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 ...
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 SC27-12.
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 Astra Industries Ltd v Chamburuka SC27-12.
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 Industries Ltd v Chamburuka SC27-12.
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 SI 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 of the Labour Act, 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 Labour 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.
Counsel for the appellant made the following submissions:
He submitted that sub-section (6) of section 8 of the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006 (the Model Code of Conduct) is inconsistent with sections 92D and 101(5) of the Labour Act [Chapter 28:01].
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 Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) should be struck down.
On the other hand, counsel for the respondent has argued an alternative position to that presented by counsel for the appellant.
He urged the court to find, that, there is in fact no conflict between the provisions of the Labour Act and the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (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 Labour Act.
THE ISSUES AND DISPUTES FOR DETERMINATION BY A LABOUR OFFICER FOLLOWING A REFERENCE UNDER SECTION 101 OF THE LABOUR ACT
Although the issues for determination in this appeal emanate from a reference of an unfair dismissal under section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct), the enabling legislative provision for such reference is section 101 of the Labour Act, 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 of the Labour Act has remained in the same format as it was, with minor amendments which are not pertinent for the resolution of this dispute....,.
Although this Court has clearly set out the procedures applicable when a matter is referred to a labour officer in terms of section 101 of the Labour Act, it is evident that the process is fraught with confusion.
In fairness to the parties involved in this debacle, the incidence of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) and the provisions of section 8(6) and (7) of the Model Code of Conduct might have, to a large extent, contributed to the confusion....,.
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....,.
It is necessary that the apparent confusion that exists between the Labour Act and section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code), as highlighted in this judgment, be rectified; that the relevant Minister responsible for the administration of the Labour Act be appraised of the need to call upon the Legislature to align S.I 15/2006 to its parent statute, the Labour Act.
