that arise for determination are the
following:
(i)
The ambit of the jurisdiction of a labour officer under section 93 of
the Act where a matter is referred to him or her in terms of section
8(6) of the Labour (National Employment Code of Conduct) Regulations
S.I. 15 of 2006, otherwise referred to as the Model Code of Conduct;
and
(ii)
Consequent thereto whether or not the subsection is consistent with
sections 101 and 92D of the Labour Act [Chapter 28:01] (the Act) as
well as section 12B thereof.
We
are indebted to counsel for undertaking further research and
submitting additional written submissions to the court so that
clarity on this issue may be achieved.
Mr
Gama, on behalf of the appellant, made the following submissions.
He
submitted that sub-section (6) of section 8 of the Model Code of
Conduct is inconsistent with sections 92D and 101(5) of the Act.
In
this regard he sought reliance on the authorities of Mwenye v Lonrho
Zimbabwe Ltd 1999 (2) ZLR 429 (S) and Watyoka v Zupco (Northern
Division) 2006 (2) ZLR 170 (S).
In
consequence thereto, he has submitted that due to the inconsistency,
subsection (6) of section 8 of the Model Code of Conduct should be
struck down.
On
the other hand, Mr Chiwara, counsel for the respondent, has argued an
alternative position to that presented by Mr Gama.
He
urged the court to find that there is in fact no conflict between the
provisions of the Act and the Model Code of Conduct.
Further
to the above, counsel has urged the court to find that a labour
officer has the requisite jurisdiction to deal with a matter referred
to him on the basis that a dismissal has been effected in
contravention of section 12B(3) of the Act.
THE
ISSUES AND DISPUTES FOR DETERMINATION BY A LABOUR OFFICER FOLLOWING A
REFERENCE UNDER SECTION 101 OF THE ACT
Although
the issues for determination in this appeal emanate from a reference
of an unfair dismissal under section 8(6) of the Model Code of
Conduct, the enabling legislative provision for such reference is
section 101, in particular subsections (5) and (6) thereof.
The
law provides:
“(5)
Notwithstanding this Part, but subject to subs (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 subs (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.”
The
Labour Act has been subjected to numerous amendments ever since it
was initially promulgated as the Labour Relations Act [Chapter
28:01], ultimately ending as the Labour Act as it is currently known.
For
some reason, section 101 has remained in the same format as it was
with minor amendments which are not pertinent for the resolution of
this dispute.
Subsections
(5) and (6) have been considered by this Court in order to ascertain
what it is that a labour officer is empowered to do or determine upon
reference of a matter to such labour officer in terms of section
101(5) or (6).
Section
101(5) under the former Labour Relations Act was considered by this
Court in Mwenye v Lonrho Zimbabwe 1999 (2) 429 (S). At 433C-434B,
GUBBAY CJ remarked as follows:
“Section
93(1) vests in a labour relations officer a general jurisdiction to
deal with any dispute, either on his own initiative or on reference
to him by one of the parties. Section 101 of the Act (then as s117A)
was introduced on January 1, 1993 by the Labour Relations Amendment
Act 12 of 1992. It then became possible for an employment code of
conduct, binding in respect of a particular industry, undertaking or
workplace, to be registered, provided it contained the matters
specified in s101(3) of the Act.…
Against
this background, it does not seem to me that the legislative
objective introducing the new procedure was to relieve labour
relations officers of the burden of determining disputes. It was
rather to return to the employee and employer a greater degree of
autonomy with regard to the determination of their disputes than
previously enjoyed.
Section
101(5) of the Act is, in effect, an exception to section 93.
It
is a provision designed for the benefit of the parties. As long as
the dispute or matter is: (a) the subject of proceedings under a
code; or (b) liable to be the subject of proceedings under a code; no
labour relations officer may intervene.
His
power to determine or otherwise dispose of the matter under section
101(6) is placed in abeyance for a period of thirty days. This is to
afford the parties, should one of them so wish, the opportunity to
utilize the internal mechanisms specified in the code.
Consequently,
if either party were to refer the matter to a labour relations
officer before the expiry of the thirty day period, the other could
raise section 101(5) as a defence.
On
the other hand, where the parties are ad idem that their dispute is
incapable of resolution under the code, or both deem it more
advantageous to have it determined by a labour relations officer,
then the dispute or matter is no longer 'liable' to be the
subject of proceedings under the code. It may be referred immediately
to a labour relations officer.”
The
import of this authority is to illustrate the ambit of the
jurisdiction of the labour officer under section 93.
In
other words does a labour officer have carte blanche to deal with the
matter as he sees fit or is his jurisdiction specific?
