Discipline re: Disciplinary Hearings iro Approach, Appeal and Review of Misconduct Proceedings

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal...,.

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo....,."

Discipline re: Disciplinary Hearings iro Approach ito Procedural Irregularities & Resolving Matters on Technicalities

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal....,.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal...,.

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo....,."

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by Court and Doctrine of Notice iro Approach

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct....,.

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal iro Issues Raised Mero Motu By the Court

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct....,.

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Enactment of Legislation re: Legislative Powers, Limitations to Legislative Powers, Judicial Activism and Rule of Law

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act.

Enactment of Legislation re: Subordinate Legislation and Government or Executive Notices

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act.

Rules of Construction or Interpretation re: Approach iro Conflicting Statutes & Principle of Lex Posterior Priori Derogant

Section 2A(3) of the Labour Act [Chapter 28:01] provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced.

Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

Rules of Construction or Interpretation re: Subsidiary Legislation iro Government Notice, Directives & Blue Pencil Rule

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act.

Rules of Construction or Interpretation re: Subsidiary or Delegated Legislation & Inconsistencies with Principal Act

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) 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.

(6) 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.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to 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.

In terms of section 101(6) of the Labour Act, 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 the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 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.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“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.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party 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, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced.

Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Rules of Construction or Interpretation re: Labour Statutes

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) 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.

(6) 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.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to 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.

In terms of section 101(6) of the Labour Act, 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 the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 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.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“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.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party 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, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced.

Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Arbitration re: Approach, Proceedings Before an Arbitrator and Registration and Execution of Arbitral Awards

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) 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.

(6) 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.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to 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.

In terms of section 101(6) of the Labour Act, 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 the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 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.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“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.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party 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, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced. Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Whether or not the matter was properly before the labour officer, the arbitrator and the court a quo

Although the parties made submissions on the merits, it is my view that a more fundamental issue on the procedure adopted by the parties, and the labour officer, in the resolution of the matter puts this matter to rest.

It is imperative to note, that, the respondent referred the matter to the labour officer after the appellant's Disciplinary Committee and the Appeals Committee had determined the matter on the merits through a disciplinary process under the Labour (National Employment Code of Conduct) Regulations, S.I. 15/2006 (the Model Code).

It is against this background that I take the view that a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings were properly before the labour officer and the arbitrator.

A labour officer is a creature of statute and can therefore only exercise jurisdiction granted to him in terms of the statute which created his office. As established under the analysis of the law, a labour officer does not have jurisdiction to exercise appellate jurisdiction over decisions of disciplinary authorities and appellate authorities in terms of Codes of Conduct.

In this case, the labour officer exercised appellate jurisdiction over the appellant's Appeals Committee's decision when he had no jurisdiction to do so. The proceedings before the labour officer are therefore a nullity. The referral to the arbitrator, and the arbitral proceedings, are also a nullity. The appeals to the Labour Court and this Court are also nullities as they are appeals against nullities.

The appellant's appeal to this Court must therefore be struck off the roll.

In terms of our review powers, as provided by section 25 of the Supreme Court Act [Chapter 7:13], the proceedings before the labour officer, the arbitrator, and the Labour Court, whose irregularities have been brought to our attention, must be set aside.

The finding that the appeal to the Labour Court was a nullity renders it unnecessary to determine issue number 2.

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs.

I therefore order as follows:

1. The matter is struck off the roll.

2. The proceedings before the labour officer, the arbitrator, and the Labour Court be and are hereby set aside.

3. Each party shall bear its own costs.

Arbitration re: Conciliation re: Proceedings Before a Labour Officer, Confirmation & Registration of Labour Officer Rulings

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) 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.

(6) 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.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to 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.

In terms of section 101(6) of the Labour Act, 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 the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 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.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“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.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party 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, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced. Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Whether or not the matter was properly before the labour officer, the arbitrator and the court a quo

Although the parties made submissions on the merits, it is my view that a more fundamental issue on the procedure adopted by the parties, and the labour officer, in the resolution of the matter puts this matter to rest.

It is imperative to note, that, the respondent referred the matter to the labour officer after the appellant's Disciplinary Committee and the Appeals Committee had determined the matter on the merits through a disciplinary process under the Labour (National Employment Code of Conduct) Regulations, S.I. 15/2006 (the Model Code).

It is against this background that I take the view that a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings were properly before the labour officer and the arbitrator.

