MAKONI
JA:
This is an appeal against the whole judgment of the Labour Court
handed down on 11 November 2022 wherein it dismissed the appellant's
appeal against a decision of a Designated Agent of the National
Employment Council for Rural District Councils.
FACTUAL
BACKGROUND
The
respondent was employed by the appellant as a Housing Officer. He was
indicted for a disciplinary hearing on 11 November 2017 before the
appellant's Disciplinary Committee. He was charged with 'committing
any act or conduct inconsistent with the fulfilment of the express or
implied conditions of the contract of employment' in terms of
clause 8(d) of Statutory Instrument 87/2017, specifically that he
unilaterally and unlawfully exempted some council tenants from paying
rentals which resulted in the appellant losing revenue.
The
Disciplinary Committee found in favour of the employer and dismissed
the respondent. He then appealed the decision to the Internal Appeals
Committee which upheld the decision of the Disciplinary Committee.
Aggrieved by the decision, the respondent again appealed to the
National Employment Council Exemptions Committee (“the Exemptions
Committee”) which set aside the decision of the Internal Appeals
Committee and referred the matter back to the Disciplinary Committee,
for a hearing de novo, on the basis that the Disciplinary Committee
was not properly constituted when it presided over the matter.
The
matter was heard again by the Disciplinary Committee and it reached
the same verdict and penalty. The respondent then appealed to the
Internal Appeals Committee which, again, upheld the dismissal.
On
13 March 2018, he further appealed the dismissal to the Exemptions
Committee which heard the matter on 14 March 2018. On the basis that
the Exemptions Committee failed to conclude the matter within the
time stipulated in section 14 of SI 87/17 and on 26 November, 2018
the respondent wrote to the Designated Agent advising him of that
fact.
Consequent
to the respondent writing to the Designated Agent complaining about
the failure by the Exemptions Committee to determine the matter
within 30 days, the Exemptions Committee handed down reasons for its
determination on 4 December 2018.
On
11 March 2021, the respondent filed an appeal with the Labour Court
under cover of case number LC/H/57/19 seeking a referral of his
appeal in accordance with clause 14(c) of SI 78/17.
He
was seeking that the appeal be disposed of by the Designated Agent
due to non-observance of the timelines and the lack of jurisdiction
of the Exemptions Committee.
The
grounds of appeal were couched as follows:
1.
The Exemptions Committee erred at law in determining a matter without
jurisdiction outside the prescribed thirty (30) working days and
after the matter had been referred to the designated agent for
disposal.
2.
The Exemptions Committee erred at law in making a determination
without providing reasons for such determination.
The
respondent sought the following relief:
'(a)
That the appeal succeeds with costs.
(b)
That the decision of the Exemptions Committee be set aside.
(c)
That the matter shall be disposed of by the Designated Agent in
accordance with section 93 of the Labour Act in terms of the referral
made by the appellant on 26 November, 2018.'
On
22 May 2020, the Labour Court allowed the appeal under case number
LC/H/57/19. It granted the following order:
“(a)
That the instant appeal succeeds with costs.
(b)
That the decision of the Exemptions Officer be set aside.
(c)
That the matter be disposed of by the Designated Agent in accordance
with section 93 of the Labour Act in terms of the referral made by
the respondent.”
The
respondent then approached the Designated Agent on the basis of this
order of the Labour Court.
On
21 June 2021, the parties attended proceedings before the Designated
Agent who advised the parties that he would proceed in terms of
section 63(3a) of the Labour Act (the Act).
The
parties were invited to file written submissions and the Designated
Agent proceeded to pronounce on the matter on 19 October 2021.
In
his determination, he made a finding that he lacked the requisite
jurisdiction to preside over the matter as it raised review grounds.
He, however, went on to deal with the substantive aspects of the
matter and ultimately gave an order reinstating the respondent.
Disgruntled
by the determination of the Designated Agent, the appellant appealed
to the court a quo on 17 November 2021. The court found that the
Designated Agent properly dealt with the matter.
It
found that the issue of grading was before the Designated Agent and
that he properly disposed of it. In addition, it found that the
reinstatement of the respondent was proper as reinstatement could be
ordered where the merits of the matter have not been entertained. In
the result, the court a quo dismissed the appeal.
It
is against this judgment that the present appeal was noted.
SUBMISSIONS
ON APPEAL
At
the hearing of the appeal, the court asked counsel for the appellant
to address the question of whether section 63(3a) as read with
section 93 of the Act confer appellate jurisdiction on a Designated
Agent in view of the referral of an appeal to him by the Labour
Court.
