APPEAL PROCEDURE IN TERMS OF SECTION 8 OF LABOUR (NATIONAL

EMPLOYMENT CODE OF CONDUCT) REGULATIONS, 2006, STATUTORY

INSTRUMENT 15 of 2006 (SI 15/2006) by Takudzwa J. Mafongoya 1

INTRODUCTION

Statutory Instrument 15/2006 also known as the Model code came into operation in 2006 and
it was gazetted in terms of Section 101 (9) of the Labour Act which provides that: “The
Minister may after consultation with the representatives of trade unions and employers
organisations, by statutory instrument publish a model employment code of conduct.”

Generally the Model code is made use of in scenarios where the employer or the specific
industry does not have an operational or a registered code of conduct. This position was
clarified in the case of Chikomba Rural District Council v Pasipanodya SC 26/2012 wherein
the Court dealing with when the model or a registered code can be used in Disciplinary
Proceedings held that:

The Labour (National Employment Code of Conduct) Regulations, 2006 (“the Regulations”)
were made in terms of s 101(9) of the Act. Those regulations also provide in s 5 as follows:

“5. Termination of contract of employment

No employer shall terminate a contract of employment with an employee unless -

(a) the termination is done in terms of an employment code which is

registered in terms of section 101(1) of the Act; or

(b) in the absence of the registered code of conduct mentioned in (a),

the termination in terms of the National Employment Code of Conduct provided
for under these regulations; or

(c) ...

(d) ...” (underlining is for emphasis)

1LLBS (Hon) UZ, LLM (MSU), Cert (Software Eng) (Ansted) UZ, Partner at Matsikidze and
Mucheche Legal Practitioners. He is writing in his personal capacity and can be
contacted on tamafongoya@yahoo.com or +263773071349.

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 Section 101 of the Act provides that a registered employment code shall be binding in
respect of the industry, undertaking or workplace to which it relates.
It is the appellant’s contention before this Court, as it was in the court a quo, that the
appellant was entitled to use either the Regulations made under the Act or its code of
conduct or both as this was specifically agreed upon in the contract of employment
signed by both parties.
There can be no doubt, regard being had to the provisions in the Act and the
Regulations to which reference has been made, that the submission by the appellant
that it was entitled to use either the Act or the Regulations or both is not tenable. Both
the Act and the Regulations are clear that the National Employment Code of conduct
contained in those regulations can only be invoked where there is no registered code
of conduct. Since it is common cause that the appellant does have a registered code of
conduct, the termination of a contract of employment of any of its employees had to be
in terms of its code of conduct and not the National Employment Code of Conduct. The
appellant therefore erred in terminating the respondent’s employment in terms of the
National Employment Code of Conduct.

The essence of the above can be gleaned from Section 12B of the Labour Act 28:01 which
provides that:

1. Every employee has a right not to be unfairly dismissed

2. An employee is unfairly dismissed -
a) If Subject to subsection 3 the employer fails to show that he dismissed the
employee in terms of an employment code of conduct.
b) in the absence of an employment code, the employer shall comply with the model
code made in terms of section 101(9).

The purpose of this article is to interrogate the processes in terms of Statutory Instrument
15/06 in general and the appeals process in particular. Reference shall be made to Section 8 of
the Statutory Instrument which deals with appeal procedures particularly the scope and its
implementation.

In addition, there has been confusion on what qualifies to be an appeal and that which has to
be directed to the Labour Officer from the workplace in terms of Section 8(6) of the Labour
Act. Do all appeals from the Disciplinary Authority/ Committee including those from the

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Appeals Committee fall directly to the Labour Officer in terms of Section 8(6) of the Labour
Act 28.01? This shall form part of the discussion of this article.

DISCIPLINARY HEARING PROCEDURE- DISCIPLINARY AUTHORITY V

DISCIPLINARY COMMITTEE

In terms of Section 2 of the Statutory Instrument 15/06, it provides that:

Disciplinary committee means a committee set up at a workplace establishment

composed of employer and employee representatives, to preside over and decide over
disciplinary cause and or worker grievances.

Disciplinary authority means a person or authority or such disciplinary committee

dealing with such matters in an establishment or at a workplace.

In terms of the above definitions for the Disciplinary Authority and Committee respectively, it
appears that, in as much as the two bodies are dedicated for disciplinary proceedings, there is
legal room to utilise the same for grievance proceedings. This can be deduced from the
definition of a Disciplinary Committee wherein it provides that it can preside over disciplinary
cases and/or worker grievances2.

