Analysis: Supreme Court Judgement ZESA vs O. Matunda

INTRODUCTION

Section 92D of the Labour Act (Chapter 28:01) accords a person who is aggrieved by a determination made under an employment code, the right to appeal to the Labour Court. Notwithstanding this right, employers wishing to invoke the provisions of section 92D and appeal to the Labour Court, are often censured and previously some courts have observed that allowing an aggrieved employer the right to appeal creates a certain degree of institutional bias in favour of the employer in disciplinary proceedings. It has been held that affording an employer the right to appeal against its own judgement is clearly unfair and would equate to an employer ‘having their own cake and eat it.’

FACTUAL BACKGROUND

In the matter of Zesa Holdings (Pvt) Ltd v Obson Matunja SC 73/22, the Respondent, Obson Matunja, was employed by Zesa Holdings Pvt Ltd, the Appellant. During the course of the Respondent’s employment, the Appellant levelled allegations of gross misconduct against the Respondent which resulted in his suspension from work in order to facilitate investigations into the matter. The Respondent was charged with three counts of misconduct. A series of disciplinary hearings were held and subsequently the disciplinary authority rendered a determination in favour of the Respondent and he was found not guilty. Aggrieved by the determination by the disciplinary authority, the Appellant appealed to the Labour Court in terms of section 92D of the Labour Act(Chapter 28:01) read with Clause 8 (6) of the Labour (National Employment Code of Conduct) Regulations S.I. 15/2006.

The Respondent contested the appeal, raising a preliminary objection that an employer has no right of appeal to the Labour Court against the determination of a disciplinary authority or hearing officer. In advancing his argument, counsel for the Respondent relied on the authority of Pioneer Transport v Mafikeni 2017 (2) ZLR 71 (S). In that judgment, the Supreme Court sought to interpret provisions of the Collective Bargaining Agreement, Transport Operating Industry S.I 67 of 2012, dealing with appeals against the decision of an internal Disciplinary Committee. The Court observed, obiter dictum, that an appeal by an employer to its own Chief Executive Officer against a decision of its own disciplinary machinery was ridiculous and concluded that the relevant provision of the Statutory Instrument did not give the employer a right to appeal.

Counsel for the Appellant however, drew the attention of the Labour Court to a judgment in respect of the same matter which disposed of the dispute in a different manner, namely Pioneer Transport v Mafikeni SC 65/18. In that case, the Court allowed the appeal by the employer and set aside the judgment of the Labour Court setting aside the dismissal of the employee from employment on appeal to the Managing Director.

After hearing arguments from counsel for both parties, the Labour Court in the present matter disposed of the appeal on the basis of the Respondent’s preliminary objection and concluded that an employer has no right to appeal.

THE SUPREME COURT'S DECISION

Following the dismissal of the matter in the Labour Court, the Appellant appealed to the Supreme Court on the ground that the Appellant enjoys a right to appeal against the decision of a disciplinary authority in terms of section 92D of the Labour Act and Clause 8(6) of the National Employment Code of Conduct.

Counsel for both parties expressed their concern at the two conflicting judgments in respect of the same appeal in the Pioneer Transport case. The Supreme Court found that the 2017 judgment was not a judgment of the Court and that in fact, the judgment was never signed by the appeals panel that heard the appeal and therefore has no binding effect. The court held that the valid and binding judgment of the Supreme Court is Pioneer Transport v Mafikeni SC 65/18.

In determining the issue of whether the Appellant had a right of appeal to the Labour Court against the decision of a disciplinary authority, the Court highlighted that words used in a statute must be accorded their primary and grammatical meaning. Only when doing so would lead to a glaring absurdity or inconsistency with the rest of the statue, should it not be done. The disciplinary proceedings in this matter were conducted in terms of the National Employment Code of Conduct which by the same token as section 92D of the Labour Act, permits “a person or party” aggrieved by a decision to appeal.

The Supreme Court held that there is no doubt that on a proper interpretation of section 92D of the Labour Act, an employer is a person and further that an employer qualifies as a person who can be aggrieved by a determination made under an employment code. The clear language employed in section 92D is to the effect that both the employer and the employee involved in disciplinary proceedings before a disciplinary authority, have a right to appeal to the Labour Court if aggrieved. Nowhere in the relevant statues is it stated that the right to appeal is a preserve of an employee alone.

IMPORTANCE OF THIS CASE

The present case provides some guidance in finding a balance between the rights and interests of the employer and employee regards the right to appeal against the decision of a disciplinary authority and who can exercise such right. It confirms the ambit of section 92D of the Labour Act and allows an employer to intervene with the disciplinary outcome thus affording both parties involved the opportunity to be heard.

The full judgment in Zesa Holdings (Pvt) Ltd v Obson Matunja SC 73/22 is available on this link.