HIRING A CONSULTANT TO PRESIDE OVER A DISCIPLINARY HEARING

QUERY:

At a certain company, the director hired a consultant to preside over a disciplinary hearing. Is this proper? The company doesn’t have a company code, it uses SI 15 of 2006.

OPINION:

My problem with using a consultant to deal with disciplinary issues when using SI 15 of 2006 stems from the definition of the “disciplinary committee” and that of a “disciplinary authority” in terms of section 2 of the Statutory Instrument (SI).

Definitions provided for in the SI

A look at the definitions used in this statutory instrument will indicate that the person or persons who should preside over a disciplinary case should be from the same organisation. This must be someone who is part and parcel of the organisation.

Let’s have a look at the definition of a disciplinary committee as a starting point. Its states:

“disciplinary committee” means a committee set up at a workplace/establishment composed of employer and employees’ representatives, to preside over and decide over disciplinary cases and/or worker grievances. (Own Emphasis)

The definition is straight forward, a committee must be made up of employer and employee representatives. A consultant in my view is neither of the two. It is submitted that the words “to preside over and decide over disciplinary cases and/or worker grievances” do indicate that such committee is not there to preside over a single case. It should be or it would have been established to deal with all cases that happen at such an establishment. I don’t think a consultant or even a committee hired to deal with one case would be within the definition of the SI.

With regards to a disciplinary authority the definition is precise:

“disciplinary authority” means a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or at a workplace;

This authority must be someone or some committee “dealing with” matters in a works place. The words “dealing with” do not denote a single case. This would be someone or a committee specifically tasked with the business of dealing with such issues as a matter of course. Again, one consultant hired to deal with one case will not fall within the definition of authority as per the SI.

Intention of the legislature

It is my view that the intention of the legislature must have been to preclude anyone from outside an organisation from dealing with disciplinary cases. If the intention was to allow anyone outside an organisation the statutory instrument would have been more specific. This, in my view, confirmed by section 8 of the SI which section deals with internal appeals. The section says:

“Depending on the size and circumstances of an establishment or a workplace, an employer may appoint a person in his or her employment as an Appeals Officer or with the agreement of his or her employees or worker representatives, an Appeals Committee to preside over and decide on appeals.” (Own Emphasis)

An appeal should be handled by someone within an organisation. The legislature intended that the whole process be handled internally before being dealt with outside the organisation on appeal or review. It would be absurd to think that the SI allows an initial hearing to be handled by an outside person and whereas the appeal should be dealt with by an internal person.

Impartiality

 Besides the above, I believe that disciplinary cases require that someone who is not an interested party preside over them. Once someone hires a consultant, the inescapable feeling is that this consultant has been hired to dismiss an employee at all costs. Such a consultant will be paid by the employer. He or she becomes an interested party who is bound please his or her master.

At the end of the day, it all boils down to one legal principle, “Not only must Justice be done; it must also be seen to be done”

Conclusion

Once a consultant is hired to discipline or dismiss an employee, justice would have failed, and such proceedings will be a nullity.

1,333 Views

CITY OF GWERU v RICHARD MASINIRE (SC 45/13)

” This line of argument is defective and unsustainable at law, because the Urban Councils Act is subservient to the Labour Act. In terms of s 2A of the Labour Act, the Legislator has decreed it to prevail over any other enactment inconsistent with it. What this means is that whatever the provisions of the Urban Councils Act might be, they cannot exclude the application of the Labour Act to any employee. It is only the Constitution and the President by statutory instrument that can override the application of the Act over any employee.”

Introduction

Prior to 2005, the termination of employment of senior council officials could not be done in terms of the Labour Act. The Urban Councils Act excluded the jurisdiction of the labour act in such matters. This important change in our law is illustrated in City of Gweru v Richard Masinire. In my view, the most crucial illustration, in this case, is the fact that the labour Act now prevails in all instances were any act is inconsistent with it.

Facts

The facts which led to the current dispute can be summarised as follows:

  • The respondent was employed as the chamber secretary (Town Clerk) for the town council.
  • He was a senior official of the council in terms of the Urban Councils Act.
  • The council dismissed the employee in terms of the National Employment Code of Conduct, SI 15 of 2006.
  • The employee was aggrieved by the decision as he felt that the Urban Councils Act should have been used to facilitate his dismissal from employment.
  • The Labour Court upheld the argument and nullified the proceedings that had been carried out in terms of the National Code.
  • It was this Labour Court judgement that the council was aggrieved with thus founding an appeal at the Supreme Court in terms of the relevant rules.

