The backbone of this case is the question of whether an employer can appeal against a decision of a disciplinary hearing. One viewpoint is that when an employer constitutes a disciplinary hearing, he appoints an agent to deal with the disciplinary issue on his or her behalf. This viewpoint suggests that the employer must abide by the outcome of the disciplinary hearing meaning that the employer cannot challenge the outcome of the proceedings by way of an appeal. This viewpoint is seemingly logical and plausible, however, in ZESA Holdings (Private) Limited v Obson Matunja SC 73–22 the Supreme Court argued that it is not consistent with the basic rules of statutory interpretation. The court in this case undertook an important investigation that one cannot afford to ignore regarding a fake Supreme Court judgement that purpoted to deal with this issues similar to the ones in dispute. The important findings of the court are discussed hereunder.
The facts
The appellant charged the respondent for contravening the national employment code of conduct. It appointed a hearing official that made a finding that the respondent was not guilty. The hearing concluded that the charges were baseless and unsubstantiated. Aggrieved, the employer appealed to the Labour Court. The Labour Court struck the appeal off its roll. It ruled that the employer did not have the right to appeal against the verdict of a disciplinary hearing. The Supreme Court did not agree.
The law
The apex court observed that there are two conflicting judgements in the Zimbabwe Law Reports. The judgements pertain to Pioneer Transport v Mafikeni. One of the judgements is shown to have been issued in 2017 and the other one was issued in 2018. After its investigation, the court ruled that the 2017 judgement is fake.[1] The judgement suggested that an employer cannot appeal against a decision of a hearing. This is the judgement that the respondent employee was relying on in arguing that an employer cannot appeal against a disciplinary hearing outcome.
The court looked at the appeal provisions in the Labour Act[2] and national code[3] and realised that these provisions granted “a person” aggrieved by the decision of a hearing official the right to appeal to the Labour Court. It looked at the basic rule of statutory interpretation relies on the words in a statute to constue the intention of the legislature and decided that the word “person” also included artificial persons such as a corporation created in terms of the law. The employer being a legal person, the Supreme Court argued that it had the right to appeal against the decision of the hearing. The court thus decisively observed:
“There is, therefore, no doubt whatsoever in light of the foregoing authorities, that on a proper interpretation of s 92 D of the Act, an employer is a person. An employer qualifies as a person who can be aggrieved by a determination made under an employment code. That is the only ordinary grammatical meaning of that section”.
The employer thus retains a right to appeal against a decision of a hearing official. The court also added that there is no statutory bar against an employer appealing a decision of a hearing.[4]
Conclusion
The appeal was allowed thus giving an aggrieved employer the right to appeal against the decision of a hearing.
In addition, the court ordered that the registrar of the Supreme Court must issue a corrigendum removing the judgment of “Pioneer Transport v Douglas Mafikeni SC 45/17 (2017 (2) ZLR 71) from the list of Supreme Court judgments and asserting that the authentic judgment of this Court is Pioneer Transport v Douglas Mafikeni SC 65/18.”[5]
Own Comment
We fully agree with the conclusion reached by the Supreme Court in this case. It has been mentioned elsewhere in this publication that the purpose of labour law is to balance the interests of the employer and the employee. It would not be in the interest of justice to provide one party to the employment relationship with rights that are not given to the other party.
The right to be heard is fundamental to the resolution of disputes in labour law. It would be unfortunate to take a position that such an important right is reserved for the employee alone. An employer in the form of a company is a legal person that can be aggrieved by decisions of a disciplinary hearing outcome.
[1] ZESA Holdings (Private) Limited v Obson Matunja SC 73 – 22 on page 2.
[2] Section 92D of the Labour Act reads: “Appeals to the Labour Court not provided for elsewhere in this Act: A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner, as may be prescribed, appeal to the Labour Court”.
[3] Section 8(6) of Statutory Instrument 15 of 2006: “A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within 7 working days from the day of receipt of such decision”.
[4] ZESA Holdings (Private) Limited v Obson Matunja SC 73 – 22 on page 13.
[5] ZESA Holdings (Private) Limited v Obson Matunja SC 73 – 22 on page 14.