Counsel
for the appellant submitted that the matter was referred for hearing
before the Designated Agent as an appeal. He contended that the
Exemption Committee was seized with an appeal that it failed to
conclude within the prescribed 30 days hence the appeal was then
placed before the Designated Agent.
He
submitted that section 63(3a) of the Act does not confer appellate
jurisdiction on Designated Agents but that a provision in SI 87/17
allows for matters not determined within the stipulated timeframe to
be referred to a Designated Agent.
He
asserted that Designated Agents have no such powers to hear appeals.
It
was his submission that the Labour Court ought to have presided over
the matter instead of deferring it to the Designated Agent. He relied
on section 14 of SI 87/17 which provides that an appeal against the
determination of the Exemptions Committee lies with the Labour Court.
Counsel
submitted that if a matter is not concluded within 30 days, it is
then supposed to be referred to the Designated Agent who will dispose
of it in accordance with section 93 of the Act.
On
the merits, counsel submitted that the court a quo erred in upholding
the decision of the Designated Agent when he had conceded that he did
not have jurisdiction but nonetheless went on to deal with the
substance of the matter.
In
addition to this, it was his contention that the court a quo
misdirected itself by upholding the appeal and reinstating the
respondent without having dealt with the merits of the matter.
In
this light, he moved that the matter be remitted to the Labour Court
to deal with the matter on the merits and that the decision of the
Designated Agent be set aside.
He
also stated that if the respondent's contention was that his matter
was not heard within 30 days, the correct procedure available to the
respondent was to file an application for review and not launch an
appeal as he did.
Conversely,
the respondent submitted that his appeal lay with the Designated
Agent in terms of section 14 of SI 87/17 given that the matter was
not heard and concluded by the Exemptions Committee within 30 days.
He was convinced that the determination of the Designated Agent
despite the absence of jurisdiction was proper as well as the
accompanying order for reinstatement. He believed that the Designated
Agent has powers conferred upon him to give redress in matters such
as his.
THE
LAW
Section
63(3a) of the Labour Act provides as follows:
“(3a)
A designated agent of an employment council who meets such
qualifications as may be prescribed shall, in his or her
certification of appointment, be authorised by the Registrar to
redress or attempt to redress any dispute which is referred to the
designated agent or has come to his or her attention; where such
dispute occurs in the undertaking or industry and within the area for
which the employment council is registered, and the provisions of
Part XII shall apply, with the necessary changes, to the designated
agent as they apply to a labour officer.”
It
is common cause that the provision that confers power on the
Designated Agent to give redress to parties is section 63(3a) of the
Labour Act.
The
role of a Designated Agent was explained in the judgment of Isoquant
Investments (Pvt) Ltd t/a Zimoco v Darikwa CCZ 6/20 wherein the court
remarked as follows at p29:
“Section
63(3a) of the Act allows a designated agent, upon authorisation by
the Registrar of Labour, to either redress or attempt to redress any
dispute which is referred to the designated agent or has come to his
or her attention. That is the case where such dispute occurs in the
undertaking or industry and within the area for which the employment
council is registered. Section 63(3b) of the Act expressly ousts the
jurisdiction of a labour officer where a designated agent is
authorised to redress any dispute or unfair labour practice in terms
of section 63(3a) of the Act.…….
What
is key in understanding what a designated agent can or cannot do is
to understand the meaning of the phrase 'redress any dispute'
used in section 63(3a) of the Act.
When
used as a verb, the word 'redress' according to the Oxford
English Dictionary means to remedy or set right an undesirable or
unfair situation. A designated agent authorised by the Registrar of
Labour redresses a dispute referred to him or her. He or she offers a
remedy or sets right an unfair situation.”
In
as much as the above case discusses the role of a Designated Agent,
it does not expressly deal with whether or not a Designated Agent has
any powers conferred upon him to deal with appeals.
From
a reading of the provision, there is nothing suggesting that a
Designated Agent has appellate jurisdiction.
To
have an appreciation of the powers bestowed upon a Designated Agent,
one has to examine what it is that the Designated Agent has to do in
redressing or attempting to redress a dispute.
In
Isoquant supra at p30, it was stated;
“A
designated agent may only exercise one power over a dispute. He or
she may redress the dispute or attempt to redress it. He or she
cannot do both. If he or she chooses to redress the dispute by
hearing and determining the issues in dispute, he or she cannot at
the same time attempt to redress the dispute.
It
is clear from the provisions of section 63(3a) as read with section
93(1) of the Act that a designated agent can only proceed in terms of
section 93 of the Act if he or she has not redressed the dispute.
He
or she would be attempting to settle the dispute through
conciliation.