Reasoning

The court noted that the Urban Councils Act did not provide for a procedure that had to be followed in order to dismiss an employee such as a Town Clerk. It only provided for a procedure where the Town Clerk in the person initiating disciplinary action. It thus was absurd, in the court’s opinion, for the town clerk to initiate his own disciplinary proceedings.  This undesirable situation thus left a void which could only be filled by the national code.

The Supreme Court further noted that the Labour Act, in terms of its section 3, clearly indicated that it applied to all employee’s excerpt those that are specifically excluded from it. Those excluded include employees whose conditions are governed by the constitution, members of the public service, and members of the disciplined forces. The importance of this section is it did not exclude the Town Clerk from the ambit of the Labour Act. This thus meant that the town clerk could be dismissed in terms of the act and within the confines of the National Employment Code.

With regards to section 3 of the Labour Act, the court thus remarked as follows:

“The section is couched in clear and unambiguous peremptory terms, such that the problem of interpretation does not arise at all. All that the lawgiver is saying is that the Labour Act applies to all employees except those it expressly excludes from its domain. In other words, the Labour Act applies to all employees except those whom the legislator has expressly excluded from its application.”

In addition, the court found that section 12B of the Labour Act provided that an employee could be dismissed in terms of the national code where an establishment does not have its own code. The court concluded that since the Urban Councils Act could not be used in the current case, for reasons alluded to earlier in this article, the parties could not be left without a remedy. The National Code thus became appropriate. The court thus noted:

“Considering that it is undesirable for parties to a dispute to be left without an appropriate mechanism of resolving their labour disputes, like professor Madhuku and CH Mucheche, I consider that s 12B (2) (b) should be given a broad purposeful interpretation to include circumstances where an existing internal code of conduct or dispute resolution mechanism cannot for justifiable reasons apply to a particular case. It, therefore, appears to me that the legislator intended the model code of conduct to be a fall-back labour dispute resolution mechanism where it is impossible or inappropriate for a good reason to apply any other dispute resolution mode. To that extent, it is a universal disciplinary code of conduct fitting all circumstances according to the exigencies of each case within the confines of the Labour Act.”

Judgment

The judgement of the labour court was dismissed, and the appeal allowed to succeed.

1,641 Views

ZIMBABWE ASSEMBLIES OF GOD AFRICA (ZAOGA) v KASIKAI MASHONGANYIKA SC 43/18

Introduction

The case dealt with the question of whether a party to a labour dispute can be represented by a labour consultant during arbitration proceedings. This case is important in so far as it shows that a representation in Labour Court Proceedings is more restricted as compared to Arbitration proceedings.

Not related to this current matter is it important to note that the legislature has enacted Statutory Instrument 8 of 2018 which now explicitly excludes parties from being represented by labour consultants in the Labour Court.

Facts

The facts which led to the current dispute can be summarised as follows:

  • A dispute between the employer and the employee was referred for arbitration after conciliation had failed.
  • At arbitration, the employee was represented by a labour consultant.
  • The employer argued that the employee could not make use of a labour consultant in such proceedings.
  • The arbitrator and subsequently the Labour Court upheld the argument that the labour consultant could represent a party in arbitration proceedings.
  • Aggrieved by the Labour Courts decision, the employer appealed to the Supreme Court.

Reasoning

The court’s finding was clear cut leaving no room for misunderstanding.

As a starting point, the court made an important observation that the Labour Act provisions which the appellant was relying on did not affect the position in the Arbitration Act.

The appellant argued that in terms of S92 of the Labour Act only a Legal Practitioner or an official of an employer’s or an employee organisation can represent a party to a labour dispute in the Labour Court. It attempted to reconcile this section with section 98(9) which provides that an arbitrator shall have the same powers as the Labour Court. The argument was meant to show that because an arbitrator has the same powers as the Labour Court it cannot be possible for an arbitrator to entertain parties represented by labour consultants. The arbitrator was thus bound to follow provisions of labour act and ignore what the arbitration act says, the argument continued.  The supreme court did not agree.

The accepted legal position that was supported by the Supreme Court is one in which a labour consultant can represent a party in arbitration proceedings. Article 24 of the Arbitration Act is clear on who can represent a party during such arbitration and in that regard, this can be any person of a party’s choice. The words “any person of their choice” were deemed to include labour consultants as opposed to excluding them. the court thus remarked that:

“The word ‘person’ in the provision cited above does not come with any qualification except that such a person should be of the relevant party’s choice. This circumstance makes the ambit of Article 24(4) wider than that prescribed in s 92 of the Act. The person chosen by a party can, therefore, be anyone, even a legal practitioner or an official or employee of a registered trade union or employer’s organization, as envisaged in s 92 of the Act.”

Judgment

The appeal was dismissed for lack of merit.