A labour officer is a creature of statute and can therefore only exercise jurisdiction granted to him in terms of the statute which created his office. As established under the analysis of the law, a labour officer does not have jurisdiction to exercise appellate jurisdiction over decisions of disciplinary authorities and appellate authorities in terms of Codes of Conduct.

In this case, the labour officer exercised appellate jurisdiction over the appellant's Appeals Committee's decision when he had no jurisdiction to do so. The proceedings before the labour officer are therefore a nullity. The referral to the arbitrator, and the arbitral proceedings, are also a nullity. The appeals to the Labour Court and this Court are also nullities as they are appeals against nullities.

The appellant's appeal to this Court must therefore be struck off the roll.

In terms of our review powers, as provided by section 25 of the Supreme Court Act [Chapter 7:13], the proceedings before the labour officer, the arbitrator, and the Labour Court, whose irregularities have been brought to our attention, must be set aside.

The finding that the appeal to the Labour Court was a nullity renders it unnecessary to determine issue number 2.

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs.

I therefore order as follows:

1. The matter is struck off the roll.

2. The proceedings before the labour officer, the arbitrator, and the Labour Court be and are hereby set aside.

3. Each party shall bear its own costs.

Employment Contract re: Termination iro Proceedings under a Code of Conduct

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) 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.

(6) 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.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to 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.

In terms of section 101(6) of the Labour Act, 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 the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 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.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“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.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party 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, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced. Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Whether or not the matter was properly before the labour officer, the arbitrator and the court a quo

Although the parties made submissions on the merits, it is my view that a more fundamental issue on the procedure adopted by the parties, and the labour officer, in the resolution of the matter puts this matter to rest.

It is imperative to note, that, the respondent referred the matter to the labour officer after the appellant's Disciplinary Committee and the Appeals Committee had determined the matter on the merits through a disciplinary process under the Labour (National Employment Code of Conduct) Regulations, S.I. 15/2006 (the Model Code).

It is against this background that I take the view that a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings were properly before the labour officer and the arbitrator.

A labour officer is a creature of statute and can therefore only exercise jurisdiction granted to him in terms of the statute which created his office. As established under the analysis of the law, a labour officer does not have jurisdiction to exercise appellate jurisdiction over decisions of disciplinary authorities and appellate authorities in terms of Codes of Conduct.

In this case, the labour officer exercised appellate jurisdiction over the appellant's Appeals Committee's decision when he had no jurisdiction to do so. The proceedings before the labour officer are therefore a nullity. The referral to the arbitrator, and the arbitral proceedings, are also a nullity. The appeals to the Labour Court and this Court are also nullities as they are appeals against nullities.

The appellant's appeal to this Court must therefore be struck off the roll.

In terms of our review powers, as provided by section 25 of the Supreme Court Act [Chapter 7:13], the proceedings before the labour officer, the arbitrator, and the Labour Court, whose irregularities have been brought to our attention, must be set aside.

The finding that the appeal to the Labour Court was a nullity renders it unnecessary to determine issue number 2.

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs.

I therefore order as follows:

1. The matter is struck off the roll.

2. The proceedings before the labour officer, the arbitrator, and the Labour Court be and are hereby set aside.

3. Each party shall bear its own costs.

Appeal re: Findings of Fact or Exercise of Discretion Made by Lower Court iro Jurisdictional Considerations

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) 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.

(6) 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.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to 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.

In terms of section 101(6) of the Labour Act, 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 the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 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.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“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.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party 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, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced. Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Whether or not the matter was properly before the labour officer, the arbitrator and the court a quo

Although the parties made submissions on the merits, it is my view that a more fundamental issue on the procedure adopted by the parties, and the labour officer, in the resolution of the matter puts this matter to rest.

It is imperative to note, that, the respondent referred the matter to the labour officer after the appellant's Disciplinary Committee and the Appeals Committee had determined the matter on the merits through a disciplinary process under the Labour (National Employment Code of Conduct) Regulations, S.I. 15/2006 (the Model Code).

It is against this background that I take the view that a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings were properly before the labour officer and the arbitrator.

A labour officer is a creature of statute and can therefore only exercise jurisdiction granted to him in terms of the statute which created his office. As established under the analysis of the law, a labour officer does not have jurisdiction to exercise appellate jurisdiction over decisions of disciplinary authorities and appellate authorities in terms of Codes of Conduct.

In this case, the labour officer exercised appellate jurisdiction over the appellant's Appeals Committee's decision when he had no jurisdiction to do so. The proceedings before the labour officer are therefore a nullity. The referral to the arbitrator, and the arbitral proceedings, are also a nullity. The appeals to the Labour Court and this Court are also nullities as they are appeals against nullities.