The
import of these provisions was considered by this Court in Watyoka v
Zupco (Northern Division) 2006 (2) ZLR 170. At p172F-173D, this Court
said:
“There
are, therefore, three important conditions under which such matter
can be referred to a labour relations officer:
(a)
The matter must not be one that 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 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 delay.
Subsection
(6) of section 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.” (my emphasis.)
And
later at p173H-174A, the court put the issue beyond any doubt and
stated:
“The
section cannot be read as providing for a second determination over
and above the 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.” (My
emphasis)
And
later still at p175B-C:
“In
this case, by the time the matter was entertained by the labour
relations officer, two separate provisions had ousted his
jurisdiction. They were, firstly, the fact that a determination had
been made, and secondly, the dispute had prescribed in terms of
section 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, a period of about eighteen months, and
well beyond the period of one hundred and eighty days provided in
section 94(1)(b).”
Although
this Court has clearly set out the procedures applicable when a
matter is referred to a labour officer in terms of section 101, it is
evident that the process is fraught with confusion.
In
fairness to the parties involved in this debacle, the incidence of
the Model Code of Conduct and the provisions of section 8(6) and (7)
might have to a large extent contributed to the confusion.
It
is imperative therefore that the role of a labour officer under the
enabling sections be examined.
WHAT
IS THE JURISDICTION OF A LABOUR OFFICER UNDER SECTION 93 OF THE ACT
The
issue before the court is a simple one: what are the powers
exercisable by a labour officer in terms of section 93 of the Act?
A
labour officer is not a stand-alone court or tribunal and exercises
his or her powers upon reference to him of matters or disputes.
Viewed
in this context one does not envisage any issue over the exercise of
those powers under the Act.
The
labour officer is a creature of the Act. He is imbued with certain
and specified duties and obligations under the Act and perforce his
powers are only to be exercised as defined in the Act. Therefore, the
jurisdiction that he is empowered to exercise and the nature of the
relief that he provides after an exercise of such jurisdiction must
be found in the Act.
It
cannot emanate from any other source.
However,
a ticklish question on the exercise of this jurisdiction may arise in
this regard mainly emanating from the provisions which stipulate the
matters in terms of which the labour officer exercises his
jurisdiction and make provision for the reference of such matters to
the labour officer.
Section
93 is not a standalone provision. It must be read with other
provisions in the Act or related provisions from codes of conduct. It
is therefore to the Act that one must look, in particular section
93(1), (2) and (3).
Section
93 as amended by Act 5 of 2015 reads:
“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 ss
(1), the labour officer shall issue a certificate of no settlement to
the parties to the dispute or unfair labour practice.”
The
question is what dispute is a labour officer empowered to preside
over in terms of section 93(1).
The
clear principle that emerges from the authorities in which section 93
has been considered is that his mandate is to preside over a fresh
hearing wherein a complaint has been lodged against an employer or
there exists a dispute between the parties.
Consequently,
his jurisdiction is limited to matters where there are allegations of
unfair labour practices or unfair dismissal.
Unfair
labour practices are defined in section 8 of the Act and include a
whole host of wrongs that an employer may be guilty of in the work
place.
This
is not the complaint here.
On
5 May 2016 the designated Appeals Officer advised the second
appellant in writing that his appeal had not been successful. The
latter acknowledged receipt on 9 May 2016.
On
29 April 2016 he filed a complaint with the Ministry of Public
Service Labour and Social Welfare, alleging “an unfair dismissal”.
On
3 May 2016 the labour officer notified the parties to appear before
her for a hearing on 7 May 2016.
On
17 May 2016, the labour officer issued a certificate of no
settlement.
On
some unnamed date she advised the parties to file submissions for her
consideration. It is common cause that she issued a draft ruling on 5
September 2016, which ruling was the subject of the application for
confirmation which was refused by the Labour Court. She stated
therein that she had determined the matter in accordance with section
93(5)(c) of the Act.
In
his submissions before the labour officer the second appellant made
allegations that there had been a delay in the determination of his
appeal, even though at the time he lodged the complaint he had been
notified of its dismissal.
I
note that he did not seek an appeal before the labour officer.
The
respondent filed a response in which it responded to the complaints
on the merits. It also feebly raised a point in limine on the
procedure adopted by the second appellant.
The
labour officer was of the opinion that the second appellant had
lodged an appeal for determination by her.
This
is confirmed by the labour officer making reference to the following
grounds of appeal as being issues for determination before her:
“1.
Wrongly accused of stealing 1,730 Rands (one thousand seven hundred
and thirty rands);
2.
Wrongly accused of stealing/misrepresenting US600 (six hundred
dollars);
3.