There
can be no attempt to settle a dispute which has been redressed.
The
provisions of section 93 of the Act would apply when the power to be
exercised by the designated agent is an attempt to redress the
dispute through conciliation.”
From
the above, it is clear that a Designated Agent can do one of two
things that is redress a dispute by hearing and determining the
issues in dispute or attempt to redress the dispute through
conciliation.
He
cannot do both.
What
is coming up from the above-quoted excerpts from Isoquant supra is
that the Designated Agent will be redressing or attempting to redress
a dispute in a fresh hearing.
Given
the above, it is apparent that a Designated Agent 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.
In
casu the matter was referred to the Designated Agent by the Labour
Court in terms of section 14(c) of S/I 87/17 which provides as
follows:
“Appeals
to the NEC
14.
The Exemptions Committee of the National Employment Council shall
hear and conclude appeals referred to it within seven working days;
(a)…,.
(b)…,.
(c)
An appeal against the decision of the Exemptions Committee shall lie
with the Labour Court; if a matter is not determined or concluded
within 30 working days, the employee or employer concerned may refer
such matter to the Designated Agent who will dispose of it in
accordance with section 93 of the Labour Act [Chapter 28:01].”
The
'matter' being referred to in ss (c), in the context of the
present matter, is an appeal against the determination of the Appeals
Committee.
In
other words, the above provision purports to give the Designated
Agent power to 'redress or attempt to redress' the determination
of the Appeals Committee.
This
Court, in a line of authorities, has spoken on this, that, a
Designated Agent cannot preside over a matter where a determination
has been made. See Watyoka v Zupco (Northen Division) SC 87/05;
Mabeza v Sandvick Mining (2) Construction (Pvt) Ltd & Anor SC
91/19; and Living Waters Theological Seminary v Rev Chikwanha SC
59/21.
These
matters were analysed in the recent case of Nicholas Mukarati v
Pioneer Coaches (Private) Limited SC 34/22 where MATHONSI JA
concluded on the issue as follows:
“The
reasoning in Mabeza, supra rhymes with that in Sakarombe N.O. &
Anor v Montana Carswell Meats (Pvt) Ltd SC 44/20 where the court was
called upon to consider 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 National Code of Conduct.
It
concluded that under section 93(1) of the Act, a Labour Officer is
only mandated to preside over a fresh hearing where a complaint has
been lodged. The Labour Officer does not preside over any matter
where a determination has been made or one in which completed
disciplinary proceedings were conducted at the workplace.”
Although
the above authorities were dealing with the powers of a labour
officer the same principle applies with equal force to a Designated
Agent as in terms of section 63(3a) “the provisions of Part XII
shall apply, with the necessary changes, to the designated agent as
they apply to a labour officer.”
Section
8(6) of the National Code which was under discussion in these cases
is similarly worded to section 14(c) of SI 18/17.
Further
down on the same page MATHONSI JA observed the following;
“In
fact, in Living Waters Theological Seminary v Chikwanha, supra, the
court went further to state that the provisions of section 8(6) of
the National Employment Code are rendered inoperative by their being
ultra vires and inconsistent with the provisions of ss 93 and 101 of
the Labour Act.”
The
same can be said about section 14(c) of S/I 87/17. It is rendered
inoperative by being ultra vires and inconsistent with the provisions
of sections 63(3a) and 93 of the Labour Act.
In
casu, the Designated Agent presided over a matter over which he did
not have jurisdiction.
When
there is a determination on the merits of a dispute, a Designated
Agent has no jurisdiction under section 93 of the Act to redress or
attempt to redress such a dispute.
The
ramifications of what the Designated Agent did in this situation are
clear.
There
is no power conferred upon him to hear appeals in terms of the Act.
The
matter was improperly referred to him and consequently, the
proceedings before him and the resultant appeal before the court a
quo were a nullity.
There
was therefore no proper appeal before both the Labour Court and this
Court.
Regarding
costs, the appellant had prayed for costs of the appeal. In view of
the fact that the matter turned on the interpretation of section 14
of S/I 18/17 it would be in the interests of justice that there be no
order as to costs.
Given
the irregularities deliberated in this judgment, in the result, it is
ordered as follows:
1.
The matter be and is hereby struck off the roll with no order as to
costs.
2.
In terms of this Court's review powers in section 25(1) of the
Supreme Court Act [Chapter 7:13] the proceedings before the
Designated Agent and the Labour Court are hereby set aside.
GWAUNZA
DCJ: I agree
CHITAKUNYE
JA: I agree
Gundu
Dube and Pamucheche Legal Practitioners, appellant's legal
practitioners