The appellant's appeal to this Court must therefore be struck off the roll.

In terms of our review powers, as provided by section 25 of the Supreme Court Act [Chapter 7:13], the proceedings before the labour officer, the arbitrator, and the Labour Court, whose irregularities have been brought to our attention, must be set aside.

The finding that the appeal to the Labour Court was a nullity renders it unnecessary to determine issue number 2.

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs.

I therefore order as follows:

1. The matter is struck off the roll.

2. The proceedings before the labour officer, the arbitrator, and the Labour Court be and are hereby set aside.

3. Each party shall bear its own costs.

Appeal, Leave to Appeal re: Approach, Notice of Appeal and the Right of Appeal iro Labour Proceedings

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) 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.

(6) 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.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to 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.

In terms of section 101(6) of the Labour Act, 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 the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 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.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“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.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party 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, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced. Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Whether or not the matter was properly before the labour officer, the arbitrator and the court a quo

Although the parties made submissions on the merits, it is my view that a more fundamental issue on the procedure adopted by the parties, and the labour officer, in the resolution of the matter puts this matter to rest.

It is imperative to note, that, the respondent referred the matter to the labour officer after the appellant's Disciplinary Committee and the Appeals Committee had determined the matter on the merits through a disciplinary process under the Labour (National Employment Code of Conduct) Regulations, S.I. 15/2006 (the Model Code).

It is against this background that I take the view that a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings were properly before the labour officer and the arbitrator.

A labour officer is a creature of statute and can therefore only exercise jurisdiction granted to him in terms of the statute which created his office. As established under the analysis of the law, a labour officer does not have jurisdiction to exercise appellate jurisdiction over decisions of disciplinary authorities and appellate authorities in terms of Codes of Conduct.

In this case, the labour officer exercised appellate jurisdiction over the appellant's Appeals Committee's decision when he had no jurisdiction to do so. The proceedings before the labour officer are therefore a nullity. The referral to the arbitrator, and the arbitral proceedings, are also a nullity. The appeals to the Labour Court and this Court are also nullities as they are appeals against nullities.

The appellant's appeal to this Court must therefore be struck off the roll.

In terms of our review powers, as provided by section 25 of the Supreme Court Act [Chapter 7:13], the proceedings before the labour officer, the arbitrator, and the Labour Court, whose irregularities have been brought to our attention, must be set aside.

The finding that the appeal to the Labour Court was a nullity renders it unnecessary to determine issue number 2.

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs.

I therefore order as follows:

1. The matter is struck off the roll.

2. The proceedings before the labour officer, the arbitrator, and the Labour Court be and are hereby set aside.

3. Each party shall bear its own costs.

Pleadings re: Nullity of Proceedings, Void or Voidable Acts, Peremptory Provisions and the Flowing of Rights Therefrom

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) 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.

(6) 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.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to 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.

In terms of section 101(6) of the Labour Act, 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 the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 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.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“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.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party 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, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced. Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Whether or not the matter was properly before the labour officer, the arbitrator and the court a quo

Although the parties made submissions on the merits, it is my view that a more fundamental issue on the procedure adopted by the parties, and the labour officer, in the resolution of the matter puts this matter to rest.

It is imperative to note, that, the respondent referred the matter to the labour officer after the appellant's Disciplinary Committee and the Appeals Committee had determined the matter on the merits through a disciplinary process under the Labour (National Employment Code of Conduct) Regulations, S.I. 15/2006 (the Model Code).

It is against this background that I take the view that a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings were properly before the labour officer and the arbitrator.

A labour officer is a creature of statute and can therefore only exercise jurisdiction granted to him in terms of the statute which created his office. As established under the analysis of the law, a labour officer does not have jurisdiction to exercise appellate jurisdiction over decisions of disciplinary authorities and appellate authorities in terms of Codes of Conduct.

In this case, the labour officer exercised appellate jurisdiction over the appellant's Appeals Committee's decision when he had no jurisdiction to do so. The proceedings before the labour officer are therefore a nullity. The referral to the arbitrator, and the arbitral proceedings, are also a nullity. The appeals to the Labour Court and this Court are also nullities as they are appeals against nullities.

The appellant's appeal to this Court must therefore be struck off the roll.

In terms of our review powers, as provided by section 25 of the Supreme Court Act [Chapter 7:13], the proceedings before the labour officer, the arbitrator, and the Labour Court, whose irregularities have been brought to our attention, must be set aside.

The finding that the appeal to the Labour Court was a nullity renders it unnecessary to determine issue number 2.