The legal question of whether an employer can chose between a committee and an authority
has been answered by the Supreme Court of Zimbabwe in the National Engineering Workers
Union of Zimbabwe v Dube SC 01/2016 where the court held that:

The distinction between these two disciplinary authorities is highlighted in

the Mandizvidza case (supra) where this Court stated as follows in relation to the Code:

“It seems to me that whereas the National Code has stipulated who should constitute a
disciplinary committee, the composition of a disciplinary authority has been left to the
discretion of the employer.

A disciplinary authority on the other hand can mean a person or a committee dealing
with disciplinary matters at the workplace and its composition is not dictated by the
Code of Conduct. ….Clearly the appellant is obviously mixing the two. The disciplinary
authority can be constituted by a single person and it can be extended to a disciplinary
committee”.

2 Section 2 of SI15/06

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 Applied to the circumstances of this case, it becomes evident that the appellant
consciously set out to constitute a disciplinary authority (as opposed to a disciplinary
committee), and properly exercised its discretion in choosing the size of and specific
people to sit on, such disciplinary authority. It is pertinent to note in this respect that
no limitation is imposed by the Code as to the number of persons who should constitute
a disciplinary authority. Nor is the designation of such persons stipulated. It is all left
to the employer’s discretion. In the proceedings in question and in compliance with s
6(1)(4)(b) of the Code, the respondent was allowed to bring, and be represented by, her
legal practitioner.

It is therefore my finding that the authority that conducted the disciplinary proceedings
against the respondent was a Disciplinary Authority as defined in the Code, and that it
was properly constituted.

Therefore in disciplinary proceedings, the employer can choose between the disciplinary
committee or authority to preside over disciplinary proceedings, unless there exists a standing
agreement and arrangement within the workplace as to how proceedings are conducted and
whether specifically it has to be a Disciplinary Authority or Committee. This can be consequent
to a Works council agreement and/or Works Council constitution within the workplace.

THE APPEAL PROCESS

In terms of SI 15/06 Disciplinary Hearings are governed by Section 6 and the genesis includes
the suspension period, investigations period, hearing and determination stage. It is worth noting
that the Supreme Court has settled that timelines stipulated for suspension, investigation and
hearing need be complied with in conducting the disciplinary procedure. Failure to effectively
conclude hearings within thirty days arms the aggrieved party to evoke Section 101(6) of the
Labour Act 28.01. This was well discussed by the Supreme Court in Watyoka v ZUPCO
SC87/2005.

This was further adopted by the Labour Court in the Nhandara and Ors V Zimbabwe
Manpower Development Fund LC/H/445/2018 wherein the Court held that;

“The ordinary grammatical meaning of the words employed by the Legislature in

Section 101 (6) is simply that if the matter is not determined within 30 days then either
of the parties can refer the matter to a Labour Officer in terms of Section 101 (6).”

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Upon conclusion of the disciplinary hearing and delivery of the determination, Section 8 of the
Statutory Instrument provides that;

1. Depending on the size and circumstances of an establishment or a workplace, an

employer may appoint a person in his or her employment as an Appeals Officer or with
the agreement of his or her employees or worker representatives, an Appeals
Committee to preside over and decide on appeals
2. Any internal appeal structures shall be limited to not more than two appeals
authorities.[Subsection amended by s.i. 232 of 2006.
3. A person or party who is aggrieved by a decision made in terms of section (2) may, in
writing note
an appeal within seven working days with the Appeals Officer or Appeals Committee.
4. The Appeals Officer or Appeals Committee, as the case may be, may call for a formal
hearing to hear the appeal or decide from the record submitted.[Subsection amended
by s.i. 232 of 2006.]
5. An Appeals Officer or Appeals Committee, as the case may be, shall have 14 working
days from the date of receipt of the appeal, to dispose of the appeal.[Subsection
substituted mended by s.i. 232 of 2006.]
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 or receipt of such decision.[Subsection
substituted mended by s.i. 232 of 2006.]
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 section 93 of the Act

From a reading of Section 8(1) and (2), the code provides a choice to an employer to put in
place an appeal structure to entertain any appeal against the determination given by the
disciplinary authority or committee.

It is worth noting that section 8(2) prescribes the maximum number of such appeal authorities
to only two appeal authorities. The wording is in the peremptory and not directory. The word
“shall” is used. Hence it is the writers considered view that any appeal proceedings beyond
the two structures would be a nullity by operation of law. Such would be a violation of a statute

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and the consequences were ably highlighted by the Church of the Province of Central Africa
v Kunonga & Anor 2008(1) ZLR 413 (S) at 418, the Court dealt with the effect of a notice of
appeal not complying with the statutory requirements as follows:

“In my view, a distinction has to be made between those matters where the notice of
appeal is invalid by reason of failure to comply with the provisions of the statutes,
such as section 43 of the High Court Act, and a situation where a notice of appeal is
invalid by reason of failure to comply with the rules of the Supreme Court. Where a
notice of appeal does not comply with the provisions of the Act of Parliament, the court
has no discretion in the matter and the defect is incurable. In a situation like that, it is
open to the Court, and indeed a judge of the Supreme Court, to order that the appeal is
a nullity and is incurably defective.”