5,614 Views

TOBACCO PROCESSING ZIMBABWE v MUTASA AND OTHER (LC/H/242/2019)

“… then the test as laid down in Chibanda v Hewlett 1991 (2) ZLR 211
(HC) was met. In that case, the court held as follows;

“The learned author, Cooper, defines tacit relocation at page 319 opcit, as follows;  ‘A tacit relocation is an implied agreement to re-let and is concluded by the lessor permitting the lessee to remain in occupation after the termination of the lease and accepting rent from the lessee for the use and enjoyment of the property.””

Keywords

TPZ: Tobacco Processing Zimbabwe.

Introduction

TPZ v Mutasa and Others is a case which discusses important legal concepts that stem from the process of continuously renewing fixed-term contracts. It discusses the legal concept of tacit relocation of a fixed-term contract of employment. In my view, this is a landmark ruling. Its clearly explains circumstances were tacit relocation obtains. In an era where most companies have most of their employees on fixed-term contracts, one has to scrutinise this judgement and fully appreciate the consequences of tacit relocation.

Facts

Briefly, the facts of this matter were as follows:

  • The employees were on fixed-term contracts which expired, and they continued to work for the same employer.
  • They were given another set of a fixed-term contract

 with terms and conditions which were not different from the expired contracts.

  • They did not contest these contracts on the argument that their status had not changed.
  • The new contracts ran from 1 May 2013 to 30 April 2015.
  • The contracts expired again, and the employees continued to work until the employer availed new contracts in June 2015.
  • These new contracts provided for a duration of 1 year.
  • The employees refused to sign the contracts and the employer proceeded to terminate the same.

Reasons for the judgement

The legal question that arose was with regards to the status of the employees. Was there a tacit relocation of the old contracts?

The court noted that the accepted legal position is that if an employer allows an employee to work beyond a period of the fixed-term contract, the contract will be deemed to have been renewed on the same terms as the old contract. It rejected the argument by the employer that there was a negotiation of a new contract which had led to the employees working beyond their fixed-term positions.

The court argued that the current legal position is that tacit relocation will be broken if one of the parties indicates an intention not to be bound by the expired fixed-term contract. This will be the case if an employer communicates with the employees that the terms of the old contract are no longer going to apply once the contract expires.

In the current case, the intention not to be bound by the old fixed-term contract was not communicated to the employees. They simply continued to work beyond the period fixed by their old contracts.

Determination

The appeal by the was dismissed on the finding that there was tacit relocation of the contracts.

Own comment

The court’s decision confirms what this jurisdiction has established over the years that when a fixed-term contract is not renewed, and an employee continues to come to work the terms of the old contract will continue to apply. This is of course, after taking into consideration the intention of the parties. The fact that parties were still negotiating the terms of the new contract does not stop tacit relocation of the contractual terms from happening.

1,676 Views

NEC FOR THE COMMUNICATION AND ALLIED SERVICES INDUSTRY V NETONE CELLULAR (PRIVATE) LIMITED AND THE MINISTER OF LABOUR AND SOCIAL WELFARE (CCZ 17/19)

“In short, a person who alleges that his or her constitutional right has been infringed must rely on legislation enacted in order to protect that right. He may not rely on the underlying constitutional provisions directly when bringing an action to protect the right unless he or she intends to attack the constitutional validity or efficacy of the legislation itself.”

Keywords

NEC: National Employment Council.

CBA: Collective Bargaining Agreement.

Introduction

This matter concerned a referral of a constitutional matter from the Supreme Court to the Constitutional Court. The parties consented to such a referral. At the close of the case, the Constitutional Court made a finding that the referral was defective and proceeded to dismiss the matter. It will be shown in this article that the law pertaining to the collection of NEC levies was left intact as a result of this ruling. This case is also important in indicating the procedure that parties must follow when dealing with a matter that goes to the root of the constitution.

Facts

On 9 January 2012 Netone received communication to the effect that a CBA for the Communication and Allied Services Industry had been published. The CBA was binding on all players in the industry, Netone included. Netone had not played any part in the creation of the CBA and neither was it a party to it. It thus took the view that the whole process was a matter of compelling it to be part of an association without its consent. It also took the position that this was a violation of its constitutional rights not to be deprived of property without compensation as it will be made to pay NEC levies as a result of the CBA.

The matter was initially heard by the High Court which declared certain parts of the CBA unconstitutional in so far as they forced Netone to be part of the association against its will. Section 82(1)(a) which provides for the binding nature of Collective Bargaining Agreement to all players in an industry was deemed to be constitutional as it was not violative of any rights of Netone.

Unhappy with the High Court decision, the NEC lodged an appeal with the Supreme Court. With the consent of the parties, the court made a ruling to the effect that the constitutionality of section 82(1)(a) and various sections of the CBA be determined by the Constitutional Court.

