GOWORA JA: This
is an appeal against the decision of the Labour Court in which it dismissed an
appeal by the appellant against an award made by an arbitrator directing the
appellant to reinstate the respondent without loss of salary or benefits, and,
in the event that reinstatement was no longer possible, pay damages.
The background to this matter is as
follows. The respondent was employed as a security guard at the appellant's
premises in Marlborough. During the morning of 13 June 2009 it was discovered
that approximately thirty five (35) litres of diesel had been stolen from one
of the appellant's trucks parked on the premises. Following an
investigation conducted by the appellant, the respondent was charged with theft
in terms of the National Code of Conduct Regulations, S.I. 15/06 (“the National
Code of Conduct”). On 1 July 2009 the respondent was informed that he had been
found guilty and that consequently his contract had been terminated with effect
from 23 June 2009.
Aggrieved by the decision to dismiss
him, the respondent appealed to the appellant's executive director. The appeal
was unsuccessful and the respondent was advised accordingly on 10 July 2009.
The respondent was further advised that he could appeal to the appellant's
Board of Trustees within seven working days if he so wished. On 16 July 2009
the respondent prepared his appeal but it was only date stamped on 24 July 2009
at GAPWUZ where one of the Trustees is employed. Although it is not clear what
GAPWUZ stands for, it would appear to be the workers' union headquarters.
There was no response to the appeal. On 18 August 2009 the respondent then
wrote a letter to the Labour Officer complaining that his appeal had not been
heard and asking for a fair hearing. Following a certificate of no settlement,
the Labour Officer then referred the matter for arbitration on the issue
whether or not the dismissal of the respondent was fair.
The arbitrator found that the
failure by the board of trustees of the appellant to determine the appeal
within fourteen days infringed the respondent's right to be heard and was thus
a breach of the rules of natural justice. He also found that the respondent had
a legitimate expectation to have his appeal heard by the board of trustees and
the fact that the appeal had still not been determined was unprocedural
rendering the dismissal null and void. The arbitrator then gave an award for
the reinstatement of the respondent to his position with effect from 23 June
2009 without loss of salary or benefits and alternatively the payment of
specific sums of damages. Not satisfied with the award the appellant
noted an appeal with the Labour Court.
In its judgment the Labour Court found, firstly, that the arbitrator had made a
factual finding that the appeal by the respondent had not been heard by the
appellant's appellate body and, secondly, that the failure to determine the
appeal rendered the dismissal null and void. Consequently, the Labour Court concluded
that the finding by the arbitrator that the dismissal was unfair was an issue
of fact and not one of law. In the result, the court ruled that the
appeal was not properly taken and on that basis dismissed the appeal. Against
that finding the appellant has now appealed to this Court.
In its grounds of appeal, the appellant has attacked the decision of the Labour
Court on three bases. These are:
(a)
That the court a quo erred in concluding that the appeal before it did
not raise points of law;
(b)
That the court a quo erred in concluding that the dismissal of the
respondent had been effected in accordance with the law and thus could not be
termed unfair.
(c)
That the learned President of the Labour Court had misdirected herself in
disregarding the points raised by the appellant in its appeal before that
court.
At the hearing of this appeal, there was no appearance for the respondent. For
the appellant, Mr Uriri, submitted that the learned president in the
court a quo erred in concluding that the appeal by the appellant to the
Labour Court did not raise points of law. In particular, he argued that the
arbitrator had erred in failing to appreciate that the respondent had failed to
exhaust internal remedies before approaching the Ministry of Labour. He argued
further that the arbitrator had erred in “quantifying” damages due to the
respondent without hearing evidence on the issueof mitigation of damages by the
respondent. He further submitted that the learned arbitrator had erred in
setting out damages to be paid to the respondent without advancing any reasons
or justification for the award.
An appeal from the Labour Court to the Supreme Court, with leave of the Labour
Court or the Supreme Court, lies only on a point of law. What constitutes a
point of law was described in Muzuva v United Bottlers (Pvt) Ltd 1994
(1) ZLR 217 (S) in the following terms:
“The twin concepts, questions of law
and questions of fact were considered in depth by E M GROSSKOPF JA in Media
Workers Association of South Africa &Ors v Press Corporation of South
Africa Ltd (Perskor) 1992 (4) SA 791 (A). Approving the discussion of the topic
in Salmond on Jurisprudence 12 ed at 65-75, the learned JUDGE OF APPEAL pointed
out at 795D-G that the term “question of law” is used in three distinct though
related senses. First, it means “a question which the law itself has
authoritatively answered to the exclusion of the right of the court to answer
the question as it thinks fit in accordance with what is considered to be the
truth and justice of the matter”. Second, it means “a question as to what the
law is. Thus, an appeal on a question of law means an appeal in which the
question for argument and determination is what the true rule of the law is on
a certain matter”. And third, any question which is within the province of the
judge instead of the jury is called a question of law. This division of
judicial function arises in this country in a criminal trial presided over by a
judge and assessors.”
See also the remarks of GARWE JA in Sable
Chemical Industries Limited v David Peter Easterbrook SC 18/10.
