The Sunday Mail
Legal Matters with Arthur Marara
The question of the powers of the Labour Court on review has been a source of confusion among legal practitioners, and Human Capital practitioners. I will do a separate article on the Labour Court so that you gain more clarity on the subject.
Fortunately, there is more clarity as more Supreme Court judgments are coming and speaking on these varying points. In one of the previous articles I talked about how the jurisdiction of the High Court was settled in the leading case of Stanley Nhari v Robert Gabriel Mugabe and 2 Others SC161/20. If you missed the article, please visit The Sunday Mail website.
The reviews before the Labour Court are governed by s 89 of the Labour Court [Chapter 28.01], which provides that the Labour Court shall exercise the same powers of review in relation to labour matters as would be exercisable by the High Court. The powers of the High Court on review are based on the common law and on the provisions of the High Court Act [Chapter 7.06].
Section 28 of the High Court Act provides that on a review of any proceeding or decision in civil matters, the High Court shall have the power, subject to any other law, to set aside or correct the decision or proceedings reviewed. By virtue of s 89 of the Labour Court, the Labour Court similarly has power to set aside or correct the decision or proceedings reviewed.
One the key areas of concern has been whether the Labour Court can competently order the reinstatement of an employee when it did not consider the merits of the charges preferred against the employee in the disciplinary proceedings under review. I am going to pursue this. The narrower position is that the Labour Court has no such competence. This is premised on the position of law that upon the setting aside of a fatally irregular decision in disciplinary proceedings without a consideration of the merits of the matter, the status quo ante of the parties is restored. Reliance can be made on the cases of Standard Chartered Bank of Zimbabwe Ltd v Chikomwe and 211 Others SC 77/2000, and Air Zimbabwe (Private) Limited v Chiku Mnensa and Another SC 89/04, both decisions of the Supreme Court.
In Zimbabwe United Passenger Company v Beaular Mashinge SC21/2021, the Supreme Court observed that the legal position enunciated in the above authorities had been taken by the Appellant in the case only to mean that the setting aside of fatally irregular proceedings on review automatically restores the proceedings to the last valid proceeding.
In other words, it understood the legal position to be purely procedural, affecting only the procedural rights of the parties and not their substantive rights.
It is not uncommon for procedural irregularities to also affect the substantive rights of the parties to the dispute.
It is not uncommon for procedural irregularities to produce nullities that then restore in full the rights of the parties ante. (page 5)
The broader and more readily acceptable position taken by the Supreme Court in the Mashinge case is that the status quo ante of the parties that is restored upon the setting aside of the irregular employment disciplinary proceedings also relates substantively to the contractual status of the parties. Broadly speaking, upon the setting aside of fatally defective disciplinary proceedings, the employment contract is restored, without necessarily or by implication negating the remedies and procedures available to each of the parties to terminate the contract in terms of the agreed terms.
The restoration of the contract in such a situation has no effect on the merits of the charge or charges against the employee and the right of the employer to proceed against the employee in terms of the governing code of conduct.
The position taken in the Mashinge case was endorsed earlier by McNally JA in Air Zimbabwe Corporation v Mlambo 1997 (1) ZLR 220 (S) where, at page 223 H he accepted as correct the submission by counsel for the respondent to the effect that:
“ . . . as soon as there is a finding that the disciplinary findings were a nullity, it must follow that the employee is reinstated. After all, the basis for his dismissal has been set aside. So, he has not been properly dismissed.” (The emphasis is mine).
The conclusion in the Mashinge case is similar to the conclusion reached by the Supreme Court in the case of Minerals Marketing Corporation v Mazimavi 1995 (2) ZLR 353 (S) where the court upheld the decision of the tribunal a quo to reinstate the employee after finding that a gross irregularity had occurred during the disciplinary proceedings.
The clear position of the law is that upon the setting aside of employment disciplinary proceedings as a nullity, both the procedural and the substantive rights of the parties are restored to the position immediately before the nullified process.
In other words, where a dismissal is set aside as being a nullity, the employee is reinstated as such notwithstanding the further disciplinary proceedings that the court may order by way of remittal or otherwise.
The Supreme Court in the Mashinge case thus rejected as stating the correct position at law the argument by the appellant that the court a quo could only confine itself to confirming or nullifying the disciplinary proceedings of the appellant without granting substantive relief in the matter.
For more fairly recent authorities on the subject you can read the judgment of the Supreme Court in Zimbabwe United Passenger Company v Beaular Mashinge SC21/2021.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