Reasons for the judgement

In its reasoning, the court noted that the High Court did not declare section 82(1), (2) and (3) of the Labour Act as invalid for want of compliance of the constitution.[i] The High Court decision in that regard had not been challenged. The question relating to the constitutionality of the said sections were not an issue when the matter was before the Supreme Court. The Constitutional Court thus found it irregular for the parties to refer this section to the Constitutional Court for the court to decide on the constitutionality of the same.

The Constitutional Court noted the issue to do with the constitutionality of the CBA provisions was also not properly referred to it for adjudication. Having found that these sections emanated from the provisions in the labour act which provisions were not declared unconstitutional the court decided that a constitutional matter could not be founded from the provisions in the CBA alone.[ii]

Determination

The matter was struck off the roll.

Own comment

It is submitted that the High Court ruling that had declared certain parts of the CBA for the Communication and Allied Services Industry unconstitutional was defective right from inception. It had left the relevant sections of the Labour Act untouched. The labour act was the basis upon which the CBA had derived its power to order companies to contribute NEC levies as well as to have its terms and conditions binding on a company that wasn’t party to the NEC.

As a result of this ruling, companies will remain bound by the terms and conditions found in the CBAs of their industries whether they were part of the agreement or not. Companies will also continue to pay NEC Levies.


[i]               NEC for the communication and allied services industry v Netone cellular (private) limited and the minister of labour and social welfare (CCZ 17/19) at paragraph 21.

[ii]               Ibid at paragraph 31.

2,283 Views

Drum City (Private) Limited v Brenda Garudzo (SC 937/17)

“It is to be noted from the above, that only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss (5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee.”

Keywords

LC: Labour Court

Introduction

Drum City (Private) Limited v Brenda Garudzo is a matter that makes a case for the need to join employees in confirmation proceedings under section 93 of the Labour Act as amended in 2015. It outlines the procedural and substantive challenges that can be faced if an employee is not joined to such confirmation proceedings. The case also makes an important finding that a LC does not have jurisdiction to entertain confirmation proceedings when an employee is a losing party when a draft ruling is produced by a labour officer.

Facts

The following facts culminated in the matter under consideration:

  • An employee was dismissed for misconduct around April 2015.
  • Aggrieved by the decision to dismiss her the employee filed a complaint in terms of section 93 of the Act. The labour officer decided the matter in favour of the employee leading to confirmation proceedings in terms of the 2015 amendments.
  • The employee was not cited as a party to the proceedings at the LC.
  • The LC confirmed the ruling even though the labour officer who made the ruling was not present.
  • The employer then appealed to the Supreme Court and again the labour officer did not attend the proceedings. The employee was again not cited as a respondent.
  • The supreme court noted that without joining the employee whose interests are subject of the dispute, the LC had made a fatal error in the conduct of the proceedings.

Reasons for the judgement

The court noted that there is a need to join an employee who is subject to confirmation proceedings each time the proceedings are before the LC. This will allow such an employee to respond to all the allegations that would be raised.

Joining the employee will prevent a situation where an employee suffers prejudice because the labour officer who is not an interested party a matter decides not to be part of the proceedings as noted in this case. The employee affected by the ruling can apply to be joined in the proceedings. The LC can also out of its own accord join an employee as a party to the proceedings.

The court noted that when a draft ruling has the effect of making an employee the losing party such a ruling cannot be brought before the LC for confirmation. It interpreted the words “…or any other person” in section 93(5a) of the Act as not referring to the employee who brought a matter before the labour officer. The LC thus does not enjoy jurisdiction to entertain such confirmation proceedings.

Determination

The court decisively remarked:

“When all is said and done and in view of the foregoing, it is my finding that there was a fatal non-joinder of the employee, Ms Khan, to the proceedings a quo. Such proceedings can therefore not be allowed to stand.”

The matter was remitted back to the LC for consideration of the merits of the matter.

Own comment

This case is a must-read. It provides an important insight into some of the implications that came with the 2015 amendments to the Labour Act. It is amongst a plethora of cases that indicate that some of the provisions in the 2015 amendments were not properly thought through. The fact that LC has no jurisdiction to entertain confirmation proceedings were a ruling is not in favour of the employee is an important and far-reaching finding. This matter should not be ignored.

1,377 Views

PRESCRIPTION OF LABOUR DISPUTES: THE LAW

Prescription entails the extinction of a claim or a debt through the lapse of a predetermined time period.[i] This is what is referred to as extinctive prescription.[ii] Extinctive prescription is an area of law that has survived the journey from Roman law to contemporary Zimbabwean law. The net effect of prescription is that once a certain time period elapses, a claim ceases to exist or in other words, a claim is extinguished. Serious consequences thus flow from extinctive prescription.

