2019 Case Law Review

MISHECK MABEZA v SANDVIK MINING AND CONSTRUCTION (PRIVATE) LIMITED SC91/19

“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. This process could only be set aside through an appeal or a review. The process before the labour officer was none of the above.”

INTRODUCTION

The National Code[1] provides that if one is aggrieved by an internal appeal result one may refer such a matter to a Labour Officer. Once this dispute has been referred as such, section 93 of the Labour Act will apply.[2] At face value, the national code seems to suggest that labour officers have the jurisdiction to hear appeals from disciplinary hearings held in terms of the national code. This is not correct; the Supreme Court has spoken!

The fundamental principles in Misheck Mabeza v Sandvik Mining and Construction (Private) Limited have far-reaching consequences but until this change, these will continue to determine how appeals in terms of the national code will be handled.

FACTS

The brief facts of this matter are that the employee, Misheck Mabeza was accused of failing to adhere to an instruction given by his employer. He was charged and dismissed for this failure in terms of the national code of conduct. Internal appeals upheld the dismissal. He lodged a claim of unfair dismissal with a labour officer under the Ministry Of Labour. Conciliation failed as per the dispute resolution mechanism that was applicable, the matter was referred for compulsory arbitration whereupon the arbitrator concluded that the dismissal was unfair. An appeal was lodged at the labour court by the respondent company. The labour court concluded that the employee had committed the offence and set aside the arbitral award. Aggrieved by the LC ruling, the appellant employee mounted the SC challenge.

THE COURTS REASONING

Section 101(5) and (6) of the Labour Act

The court assessed section 101(5)[3] and (6)[4] of the Labour Act. It concluded that appealing against a hearing to a labour officer will not be proper in terms of the labour act. The labour officer, the court argued, should not entertain a completed hearing. In other words, labour officers do not have the jurisdiction to hear appeals or reviews of disciplinary hearings.

This argument by the court was summed up in its pronouncement that:

“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 s 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 in this case the labour officer presided over a matter over which he did not have any jurisdiction.”

In summary, labour officers do not have appeal or review jurisdiction over matters emanating from a disciplinary hearing held in terms of the National Code.

Failure to adhere to an instruction lawfully issued

On the merits, the court made an important finding that the employee had deliberately failed to execute an instruction from his employer. The propriety of the charge and resultant dismissal was in the result not questioned.

Own Comment

I fully understand this judgement from the fact that the National Code is a delegated legislation enacted by the Minister in terms of section 101(9)[5] of the Labour Act [Chapter 28:01]. In terms of the principles governing subordinate legislation, it is accepted that subordinate legislation must be read and interpreted together with its enabling Act and that the subordinate legislation must not be in conflict with the enabling legislation.[6] It follows that when the subordinate legislation conflicts with the enabling act the court will have no option than to follow the enabling Act.

We submit that the court correctly noted that such an inconsistency between the Labour and the National Code was bad to the extent that no purposive interpretation can cure it to allow a labour officer to exercise appellate jurisdiction over matter emanating from completed hearing proceedings.

[1] See section 8(6) of Labour (National Employment Code of Conduct) Regulations, 2006

[2] See section 8(7) of Labour (National Employment Code of Conduct) Regulations, 2006

[3] Section 101(5) of the Labour Act reads: “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”.

[4] Section 101(6) of the Labour Act reads: “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.”

[5] Section 101(9) of the Labour Act reads: The Minister may, after consultation with representatives of trade unions and employers organizations, by statutory instrument publish a model employment code of conduct.

[6] Botha CJ Statutory interpretation: an introduction for students (Juta) 2012.

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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.

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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.

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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.

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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:

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…...

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Medecins Sans Frontiers (MSF) Belgium v Vengai Nhopi & 11 Others SC 11/19

“The arbitrator and consequently the court a quo erred in finding that an employee can reasonably form a legitimate expectation for re-employment by the mere fact of being invited for an interview by a former employer. In addition, the contracts that the respondents in casu had with the appellant clearly stated each was for a…...

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Emmanuel Masvikeni v National Blood Service Zimbabwe SC 28/19

“In our view, the appellant, by deliberately absenting himself without leave from the hearing, waived his right to challenge the conduct of the disciplinary proceedings. He had the option, which he did not exercise, of seeking a postponement since he knew that he would not be available on the date of the hearing. In these…...

