“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 the labour officer presided over a matter over which she did not have any jurisdiction.”
Categories: Appeals against completed hearings under a code of conduct, Powers of labour officers.
Introduction
Tafadzwa M Sakarombe and Wonder Simuka v Montana Carswell Meats Private Limited is a matter that has similarities with Misheck Mabeza v Sandvik Mining and Construction (Private) Limited[1] which was decided in 2019. Both matters scrutinise that role of labour officers and come to the same conclusion that a labour officer does not have the jurisdiction to resolve a dispute that is emanating from a completed disciplinary process. The current matter goes a step further to order that the Minister of Labour be appraised of the inconsistencies in the national code with a view to rectify the anomaly.
Facts
The second appellant was the respondent’s employee who was dismissed on allegations of theft and fraud. Internal appeals failed as the dismissal was upheld. He approached a labour officer with an allegation that he was unfairly dismissed. The labour officer conciliated the dispute. Conciliation failed leading to a certificate of no settlement. A ruling was made in favour of the employee. Aggrieved by this ruling an appeal was lodged by the respondent company at the LC. The LC on hearing the appeal confirmed the dismissal of the employee. It was this judgement that was brought to before the SC by the aggrieved employees.
The Courts Reasoning
The SC as a starting point was worried about the procedure adopted by the parties to this dispute, the labour officer included. It went on to assess authorities that have decided on the ambit of the jurisdiction of a labour officer under section 93 of the LA where a matter is referred to him in terms of the national code.
Two important cases were taken into consideration by the supreme court. These cases illustrated the importance of section 101(5) and (6) of the Labour Act as far as prescribing the parameters within which a labour officer can exercise his or her jurisdiction.
Mwenye v LONRHO Zimbabwe 1999(2)429 (S)
In this case, the supreme court took into consideration the remarks of the court including where it said:
“…Section 101 (5) of the Act is, in effect, an exception to s 93. It is a provision designed for the benefit of the parties. As long as the dispute or matter is:
(a) the subject of proceedings under a code; or
(b) liable to be the subject of proceedings under a code; no labour relations officer may intervene. His power to determine or otherwise dispose of the matter under s 101 (6) is placed in abeyance for a period of thirty days. This is to afford the parties, should one of them so wish, the opportunity to utilize the internal mechanisms specified in the code. Consequently, if either party were to refer the matter to a labour relations officer before the expiry of the third day period, the other could raise s 101 (5) as a defence.”
Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170
The remarks, in this case, were also taken into consideration. For purposes of this summary the significant remarks can be outlined as follows:
“Subsection (6) of s 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined. The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”
The importance of the abovementioned authorities is that they displayed that a labour officer cannot have jurisdiction to hear a matter that has been completed in terms of the code of conduct.
A labour Officer as a creature of statute
The SC also highlighted that a labour officer is a creature of statute. This means that the office of a labour officer is created by the LA. Since it has been created by the Act the labour officer cannot exercise more powers than those provided for in the same act.
Powers of labour officers
In addition, the SC also noted that under section 93 a labour officer is entitled to conciliate a dispute and to give a ruling when such conciliation has failed. The powers under this section do not include the power to hear appeals emanating from disciplinary issues. In the current case, the labour officer had entertained an appeal and had reversed the decision of an appeals official which meant that his actions were outside the confines of the enabling Act.
Section 101(5) and (6) of the LA
As in Misheck Mabeza v Sandvik Mining and Construction (Private) Limited the Supreme Court noted that Section 101(5) and (6) precluded a labour officer from entraining a dispute that is a subject of a code of conduct unless if the matter is not determined within 30 days in which case the employee or the employer may refer such a dispute to a labour officer. Such a labour officer will then have to deal with the matter in terms of section 93 of the Labour Act. The SC as a result decisively remarked that,
“In this context the implications of what the labour officer did are obvious. First, she assumed jurisdiction to entertain a matter which the law did not sanction. An appeal against proceedings under the code can only lie to a court or a tribunal which is empowered by law to act as an appeal court or tribunal. In casu, the labour officer assumed unto herself the jurisdiction that is imbued by law in an appellate court or tribunal. A labour officer is not an appeal structure for purposes of s 93 of the Act, nor can that power be read into the section no matter where the referral of a dispute or matter emanates from.
As a result of the above, the supreme court’s finding was that the proceedings undertaken by the labour officer were a nullity. It noted that the matter was supposed to have been brought to the labour court as an appeal.
Own Comment
The judgement is clear cut. As mentioned earlier on it confirms the court’s findings inMisheck Mabeza v Sandvik Mining and Construction (Private) Limited. It noted that the confusion between the Labour act and section 8(6) should be rectified. This, it is submitted, can be done by way of an amendment. Such an amendment can be effected on section 93 to broaden the powers of labour officers and designated agents. The amendment should provide that labour officers have the power to hear appeals emanating from disciplinary hearings.
[1] Misheck Mabeza v Sandvik Mining and Construction (Private) Limited (SC91/19)