Prescription entails the extinction of a claim or a debt through the lapse of a predetermined time period.[i] This is what is referred to as extinctive prescription.[ii] Extinctive prescription is an area of law that has survived the journey from Roman law to contemporary Zimbabwean law. The net effect of prescription is that once a certain time period elapses, a claim ceases to exist or in other words, a claim is extinguished.[iii] Serious consequences thus flow from extinctive prescription.

Labour Act (Chap 28.01)

The Labour Act position is that all labour disputes should be entertained in a judicial forum within a period of two years of their occurrence.[iv] This is the general rule. As an exception to this general rule, the Act provides that a dispute will not prescribe if it “is continuing at the time it is brought to the attention of a labour officer”.[v] These are the fundamental provisions in the Labour Act in as far as prescription of labour disputes in is concerned.

It is argued that the Labour Act provisions can be fully understood if the provisions in the prescription act are also juxtaposed. In this regard, the provisions in the Prescription Act are discussed below.

Prescription Act (Chap 8.11)

The Prescription Act enshrines the law of prescription and applies to all debts or claims provided that its provisions are consistent with Acts such as the Labour Act.[vi] The act provides for prescription periods for civil claims  (3 years), 30 years in the instance of debts secured by a mortgage bond and 15 years for debts owed to the state e.t.c.[vii]

The act has provisions which state when the prescription starts to run  [viii] when the prescription is deemed to be delayed,[ix] and when it is deemed to have been interrupted.[x] These provisions apply to labour disputes as well. The Labour act doesn’t provide any alternative provisions for the specific matters mentioned above. The prescription act is thus authority for the delay and interruption of prescription.

When prescription begins to run

In terms of the Labour Act, the two-year prescription period begins to run from the moment the act forming the subject of the unfair labour practise or dispute arises,[xi] or when the party referring the dispute became aware of the dispute or unfair labour practice.[xii] These provisions in the Labour Act are a mirror image of the provisions in the Prescription Act.[xiii] The most important aspect is that prescription runs the moment a dispute arises or is known by the aggrieved party. It follows therefore that if a dispute is present and the other party is not aware prescription does not run. Prescription will, in such circumstances start to run from the moment the dispute is known in terms of the identity of the debtor and the facts surrounding the dispute.[xiv]

Completion of prescription delayed

Circumstances may require that the completion of prescription be delayed even though it had been running for some time.[xv] In these circumstances, the completion of the period of prescription is paused subject to a continuation following cessation of the special circumstances.[xvi] These special circumstances prevent a litigant from enforcing his or her claim.

When a creditor is insane, is a minor or is under curatorship the completion of prescription is delayed.[xvii] Other circumstances include when a debtor is outside Zimbabwe[xviii] as well as when either the debtor or creditor is deceased and an executor of the estate is still to be appointed.[xix] One who alleges the presence of these special circumstances is also obliged to provide the proof thereof. Courts will not readily accept that prescription had been delayed without the essential proof.

Interruption of prescription

Interruption entails a situation where prescription stops completely and has to run afresh when circumstances demand.[xx] Situations which may demand interruption of prescription include acknowledgement of liability by a debtor,[xxi] service of a debtor of any process emanating from a court,[xxii] and when a creditor does not prosecute his or her claim to final judgement.[xxiii] The list of circumstances provided by the Prescription Act seems to be a closed list in terms of which any other circumstances other than those mentioned in the act will not be accepted for purposes of interrupting prescription.

Conclusion

It has been shown that the law relating to the prescription of labour disputes is found primarily in the Labour Act and the Prescription act. The Prescription Act contains an elaboration of the law on prescription. It has provisions that give content to the provisions in the Labour Act. Practitioners dealing with litigation in labour law have a duty to fully appreciate the provisions in both acts.

The provisions in the prescription act are crucial in as far as they point out circumstances that may lead to the delay in the completion of prescription as well as the interruption of the prescription. The far-reaching consequences of prescription demand that one is fully vested with its principles before entertaining a dispute.

References


[i]               Prescription Act (Chapter 8:11), Section 14(1).

[ii]               Hutchison D The Law of Contract in South Africa 3rd (2017 Oxford Univ Press) 15.4.4.

[iii]              Hutchison D The Law of Contract in South Africa 3rd (2017 Oxford Univ Press) 15.4.4.

[iv]              Labour Act, section 94 (1).

[v]               Labour Act, section 94 (2).

[vi]              Prescription Act (Chapter 8:11), Section 14(13).

[vii]             Prescription Act (Chapter 8:11), Section 14(15).

[viii]             Prescription Act (Chapter 8:11), Section 14(16).

[ix]              Prescription Act (Chapter 8:11), Section 14(17).

[x]               Prescription Act (Chapter 8:11), Section 14(18).