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IMATU & Others v Rustenburg Transitional Council (2000) 21 ILJ 377 (LC)

“The senior employee who becomes a union leader must, in consequence, tread carefully, especially in his handling of confidential information. It is not enough simply to keep the information secret; he must recuse himself from every discussion within the union to which such information might be relevant either directly or indirectly lest he conveys, merely…...

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Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 35 ILJ 209 (SCA)

Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others is a case decided in the Supreme Court of Appeal of South Africa. I think is relevant to the Zimbabwean Jurisdiction even though its binding effect in our jurisdiction is questionable. The case deals with sick notes that emanate from traditional healers […]

Introduction

Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others is a case decided in the Supreme Court of Appeal of South Africa. I think is relevant to the Zimbabwean Jurisdiction even though its binding effect in our jurisdiction is questionable. The case deals with sick notes that emanate from traditional healers.

Summary of Facts

This is an appeal against the decision of the Labour Appeal Court. The matter was between Mmoledi who as in the employ of Kievits Kroon Country Estate (Pty) Ltd. Between the month of April and May 2007, the employee, Mmoledi, requested to have her shift adjusted to accommodate her application for sick leave. She needed to attend a course as a traditional healer. The application for leave was granted. It is important to note that the course emanated from the visions that she reportedly saw which visions were interpreted as a calling for her to become a traditional healer.

On 1 June 2007 she approached her supervisor with a similar request. This time around she required a period of 5 weeks to attend the course. This request was made at a time when she had exhausted all her leave days. Her supervisor was willing to accommodate her request albeit for a shorter period of week. Mmoledi insisted that she required more time. To support her request for more time off she brought a note from her trainer which note indicated that she needed more than one week. The documents were left on her supervisor’s desk as the supervisor was not in the office on the day the papers were brought to the company.

The employee subsequently did not return to work within the period expected by her supervisor. The employer proceeded to institute disciplinary proceedings noting that the employee had breached work place rules. A disciplinary authority appointed in terms of the company rules found that the employee was guilty of misconduct and prescribed her dismissal from employment as the appropriate penalty. In dismissing her the authority concluded that her period of absence could not be construed as Sick Leave.

Aggrieved by the decision, the employee appealed to the Commission for Conciliation, Mediation, and Arbitration (CCMA). The decision to dismiss her was set aside on the basis that her absence from work was due to a situation which was beyond her control. The employer was aggrieved by the decision of CCMA and appealed to the Labour Appeal Court were the court concluded that the decision by CCMA was correct. The Supreme Court of Appeal was thus seized by an appeal by Kievits Kroon Country Estate (Pty) Ltd which emanated from the latter’s dissatisfaction with the conclusion reached by the Labour Appeal Court.

The issue in dispute

The major question was whether the commissioner of CCMA properly applied the principles applicable to an application for unpaid leave for issues unrelated to the contract of employment between the parties.

Further, the question was whether a traditional healer’s certificate could be construed as a medical certificate for purposes of applying for sick leave.

A discussion of applicable labour law principles

The Supreme Court of Appeal noted that the employee genuinely believed that she was ill. This was because of the cultural belief that she was being called by her ancestors to become a traditional healer. The court proceeded to note that such cultural beliefs existed in the South Africa Society and have been recognized by the courts before. It went further to note that such beliefs were constitutionally protected.

It was also highlighted that it was beyond any dispute that people sometimes seek assistance from traditional healers once faced by similar situations. The court recognized that the employee was seeing visions and she made use of traditional healing methods because of her cultural belief. This evidence went on unchallenged.

The court concluded that the commissioner was correct in noting that the employee’s failure to report for duty was reasonable and that beyond her control. In the eyes of the Supreme Court of Appeal, the decision by the CCMA commissioner was correct.

Conclusion

The Supreme Court of Appeal concluded that the Labour Appeal Court was correct to dismiss the appeal. It then proceeded to also dismiss the appeal with costs.

NB: This summary was submitted to the University of South Africa (UNISA) in partial fulfilment of the requirements for the Degree of Bachelor of Laws (LLB).

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