Withdrawal of police report;
4.
Fabricated acknowledgement of debt;
5.
Report to Ministry of Labour and subsequent courtesy call from M C
Meats Human Resources;
6.
Prejudiced of retrenchment package.”
The
labour officer thereafter proceeded to analyze the facts and consider
the applicable law. She then addressed the grounds of appeal. After
this exercise she went on to quash the conviction of the second
appellant on the misconduct charges and ordered that he be reinstated
to his original position without loss of salary and benefits. In
making this ruling she said:
“It
is clear from what has been discussed above that, the Respondent
failed to prove its case that the appellant contravened section 4(d),
theft or fraud (sic) of the National Employment Code of Conduct S.I.
15 of 2006. In light of the above, the conviction of Appellant be and
is hereby quashed. The Respondent be and is hereby ordered to
reinstate the appellant to his original position without loss of
salary and benefits from the date of dismissal within 30 days of
receipt of the ruling.”
A
perusal of the ruling issued by the labour officer will tend to show
that the proceedings conducted by her were in effect an appeal
against the decision of the designated Appeals Officer dismissing the
second appellant's appeal against the findings of guilt by the
disciplinary authority and the penalty of dismissal meted out as a
result.
Undoubtedly
she was acting as an appeal tribunal.
A
simple reading of the subsections of section 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 section 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 section 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.
In
casu, since the disciplinary proceedings against the appellant were
conducted under the aegis of the Model Code of Conduct it stands to
reason that the matter was referred to a labour officer in accordance
with the provisions of the same.
Section
8(6) and (7) thereof provide as follows:
“(6)
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
seven working days of receipt of such decision.
(7)
The Labour Officer or an Employment Council Agent to whom a case has
been so referred shall process the case as provided for under section
93 of the Act.”
Section
8 of the Model Code of Conduct is concerned with the respective
parties rights in a disciplinary process to appeal against a
determination made in terms of the Code.
Provision
is made in the section for internal processes of appeal against
determinations of formal tribunals at the workplace.
To
be fair, a simple reading of the above statutory provisions would
appear to suggest that a reference to a labour officer or an
Employment Council Agent under the same is an appeal.
To
place the matter in its proper context regard must be had to the
provisions in the Act which permit a reference to a labour officer or
an Employment Council Agent as the case may be.
Therefore,
and in addition, regard must be had to section 101(5) and (6) which
empower a labour officer to exercise powers inherent in such officer
under section 93.
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.
The
finding that the labour officer had no jurisdiction to entertain the
matter disposes of the issue.
In
casu, it matters not that the labour officer went on to decide the
matter under section 93(5) after which she issued what she termed “a
draft ruling”.
That
is not an issue for consideration before the court as nothing turns
on that ruling.
The
method by which she arrived at a draft ruling is as a result of no
consequence to the determination of this appeal. The reason I say
this is that section 93(5) does not empower a labour officer to
examine earlier proceedings and make a determination as to their
correctness.
That
said, it only remains for me to consider the relationship of section
8(6) of the Model Code of Conduct with section 93 and section 101 of
the Act.
It
seems to me that section 8(6) of the Model Code of Conduct appears to
be out of sync with the whole section. It seems to suggest that a
party aggrieved by a decision or manner in which an appeal has been
conducted has a right of appeal to a labour officer in terms of
section 93 of the Act.
To
my mind this is obviously incorrect, if regard is had to the wording
of section 93.
The
powers bestowed upon a labour officer under the section are confined
to disputes related to unfair labour practices or unfair dismissals.
A
reference under section 8(6) cannot be defined as relating to either
an unfair labour practice or unfair dismissal.
Given
the scenario related above, what is it that the labour officer was
presiding over?
What
then is the import of section 8(6) and (7) of the Model Code of
Conduct in terms of which this dispute was referred to the labour
officer?
Is
the reference meant to give the parties an opportunity to present
their respective positions to the dispute before the labour officer
afresh and for him to make a determination?
Is
the labour officer exercising review or appeal powers and in
accordance with which provision of the Act?
If
regard is had to the nature of the disputes that a labour officer is
mandated to deal with it becomes clear that the jurisdiction is
limited to a dispute or unfair labour practice or unfair dismissal.
When
one has regard to section 8(6) of the Model Code one may be misled
into assuming that even completed disciplinary hearings should be
referred to a labour officer.
It
is not suggested in the Act that the labour officer in this context
can exercise powers of appeal or review.
In
casu, a determination on the merits had been made by the disciplinary
authority as provided for in the code of conduct. The reference to
the labour officer in terms of section 8(6) of the Model Code of
Conduct would as a consequence seem to be in direct conflict with the
provisions of section 101(5) and (6).