[xi]              Labour Act, section 94 (3)(a).

[xii]             Labour Act, section 94 (3)(b).

[xiii]             Prescription Act (Chapter 8:11), Section 14(16)(1).

[xiv]             Prescription Act (Chapter 8:11), Section 14(16)(3).

[xv]             Prescription Act (Chapter 8:11), Section 14(17).

[xvi]             Hutchison D The Law of Contract in South Africa 3rd (2017 Oxford Univ Press) 15.4.4.4.

[xvii]            Prescription Act (Chapter 8:11), Section 14(17)(a).

[xviii]           Prescription Act (Chapter 8:11), Section 14(17)(c).

[xix]             Prescription Act (Chapter 8:11), Section 14(17)(e).

[xx]             Hutchison D The Law of Contract in South Africa 3rd (2017 Oxford Univ Press) 15.4.3.

[xxi]             Prescription Act (Chapter 8:11), Section 14(19)(e).

[xxii]            Prescription Act (Chapter 8:11), Section 14(19)(e).

[xxiii]           Prescription Act (Chapter 8:11), Section 14(19)(e).

1,851 Views

PRESCRIPTION OF LABOUR DISPUTES: CASE LAW

The purpose of this article is to demonstrate the far-reaching consequences that are apparent went a matter has prescribed. A court will not have an opportunity to go into the merits of the matter. In most cases, the prescription is raised as a preliminary point (in limine) to the extent that an inquiry into the merits will not be warranted.

Introduction

This section deals with a review of cases that dealt with prescription of labour disputes. To fully understand this section one needs to go through the law on prescription as outlined in my previous article. In all the cases discussed herein, the claimants lost their matters simply because they delayed in lodging their claims and as a result, the claims had prescribed. The cases indicate the extent to which prescription can have far-reaching consequences to the detriment of those who lodge their claims out of time.

Chengetai Mapundu v ZIMRA[i]

In August 2007 the respondent stopped paying the claimants salary. 4 years later, the claimant brought the matter to the attention of a labour officer. The court remarked that the matter had prescribed. It noted that the claimant could not be saved by exceptions in section 94 of the Labour Act as the dispute could not be deemed to be continuing at the time it was reffered to the labour officer. It then decisively remarked as:

“I associate myself with the submissions made by Respondent’s Officer on this point. He relied on the case of City of Gweru v Munyari SC 15/05 where the Honourable Justice Ziyambi J.A. at p.5 stated that,

“The Labour Court got it wrong. It had no jurisdiction to entertain the matter which had long prescribed.”

In other words, once a matter prescribes, that is the end of the matter. It

cannot be revived in a judicial forum. On that basis, the appeal must fail.”

This case is important in as far as it shows that once a case had prescribed it cannot be revived in a judicial forum.

Jeffrey Dube N.O v Casmyn Mining t/a Turk Mine[ii]

Pursuant to special measures to avoid retrenchment in terms of section 12 of the Labour Act, the employer and employees agreed on a 25% reduction in the employee’s salaries in 2013. In 2014 the employees challenged the agreement at the High Court. They also brought the matter before the Labour Court. At the Labour Court (LC), the matter was dismissed because it was pending before the High Court (HC). Following the dismissal of the matter by the LC, the respondents proceeded to withdraw the HC matter. In September 2016 the same matter was referred to the NEC, de novo.

The LC accepted that the matter had indeed prescribed. The argument that the matter was continuing because the employees were still suffering from the effects of the reduction did not exonerate them. The court thus ruled:

“Equally so, an employee who decides not to act until the unfair labour practise has prescribed cannot possibly argue that because they are still being affected, that unfair labour practise should be deemed as “continuing”. Such an interpretation would result in rendering s94(1) redundant and superfluous”.

In essence, the fact that an individual is still suffering from the effects of the alleged unfair labour practise does not mean that the dispute should be deemed to be continuing. This is an important interpretation that the court came up with. The fact that the employees wasted time in forum shopping did not interrupt the prescription.

 Forbes Chitsenga v Total Mining Company and Others [iii]

The claimants in this instance alleged that they worked in acting positions from the year  2012  and were not paid their acting allowances. In 2017 they claimed alleged unfair retrenchment and included the issue of non-payment of acting allowances as part of the claim. At the NEC, the employees lost the retrenchment claim but won the claim involving the non-payment of their acting allowances.

At the LC, it was realised that the only flaw in the claim for acting allowance was that the claim was coming to the attention of the court after 2 years had elapsed. The dispute could not also be deemed to have been continuing owing to the fact that the employees had signed new contracts. In terms of these contracts, their acting capacities fell away as they were appointed into substantive positions. The matter was dismissed to the detriment of the claimants.

