MWENYE v LONRHO ZIMBABWE LTD 1999 (2) ZLR 429 (S)

Flynote

Employment — disciplinary proceedings — code of conduct in existence — reference of matter to labour relations officer — reference in less than 30 days after notification of proceedings — when permissible

Headnote

The appellant, an employee of the respondent, was accused by another employee of sexual harassment. He was suspended from duty without pay pending investigation by an independent investigator. Twenty-eight days later, the appellant referred the matter to a labour relations officer. Two days after that, the respondent wrote to the labour relations officer, requesting that the officer determine the matter, as the matter had not been determined under the relevant code of conduct within 30 days of the date of notification to the employee. The labour relations officer subsequently determined the matter against the appellant. The appellant appealed to a senior labour relations officer and then to the Labour Relations Tribunal. He argued that the labour relations officer had no jurisdiction to deal with the matter, on the grounds that the letter of suspension did not amount to a notification to the appellant and that the reference to the labour relations officer was premature. The Tribunal dismissed the appeal. On appeal to the Supreme Court:

Held, that in terms of s 101(6) of the Labour Relations Act [Chapter 28:01], a matter may only be referred to a labour relations officer if:

• (a) the matter has not been determined in terms of the relevant code;

• (b) 30 days have elapsed; and

• (c) notification has been given to the employee that proceedings are to be commenced against him in respect of the alleged breach.

Held, further, that although the letter to the appellant could have been drafted more explicitly, the appellant's conduct showed that he accepted the letter as a notification of disciplinary proceedings.

Held, further, that although the parties had referred the matter to the labour relations officer before the 30 day period had elapsed, the section did not preclude an earlier reference to the labour relations officer where both parties agreed that the dispute was incapable of resolution under the code or where both deemed it more advantageous to have the dispute determined by a labour relations officer. The labour relations officer therefore had jurisdiction to determine the matter.