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs.

I therefore order as follows:

1. The matter is struck off the roll.

2. The proceedings before the labour officer, the arbitrator, and the Labour Court be and are hereby set aside.

3. Each party shall bear its own costs.

Final Orders re: Procedural Irregularities iro Approach ito Discretion to Condone, Interfere, Dismiss, Remit or Strike

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) 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.

(6) 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.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to 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.

In terms of section 101(6) of the Labour Act, 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 the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 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.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“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.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party 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, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced. Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Whether or not the matter was properly before the labour officer, the arbitrator and the court a quo

Although the parties made submissions on the merits, it is my view that a more fundamental issue on the procedure adopted by the parties, and the labour officer, in the resolution of the matter puts this matter to rest.

It is imperative to note, that, the respondent referred the matter to the labour officer after the appellant's Disciplinary Committee and the Appeals Committee had determined the matter on the merits through a disciplinary process under the Labour (National Employment Code of Conduct) Regulations, S.I. 15/2006 (the Model Code).

It is against this background that I take the view that a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings were properly before the labour officer and the arbitrator.

A labour officer is a creature of statute and can therefore only exercise jurisdiction granted to him in terms of the statute which created his office. As established under the analysis of the law, a labour officer does not have jurisdiction to exercise appellate jurisdiction over decisions of disciplinary authorities and appellate authorities in terms of Codes of Conduct.

In this case, the labour officer exercised appellate jurisdiction over the appellant's Appeals Committee's decision when he had no jurisdiction to do so. The proceedings before the labour officer are therefore a nullity. The referral to the arbitrator, and the arbitral proceedings, are also a nullity. The appeals to the Labour Court and this Court are also nullities as they are appeals against nullities.

The appellant's appeal to this Court must therefore be struck off the roll.

In terms of our review powers, as provided by section 25 of the Supreme Court Act [Chapter 7:13], the proceedings before the labour officer, the arbitrator, and the Labour Court, whose irregularities have been brought to our attention, must be set aside.

The finding that the appeal to the Labour Court was a nullity renders it unnecessary to determine issue number 2.

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs.

I therefore order as follows:

1. The matter is struck off the roll.

2. The proceedings before the labour officer, the arbitrator, and the Labour Court be and are hereby set aside.

3. Each party shall bear its own costs.

Final Orders re: Procedural Irregularities iro Labour Proceedings

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) 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.

(6) 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.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to 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.

In terms of section 101(6) of the Labour Act, 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 the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 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.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“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.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party 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, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced. Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Whether or not the matter was properly before the labour officer, the arbitrator and the court a quo

Although the parties made submissions on the merits, it is my view that a more fundamental issue on the procedure adopted by the parties, and the labour officer, in the resolution of the matter puts this matter to rest.

It is imperative to note, that, the respondent referred the matter to the labour officer after the appellant's Disciplinary Committee and the Appeals Committee had determined the matter on the merits through a disciplinary process under the Labour (National Employment Code of Conduct) Regulations, S.I. 15/2006 (the Model Code).

It is against this background that I take the view that a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings were properly before the labour officer and the arbitrator.

A labour officer is a creature of statute and can therefore only exercise jurisdiction granted to him in terms of the statute which created his office. As established under the analysis of the law, a labour officer does not have jurisdiction to exercise appellate jurisdiction over decisions of disciplinary authorities and appellate authorities in terms of Codes of Conduct.

In this case, the labour officer exercised appellate jurisdiction over the appellant's Appeals Committee's decision when he had no jurisdiction to do so. The proceedings before the labour officer are therefore a nullity. The referral to the arbitrator, and the arbitral proceedings, are also a nullity. The appeals to the Labour Court and this Court are also nullities as they are appeals against nullities.

The appellant's appeal to this Court must therefore be struck off the roll.

In terms of our review powers, as provided by section 25 of the Supreme Court Act [Chapter 7:13], the proceedings before the labour officer, the arbitrator, and the Labour Court, whose irregularities have been brought to our attention, must be set aside.

The finding that the appeal to the Labour Court was a nullity renders it unnecessary to determine issue number 2.

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs.

I therefore order as follows:

1. The matter is struck off the roll.

2. The proceedings before the labour officer, the arbitrator, and the Labour Court be and are hereby set aside.

3. Each party shall bear its own costs.

Review re: Labour Proceedings

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) 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.

(6) 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.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to 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.