Conclusion

The purpose of this article is to demonstrate the far-reaching consequences that are apparent went a matter has prescribed. A court will not have an opportunity to go into the merits of the matter. In most cases, the prescription is raised as a preliminary point (in limine) to the extent that an inquiry into the merits will not be warranted. Chengetai Mapundu v ZIMRA clearly illustrates that that once a matter prescribes, that the end of it. Forbes Chitsenga v Total Mining Company and Others as well as Jeffrey Dube N.O v Casmyn Mining t/a Turk Mine can best be understood when one reads the Prescription Act especially provisions that relate to the delay and interruption of prescription. In these cases, the claimants time was wasted when they were forum shopping which exercise did not interrupt prescription. In all cases, the important lesson is that labour matters should be handled as a matter of agility.

References


[i]               LC/H/41/13

[ii]               LC/MT/60/18

[iii]              LC/B/15/19

2,420 Views

British American Tobbaco Zimbabwe v Jonathan Chibaya SC 30 /19

“In casu, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent’s signature. For that reason, the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.”

Introduction

The use of expert evidence may at times become inevitable in a disciplinary hearing. This case shows the circumstances in which expert evidence is acceptable and how courts come to their final judgments when presented with expert evidence. This case also illustrates the extent to which disciplinary cases can become complicated in instances where evidence to be relied on is in the hands of third parties who are not willing to cooperate.

Facts

Money was unlawfully withdrawn from a company account. One instruction to withdraw the money was used twice. This meant that one transaction was legit, and the other one was fraudulent. The company noted that the withdrawal slips used in the fraudulent transaction bore personal details of the respondent. This led to the suspension and subsequent dismissal of the respondent from the employ of the appellant. On appeal, the Works Council which heard the appeal tried to get more evidence from the bank to no avail. It then concluded the case based on a report that had been compiled by a handwriting expert. The NEC appeal forum, as well as the Labour Court, set aside the dismissal noting that the evidence was inadequate. The decision of the Labour Court thus founded the Supreme Court appeal.

Reasoning

The court, as a starting point, had to determine whether on a balance of probabilities a case had been proved against the respondent. The Labour Court had found that the evidence presented had pointed to the involvement of banking staff and not the respondent. The court made use of the authority found in Ebrahim v Pittman NO 1995 (1) ZLR 176 (H), 176 in which the court held that;

“In a civil case, where the court seeks to draw inferences from the facts, it may, by balancing probabilities, select a conclusion which seems to be the more natural or plausible (in the sense of credible) conclusion from among several conceivable ones, even though that conclusion is not the only reasonable one.”

It went to realize that the Labour Courts view was right in that the evidence pointed to the involvement of banking personnel. It was in this regard that the court went on to state that:

“The finding was that the probabilities pointed to the direct involvement of a bank official in the dishonest activities, particularly because the transaction took place at 8.00am, the exact time that the bank would have been opening its doors to the public. No evidence placed the respondent at or inside the bank at the relevant time. The bank already had the respondent’s personal details. There was no evidence that the respondent had ever accessed the withdrawal slip in question as it remained in the bank’s possession at all material times. This is particularly significant when note is taken of the fact that the withdrawal slip was in the bank’s possession for some thirteen days before the second withdrawal was made. The bank’s failure to cooperate unfortunately meant that a number of possibilities cannot be discounted in this matter.”

Own comment

The paragraph above points to the fact that this disciplinary hearing became complicated when the bank failed to avail the necessary evidence as requested by the Works Council. Various possibilities which could not point to the respondent became inevitable. It is therefore advisable that practitioners dealing with disciplinary issues must ensure that they avoid making use of evidence that results in many possibilities of what could have transpired. In Jonathan Chibaya, the burden to prove that the respondent was the culprit became onerous.

The court proceeded to analyse the probative value of the expert evidence presented to it. The most important legal principle that the court relied on was that a court is not compelled to blindly accept evidence simply because it has been presented by an expert. A court is thus duty-bound to make its own inferences. Having made these observations; the court proceeded to conclusively remark as follows:

“In casu, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent’s signature. For that reason, the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.”

Determination

The appeal was dismissed with costs.

Own Comment

The court’s ruling that the evidence relied on to terminate the employees’ contract was inadequate cannot be condemned. The expert had relied on photocopied documents. This meant that important information had been left out. There was a high chance that the respondent had been wrongfully convicted.

The finding that the court will not blindly follow expert evidence is a warning shot. Practitioners dealing with disciplinary issues must be careful when using expert evidence.  I have seen instances were forensic expert reports as well as financial audit reports have been used as evidence to dismiss employees in a hearing. I would advise those who contemplate using such reports to extensively go through this judgment before making knee jerk decisions to dismiss an employee.