The respondent's complaint against the appellant before the arbitrator was
effectively that his dismissal had been effected outside the provisions of the
Labour National Employment Code of Conduct, S.I. 15 of 2006, thus constituting
an unfair dismissal. What constitutes an unfair dismissal has been defined in s
12B of the Labour Act, [Cap. 28:01]. That section provides in relevant
part as follows:
“(1)
…
(2) An employee is unfairly dismissed-
(a) If, subject to subsection (3), the employer
fails to show that he dismissed the employee in terms of an employment code; or
(b)
In the absence of an employment code, the employer shall comply with the model
code made in terms of section 101(9)”.
It is common cause that in this case the respondent was charged with misconduct
in accordance with the National Code of Conduct. Section 8(2) of
the National Code of Conduct provides as follows:
“An internal appeal structures (sic)
shall be limited to not more than two appeal authorities.”
An aggrieved party is therefore
entitled to appeal to two bodies within the employment structure. The
respondent has alleged failure on the part of the appellant to afford him an
opportunity to have the second appeal determined. The arbitrator found that
this failure was unprocedural rendering the dismissal null and void.
In Sable Chemical Industries
Limited v David Peter Eastbrook (supra) this Court had to consider whether
or not failure to comply with the procedures provided for in codes of conduct
would vitiate the proceedings in question. This is what GARWE JA stated at p
8-9 of the cyclostyled judgment:
“It is true that proceedings before
disciplinary hearing committees established under a code of conduct are
intended to be flexible and less formal than proceedings in a court of law.
Various decisions of the High Court and Supreme Court in this jurisdiction have
stressed the need for flexibility in these circumstances. Those same decisions
have stressed the need for a fair hearing and in particular for the audi
alteram partem rule to be observed. It is not part of our law that
tribunals can, under the guise of flexibility, violate the principle of
fairness and do so with impunity.”
The appellant contends that the
arbitrator should not have entertained the dispute as the respondent had not
exhausted the internal domestic remedies available to him under the National
Code of Conduct. The respondent did file an appeal to the Board of Trustees of
the appellant. If one goes by the stamp from GAPWUZ as being the correct date
that the appeal was noted, it is evident that he did so on 24 July 2009. The
complaint to the Labour Officer was only lodged on 18 August 2009 a period of
over three weeks from the date that the appeal had been noted. The matter was
referred to compulsory arbitration on 30 September 2009 and even as at that
date the appeal had not been determined.
It was argued on behalf of the
appellant that the learned president of the Labour Court misdirected herself in
concluding that the appeal did not raise issues of law and that as a
consequence it was not properly before her. In my view, the appeal to the
Labour Court raised two issues; firstly whether the respondent had been
dismissed unfairly, and secondly, whether the award of damages by the arbitrator
had been properly quantified. The second issue certainly raised a question of
law. The learned President in the court a quo concluded that no issues
of law had been raised.
I entertain no doubt that the
learned President in the court a quo misdirected herself in concluding
that the entire appeal was not properly before her as it did not raise issues
of law. The issue before the court was whether or the arbitrator had followed
the law in the quantification of damages in lieu of reinstatement. This
ground is concerned with issues of law. The appeal as it related to the
quantification of damages was therefore properly before the court for
determination.
On the issue of damages, it is common cause that neither party adduced evidence
before the arbitrator. It is settled law that damages are meant to place the
employee in the position he would have occupied had the contract of employment
not been terminated, subject to the duty upon him to mitigate his loss.
Evidence on the quantum of damages due to an employee following the unlawful
termination of employment must be adduced to enable a proper quantification to
be made. See the remarks of GUBBAY CJ in Ruturi v Heritage Clothing
(Pvt) Ltd (1994) (2) ZLR 374 (S); to the following effect:
“In
so far as the award of damages is concerned, it is apparent that no evidence
was at any stage. The Tribunal did not have recourse, as it ought to have, to
s18 (1) of the Labour Relations (Settlement of Disputes) Regulations 1993 (SI
30 of 1993), which empowers it to require any witnesses to give evidence on
oath or affirmation. ………………..
For these reasons, the award must be
set aside, for to quantify damages, or indeed making any finding, on no
evidence, is to err in law. See R v Birmingham Compensation Appeal Tribunal, Ex
p Road Haulage Executive [1952] 2 All ER 100 (QB) at 101F; Wade Administrative
Law 6 ed at p320; de Smith Judicial Review of Administrative Action 4 ed at p
133.”[1]
The appellant has submitted, as it
did before the Labour Court, that the error by the learned arbitrator in
quantifying damages in the absence of evidence was to err at law in which event
the appeal against the award of damages was on a question of law. I
agree.
Consequently, in dismissing the appeal on the grounds that it had not been
properly placed before it, the Labour Court misdirected itself for the reasons
given above.
It is appropriate therefore that the
matter be remitted to the court a quo for the quantification of
damages.
Accordingly
the appeal succeeds and the order of the court a quo is set aside.
It is ordered as follows:
- The appeal is allowed with costs.
- The judgment of the labour court is hereby set aside.
- The matter is hereby remitted to the Labour Court for a
proper quantification of the damages due.
GARWE
JA:
I
agree
OMERJEE
AJA: I
agree
Kantor & Immerman, appellant's legal practitioners
[1]At
p 380B-F
