Can Labour officers’ hear an appeal made in terms of National Employment Code of Conduct (S I 15 of 2006)?

By Simbarashe Gobvu

Labour officers’ jurisdiction on appeal made in terms of section 8(6) of the SI 15 of 2006 Labour (National Employment Code of Conduct) regulations 2006, has been the subject of interest in labour dispute resolution system in Zimbabwe. Most employees have found themselves in a dilemma on the correct position when it comes to appeal against dismissal in terms of the National Employment Code of Conduct. Courts have given interpretations on the legality of SI 15 of 2006.

In the case of Mabeza v Sandvik Mining & Anor SC 91/19, the court ruled that once the matter is finalized and a determination on the merits had already been made by the disciplinary authority the matter can not be referred to a labour officer. In the case of Watyoka v Zupco Northern Division the Supreme Court ruled that once a determination had been made in disciplinary proceedings, a labour officer had no jurisdiction to hear the matter.

However in terms of section 8(6) of SI 15 of 2006 a dismissed employee can appeal to the labour officer. Section 8 (6) and (7) thereof provide as follows:

“(6) 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 seven working days of receipt of such decision.

(7) The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under s 93 of the Act.”

The provision of S I 15 of 2006 appear to be contrary to the provisions of the Labour Act. Following the amendment No 12 of 1992, employer controlled codes of conducts were introduced and decisions of senior hearing officers were now left to the labour tribunal now the Labour Court which was given exclusive power to hear appeals of employees dismissed in terms of codes of conduct.An appeal against proceedings under the code can only lie to a court or a tribunal which is empowered by law to act as an appeal court or tribunal.

Section 101(5) of the Act provides that, 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. It is also noted that section 93 of the Act does not give labour officers powers to act as appeals officers for those dismissed in terms of the model code. The power to deal with appeals is the preserve of the labour court as read by section 92D of the Act which provides that a person who is aggrieved by a determination made under an employment code, may within such time and in such manner as may be prescribed, appeal to the labour court.

In the case of Mwenye v LONRHO Zimbabwe 1999(2)429 (S). At 433C-434B, GUBBAY CJ remarked as follows:

“Section 93(1) vests in a labour relations officer a general jurisdiction to deal with any dispute, either on his own initiative or on reference to him by one of the parties. Section 101 of the Act (then as s117A) was introduced on January 1 1993, by the Labour Relations Amendment Act 12 of 1992. It then became possible for an employment code of conduct, binding in respect of a particular industry, undertaking or workplace, to be registered, provided it contained the matters specified in s 101(3) of the Act.”

The court further clarified that the intention of the legislature was not to relieve labour relations officers of the burden of determining disputes but rather to give parties to employment relationship greater autonomy on determination of their disputes without involvement of labour officers as previously done before Amendment Number 12 of 1992. The only provision in the Act which allows a labour officer to intervene is provided on section 101(6) of the Act. The section provides that:

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.

A labour officer does not have any jurisdiction under s 93 to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered code of conduct. Neither does section 93 give a labour officer the power to act as an appeal tribunal or to review the determinations of the disciplinary authority and the internal processes attendant thereto.

It must be noted that the provisions of s 8 (6) and (7) of the National Employment Code of Conduct must be read together with the Act under which the code was promulgated to avoid confusion that exist between the two. Where the Statutory Instrument conflicts with any provision of the Act, the provisions of the Act should prevail. Section 2A (3) provides that the Act shall prevail over any enactment which is inconsistent with it.

In the recent case of TafadzwaSakarombe N.O and another v Montana Carswell Meats (Private) Limited SC 44/20 the court ruled that a labour officer does not have any jurisdiction under s 93 to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered code of conduct. Further in its disposition on the matter the Supreme Court recommended that the Model Code should be rectified and that the relevant Minister responsible for the administration of the Act be appraised of the need to call upon the Legislature to align S.I 15 of 2006.

Opinions expressed herein are solely those of the author and must not be taken as legal advice. Simbarashe Gobvu is an experienced La­bour Practitioner and an Independent Arbitrator who write in his own capac­ity. He can be contact­ed at [email protected]/ Phone 0773215904 or 0713008767

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