And
yet, under the various provisions of the Act and the Model Code of
Conduct a labour officer has been imbued with the power to entertain
parties to a dispute without any apparent restriction.
The
nature of the disputes he can entertain is not specifically defined.
They
have to be construed by reference to section 93(1) in order to
achieve clarity.
An
exercise of power under section 93 must be provided for in terms of
the Act itself. Reference must therefore be had to section 101 of the
Act, which reads in relevant part:
“101
Employment Codes of Conduct
(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.”
A
perusal of the Act will show that the only section providing for
reference of a matter to a labour officer for intervention under
section 93 is to be found in section 101(6). And yet when read with
subsection (5) of the same section it becomes evident that the
procedure adopted before the labour officer was not permitted by law.
In
this context the implications of what the labour officer did are
obvious.
First
she assumed jurisdiction to entertain a matter which the law did not
sanction. An appeal against proceedings under the code can only lie
to a court or a tribunal which is empowered by law to act as an
Appeal Court or tribunal.
In
casu, the labour officer assumed unto herself the jurisdiction that
is imbued by law in an Appellate Court or tribunal.
A
labour officer is not an appeal structure for purposes of section 93
of the Act, nor can that power be read into the section no matter
where the referral of a dispute or matter emanates from.
The
view I take therefore is that a labour officer is empowered to
determine complaints of unfair labour practice and unfair dismissal
where there has not been any procedural process that has been
completed.
His
jurisdiction is limited to that of a tribunal of first instance.
There
is a presumption that the Legislature does not intend to alter the
law, whether it is statutory or common law, unless it provides so in
specific terms. This presumption is fundamental to the interpretation
of statutory provisions.
As
a result, courts are enjoined as much as possible to construe
statutes in a manner that seeks to reconcile seemingly contradictory
provisions.
The
appellant in this dispute was charged with misconduct in terms of the
Model Code of Conduct after which he was dismissed from employment.
It is therefore clear to the naked eye that he could not lodge a
complaint with the labour officer alleging unfair dismissal.
The
labour officer would not have the jurisdiction to entertain any
complaint from the appellant as what the appellant was seeking was
the setting aside of the determination of the disciplinary process.
She
also, again without being having the jurisdiction to even hear the
parties, set aside findings of fact made by a tribunal of first
instance without regard to settled principles by which such findings
should be set aside.
These
same findings of fact reached by the disciplinary authority were
confirmed by the appeal structures of the respondent.
To
describe the process by which this decision was reached as being
irregular is mild. It is not only irregular, it was unlawful and
nothing can stand on that decision.
The
provisions of section 8(6) and (7) of the Model Code of Conduct must
be read together with the Act under which the statutory instrument
was promulgated. Where the Code conflicts with any provision of the
Act, it stands to reason that the provisions of the Act must prevail.
Section
2A(3) provides that the Act shall prevail over any enactment which is
inconsistent with it.
DISPOSITION
In
my view, the principle emerging from all the authorities referred to
above can be summarized by the statement to the effect that a labour
officer does not have any jurisdiction under section 93 to entertain
a matter once a determination on the merits has been made through a
disciplinary process under a registered Code of Conduct.
It
is clear that the labour officer presided over a matter over which
she did not have any jurisdiction.
As
stated in Watyoka's case (supra), once there is a determination on
the merits of a dispute a labour officer has no jurisdiction under
section 93 of the Act. Accordingly, the subsequent procedures were a
nullity as the labour officer could not subsequently purport to make
factual findings on the same matter.
I
conclude therefore that the labour officer did not have jurisdiction
to hear a complaint from the appellant of whatever nature and
therefore the proceedings conducted under section 93(5)(c) by the
labour officer were as a result an irregularity.
In
addition, the proceedings before the Labour Court to confirm the
ruling were also a nullity.
This
Court is of the view that the matter should have been brought before
the Labour Court as an appeal. Both counsel were in agreement with
this position.
This
finding has necessitated the writing of the present judgment so as to
give the position that should obtain where a dispute is dealt with in
terms of an employment code of conduct.
In
addition it is necessary, in order that the apparent confusion that
exists between the Act and section 8(6) of the Model Code as
highlighted in this judgment be rectified, that the relevant Minister
responsible for the administration of the Act be appraised of the
need to call upon the Legislature to align S.I 15/2006 to its parent
statute, the Labour Act.
It
is for the above reasons that this Court issued an order as described
above.
PATEL
JA: I agree
BERE
JA: I agree
Gama
& Partners, second appellant's legal practitioners
Coghlan,
Welsh & Guest, respondent's legal practitioners