In terms of section 101(6) of the Labour Act, 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 the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 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.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“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.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party 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, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced. Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Whether or not the matter was properly before the labour officer, the arbitrator and the court a quo

Although the parties made submissions on the merits, it is my view that a more fundamental issue on the procedure adopted by the parties, and the labour officer, in the resolution of the matter puts this matter to rest.

It is imperative to note, that, the respondent referred the matter to the labour officer after the appellant's Disciplinary Committee and the Appeals Committee had determined the matter on the merits through a disciplinary process under the Labour (National Employment Code of Conduct) Regulations, S.I. 15/2006 (the Model Code).

It is against this background that I take the view that a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings were properly before the labour officer and the arbitrator.

A labour officer is a creature of statute and can therefore only exercise jurisdiction granted to him in terms of the statute which created his office. As established under the analysis of the law, a labour officer does not have jurisdiction to exercise appellate jurisdiction over decisions of disciplinary authorities and appellate authorities in terms of Codes of Conduct.

In this case, the labour officer exercised appellate jurisdiction over the appellant's Appeals Committee's decision when he had no jurisdiction to do so. The proceedings before the labour officer are therefore a nullity. The referral to the arbitrator, and the arbitral proceedings, are also a nullity. The appeals to the Labour Court and this Court are also nullities as they are appeals against nullities.

The appellant's appeal to this Court must therefore be struck off the roll.

In terms of our review powers, as provided by section 25 of the Supreme Court Act [Chapter 7:13], the proceedings before the labour officer, the arbitrator, and the Labour Court, whose irregularities have been brought to our attention, must be set aside.

The finding that the appeal to the Labour Court was a nullity renders it unnecessary to determine issue number 2.

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs.

I therefore order as follows:

1. The matter is struck off the roll.

2. The proceedings before the labour officer, the arbitrator, and the Labour Court be and are hereby set aside.

3. Each party shall bear its own costs.

Jurisdiction re: Labour Proceedings

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) 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.

(6) 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.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to 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.

In terms of section 101(6) of the Labour Act, 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 the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 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.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“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.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party 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, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced. Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Whether or not the matter was properly before the labour officer, the arbitrator and the court a quo

Although the parties made submissions on the merits, it is my view that a more fundamental issue on the procedure adopted by the parties, and the labour officer, in the resolution of the matter puts this matter to rest.

It is imperative to note, that, the respondent referred the matter to the labour officer after the appellant's Disciplinary Committee and the Appeals Committee had determined the matter on the merits through a disciplinary process under the Labour (National Employment Code of Conduct) Regulations, S.I. 15/2006 (the Model Code).

It is against this background that I take the view that a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings were properly before the labour officer and the arbitrator.

A labour officer is a creature of statute and can therefore only exercise jurisdiction granted to him in terms of the statute which created his office. As established under the analysis of the law, a labour officer does not have jurisdiction to exercise appellate jurisdiction over decisions of disciplinary authorities and appellate authorities in terms of Codes of Conduct.

In this case, the labour officer exercised appellate jurisdiction over the appellant's Appeals Committee's decision when he had no jurisdiction to do so. The proceedings before the labour officer are therefore a nullity. The referral to the arbitrator, and the arbitral proceedings, are also a nullity. The appeals to the Labour Court and this Court are also nullities as they are appeals against nullities.

The appellant's appeal to this Court must therefore be struck off the roll.

In terms of our review powers, as provided by section 25 of the Supreme Court Act [Chapter 7:13], the proceedings before the labour officer, the arbitrator, and the Labour Court, whose irregularities have been brought to our attention, must be set aside.

The finding that the appeal to the Labour Court was a nullity renders it unnecessary to determine issue number 2.

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs.

I therefore order as follows:

1. The matter is struck off the roll.

2. The proceedings before the labour officer, the arbitrator, and the Labour Court be and are hereby set aside.

3. Each party shall bear its own costs.

Costs re: Matter Clarifying a Point of Law, Proceedings Concluded on Judicial Misdirections & Public Interest Litigation

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs....,.

1....,.

2....,.

3. Each party shall bear its own costs.

Costs re: No Order as to Costs or No Costs Order iro Approach

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs....,.

1....,.

2....,.

3. Each party shall bear its own costs.

Cause of Action and Draft Orders re: Approach, Timing, Framing, Forum and Legal Basis for Invoking Jurisdiction of Court

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) 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.

(6) 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.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to 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.

In terms of section 101(6) of the Labour Act, 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 the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 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.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“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.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party 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, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced.

Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

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SC59-21 - LIVING WATERS THEOLOGICAL SEMINARY vs REVEREND NGONI CHIKWANHA

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