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Agricultural and Rural Development Authority (ARDA) v Francis Baureni and 18 0thers SC 12/19

“In the final analysis, I take the view that the legislature could not possibly have intended that the complex processes enjoined in the orderly and equitable implementation of s 12C should be concluded and finalized within the limited time frame of only 14 days. To obligate both the Board and the employer concerned to make hurried and ill-considered choices and decisions would certainly not serve the interests of justice at the workplace as contemplated by s 2A of the Labour Act. As I have already indicated, a liberal and expansive interpretation of s 12C is in the best interests not only of the employees but also of the employer.”

Introduction

Act 5 of 2015 brought about a minimum retrenchment package payable to employees whose contracts are terminated on notice among other grounds.  This minimum retrenchment package was also applicable to a certain class of employees whose contracts were terminated on notice following the infamous Zuva Petroleum judgment. ARDA v Francis Baureni and 18 0thers is peculiar, in my view, because it relates to the interpretation of section 12C which section has been misunderstood since inception. This case also deals with the evidentiary burden in instances were an employer alleges that it has an incapacity to pay the minimum retrenchment package.

Background

The employees, in this case, had their contracts terminated on notice in December 2015. Whilst a claim to determining the fairness of their dismissal was pending an inquiry by a labour officer, the employer made an application for exemption from paying the minimum retrenchment package. The application was lodged with the retrenchment board. On hearing the dispute, the Retrenchment Board determined that the employer should pay the full retrenchment package. It was ordered that the payment will be in the form a lump sum as well as instalments spanning over a period of six months. The employer was not happy. An appeal was lodged against the decision of the Retrenchment Board. On hearing the appeal, the Labour Court dismissed it. The decision of the Labour Court then resulted in the current appeal dispute.

Findings and the law

In its first ground of appeal, the employer challenged the constitutionality of the retrospective application of the minimum retrenchment package that has come with Act 5 of 2015. This ground had to be correctly abandoned considering the Gratermans Case (2018) which had found nothing unconstitutional about the retrospective application of the Act.

The most important aspect of this judgement is, in my view, the interpretation of section 12C (3) and related provisions. This section holds that when an application for exemption is brought before the retrenchment board is must be “responded” to within 14 days, failure of which it will be deemed to have been granted in favour of the applicant. The applicant company argued that the word “respond” means that the board would have dealt with the matter and finalised it within the requisite period. The argument went on to state that, because the board had not determined the matter within 14 days, the matter must be decided in favour of the applicant company. The court did not agree. The Court made use of the ordinary grammatical meaning of the word “respond” and came to a finding that such a word did not mean that the board would have to conclude the matter within 14 days. It remarked as follows:

“The word “respond”, in its ordinary connotation, means “to say or do something as a reaction to something that has been said or done” (per the Cambridge English Dictionary). The word clearly does not denote anything akin to a final or definitive decision on anything raised by one person for a response to be given by another. Rather, it signifies an exchange of words or conduct between one or more individuals”

 It also argued that a period of 14 days it too little a time to completely deal with issues relating to incapacity to pay a retrenchment package. It determined that “respond” should be deemed to mean action taken by the board upon receipt of the application for exemption. In the court’s view, such action includes inviting parties to the hearing.

Further, the court made a finding that the applicant company had continued to take part in the proceedings called upon by the board even after the period of 14 days had elapsed. This meant that the applicant accepted that the proceedings were still valid.

In as far as evidence of incapacity to pay was concerned the court noted that the applicant company failed to place evidence before the court to show its inability to pay. The company had referred to unaudited financial statements, but such statements were never placed before the court. In addition, the bank statements that it had sought to rely on were deemed to be not enough proof of incapacity. The court had no other option, it decisively remarked;

“The onus clearly lay on the appellant to show that it should be exempted from paying the minimum retrenchment packages due to the respondents. As I have already stated, it failed to produce any meaningful evidence to substantiate its claim of insolvency or incapacity to pay the paltry sum of $55,000.00 that was ordered by the Board to be paid, partly as lump sums and partly by way of installments. It clearly failed to discharge the evidential onus that squarely fell upon it.”

Final determination

The appeal was dismissed with costs. The matter was thus decided in favour of the respondent.

Own comment

The Supreme Court is commended for taking the opportunity to bring clarity to Section 12 as amended by Act 5 of 2015. Most people, including me, thought that if an exemption matter before a retrenchment board is not resolved within 14 days it will have to be decided in favour of the applicant. This is clearly not the case as the word “respond” was given its dictionary meaning which means the boards reaction to the application. The court also brought clarity to the type of evidence that is required to satisfy a court of the incapacity of a court in paying the minimum retrenchment package. This is important for those contemplating such an application.

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