REPORTABLE
(85)
Judgment
No. SC. 90/05
Civil
Appeal No. 223/04
MUDZI
RURAL DISTRICT COUNCIL v
GODFREY
MAKWEMBERE
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, SANDURA JA & CHEDA JA
HARARE,
NOVEMBER 15, 2005
C
Warara, for the appellant
T
Pasipanodya, for the respondent
CHEDA
JA: After hearing submissions from both counsel in this matter, we
dismissed this appeal with costs and indicated that reasons
would
follow in due course. These are they.
The
appellant is a Rural District Council established in terms of the
Rural Districts Councils Act [Chapter 29:13], hereinafter
referred to as the Council. The respondent was employed by
the appellant as its chief executive officer.
Following
two meetings of the Council, it was decided that the respondent be
discharged from employment for maladministration of
the Councils
affairs. He was suspended pending dismissal.
On
20 November 2001 an application was made to a labour relations
officer to dismiss the respondent from employment. The
labour
relations officer determined that the respondent be reinstated
without loss of status, salary and other benefits that he had
enjoyed, with effect from the date of his suspension. The date of
the hearing was given as 10 July 2002 and the date of
determination
of the application as 24 September 2002.
On
15 August 2003 the same matter was placed before another labour
relations officer, who made an arbitration award on 26 September
2003. According to the record, this was because the Council
appealed against the first labour relations officers determination
on 30 January 2003.
There
is nothing in the papers to show whether the second labour relations
officer was a senior labour relations officer, but, even
assuming
that he was, he did not deal with the matter as an appeal case but
treated it as an arbitration matter.
Acting
as an arbitrator, the second labour relations officer set aside the
determination of the first labour relations officer,
thus confirming
the dismissal of the respondent.
The
Council then appealed to the Labour Court, but its appeal was
dismissed and the Labour Court ordered the reinstatement of the
respondent. The Council is now appealing against the Labour Courts
decision.
In
its grounds of appeal the Council submitted that the Labour Court
erred by overlooking the fact that the matter brought before
the
second labour relations officer was not an appeal but a review.
This contention is not supported by the papers.
The
Council also submitted that the Labour Court ordered reinstatement of
the respondent without dealing with the appeal filed on
30 January
2003.
What
the appellant has overlooked in this matter is that after the
determination of the first labour relations officer, an appeal
should
have been made to the senior labour relations officer within fourteen
days. This was not done.
The
treatment of the matter by the second labour relations officer as an
arbitration matter was also wrong. He purported to be
acting in
terms of s 93 of the Labour Relations Act [Chapter 28:01]
(the Act), but he did not follow the provisions of that
section. The matter had not been referred to him as an unfair
labour
practice or referred for arbitration.
In
any case, when the matter was placed before the second labour
relations officer, s 93 had been repealed and substituted
by a
new section. He could have tried conciliation as provided in the
amendment, section 30, of Act 17/2002 and not arbitration.
It
follows that the only valid proceedings concerning the matter were
those before the first labour relations officer. Proceedings
before
the second labour relations officer were a nullity.
No
condonation had been sought for the delay in noting the appeal from
the decision of the first labour relations officer. This
means that
there was no appeal on the matter. There was, therefore, no basis
upon which the Labour Court could consider the merits
of the matter,
as submitted by the appellant.
In
short, there was no condonation applied for before the noting of the
appeal and it was out of time. The second hearing, which
was
supposed to be an appeal and later called arbitration, was a nullity.
The second labour relations officer who purported to
treat it as
arbitration did not follow the provisions of s 93 that he
referred to.
The
Labour Courts decision was sufficiently clear and I do not see any
misdirection in it.
It
was for these reasons that we ordered the appeal dismissed with
costs.
CHIDYAUSIKU
CJ: I agree.
SANDURA
JA: I agree.
Warara
& Associates, appellant's legal practitioners
Manase
& Manase, respondent's legal practitioners