HARARE, OCTOBER 18 2013 & MARCH 10, 2015

Z.T. Chadambuka, for the appellant

Respondent in person

GOWORA JA: The respondent (“hereinafter referred to as Mudavanhu”) was employed by the appellant as the head of its clothing factory division.   As part of his contract of employment, the respondent undertook to source for external garment making contracts to supplement the workload in the factory, for which he would receive a commission.   On 11 July 2006, he was charged with acts of misconduct as follows: persistent poor time-keeping; habitual absenteeism without permission; failure to meet required standards of work produced, (sic); failing to meet set targets in the production in the factory (sic) and unilaterally increasing the number of employees in his division without authority. Following a disciplinary hearing the respondent was found guilty on all charges and was dismissed from employment with effect from 16 July 2006.

On 14 July 2008, alleging an unfair dismissal, he filed a grievance with a labour officer, and failing conciliation between the parties, the labour officer referred the matter to compulsory arbitration.  The arbitrator upheld the respondent’s claim of unfair dismissal and gave an award in his favour. Included in the arbitrator’s award were twelve former employees of the appellant.  The appellant unsuccessfully appealed to the Labour Court which upheld the award in respect of the Mudavanhu and the other twelve.   Aggrieved by the dismissal of that appeal, the appellant has noted this appeal.

Before delving into the merits of the appeal, it is appropriate to dispose of the dispute in relation to the twelve others herein.  It was contended on behalf of the appellant that the Labour Court and the arbitrator in turn, made a determination with wide implications in relation to the second to thirteenth respondents.  The contention was based on the undisputed fact that the only time the claims in relation to the twelve others were alluded to was in the arbitrator’s award.  The appellant argued that the arbitrator had placed an onus on the employer to show that the departure of the other twelve from employment was procedural.

A perusal of the record of proceedings before the arbitrator points to the fact that the only evidence of unfair dismissal placed before the learned arbitrator was in relation to Mudavanhu.  The only reference to the other twelve is to the effect that they were made to resign after they refused to be moved from the factory to work in the fields.  None of the so called twelve others appeared before the arbitrator.  However, the record contains affidavits, attested to by nine of those respondents, in which authorisation is granted to Mudavanhu to speak on their behalf in the dispute with the appellant.

The arbitrator accepted the claim by Mudavanhu that he was legally permitted to represent his fellow employees on a right provided for in s 4 of the Labour (Settlements of Disputes) Regulations S.I. 217 of 2003 (“the Regulations”).  The arbitrator was pleased to find that Mudavanhu was properly authorised and that, consequently, his former workmates were properly before the learned arbitrator.  

Clearly he erred.  Firstly, s 4 of the Regulations allows a party to a matter before a labour officer to be represented by a fellow employee, an official of a trade union, employer’s organisation or a legal practitioner.  The Regulations do not define who a labour officer is.  A definition is found in the Labour Act, [Chapter 28:01] (“the Act”), where the labour officer is defined as “a labour officer means a labour officer referred to in para (b) of subsection (1) of s 101.”