In addition, even if the responsible parties consent to a third appeal structure, such an agreement
would be a nullity. It is settled that an agreement contrary to the law is a nullity. This was
noted in Manning v Manning 1986(2) ZLR 1 (SC) 3-43.

In terms of Section 8(3) of Statutory Instrument 15/2006, it provides for a right to appeal within
the armpit of Section 8 (1) and (2) as above noted. However it is important to note that the
section is couched to include any aggrieved “person” or “party”. It is the writer’s view that
such a provision does not limit an appeal to an employee alone. It includes the employer if
aggrieved as it would fall under the description of a party or person.

“A person” can be legally understood to involve both natural and legal persons. At law a
“person” ought to be understood widely unless restrictively expressed. In terms of the
Constitution of Zimbabwe person is defined in Section 332 as means “an individual or body of
persons, whether incorporated or unincorporated”4.

Therefore, an objection or preliminary point that an employer cannot appeal in terms of Section
8 of SI 15/2006 would lack legal basis. This is supported by the fact that it is presumed that in
its role, the Committee or Authority presides as an independent tribunal distinct from the whims

3 See also Chikomba Rural District Council v Pasipanodya supra, Matanhire v BP Shell
SC113/04. See also Mutukwa v National Dairy Cooperative 1996(1) ZLR 341 (s)
4 Constitution of Zimbabwe Amendment (No 20)

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and caprices of either the employer or employee. This moot legal issue is yet to be settled by
the Supreme Court.

In terms of Section 8(3), the appeal ought to be filed within seven working days. Consequently
the Appeals Authority or Committee can invite parties for a hearing or entertain the matter on
record. Furthermore, the Statutory Instrument 15/06 does not authorise the Appeals Committee
/ Authority to condone any delays in filing the appeal. Once the appeal is out of time, the party
is non suited and out of Court. Hence, the sentiments of the Supreme Court in Barclays Bank
of Zimbabwe Ltd v Ncube SC26/2009 remain germane5. The Court dealing with the same
matter noted that

“The real issue in this appeal is whether the appeals board erred when it declined to
hear the appeal. The Labour Court answered that question in the negative. In my
view, that decision was correct In declining to hear the appeal, the appeals board said
the following: “The Appeals Board considered the fact that the case had been appealed
to the NEC out of time. The excuse given by the bank was that the case had erroneously
been sent to another Grievance and Disciplinary Committee. However, the Appeals
Board did not feel that a mistake like that was a valid excuse for submitting a late
appeal. The bank has vast experience in dealing with disciplinary issues, and the
procedure is very clear in the Code of Conduct.” It was, therefore, common cause that
the appeal had not been noted timeously, although it is not clear from the record when
the appeal was noted. However, in a letter dated 3 July 2002, and addressed to the
Secretary of the Employment Council for the Banking Undertaking, Ncube stated that
the bank filed its appeal on 14 June 2002, about three weeks after the grievance and
disciplinary committee had made its decision. As the appeal was not noted timeously,
it was not properly before the appeals board, and the appeals board properly declined
to hear it. In addition, there is no provision in the Code which empowers the appeals
board to condone the late noting of an appeal to it. Consequently, the appeals board
correctly declined to condone the bank’s failure to note its appeal timeously.

The above is consistent with the trite position of the law that a creature of statute can only do
that which is specifically provided for. The principle was well captured in Hatfield
Town Management Board v Mynfred Poultry Farm [Pvt] Ltd 1962 RLR at 802 A-B.

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 “It has repeatedly been stated that the Magistrates Court is a creature of statute and
has no jurisdiction beyond that granted by statute. It has no inherent jurisdiction such
as is possessed by the superior courts and may claim no authority which cannot be
found within the four corners of its statute” 6

SPECIFIC APPEAL IN TERMS OF SECTION 8(6) OF STATUTORY INSTRUMENT

15/2006

Legal disputes have continuously arisen over the interpretation of Section 8(6) of SI 15/06.

The following questions arise:

i. Which appeals falls before the Labour Officer in terms of section 8(6) of the Labour
Act?
ii. What happens to other appeals not included under the purview of section 8(6)?

In terms of Section 8(6) of SI 15/06, it provides that “a person or party is aggrieved by a

decision or manner in which an appeal is handled by his or her Employer or Appeals Officer
or Appeals Committee as the case may refer the matter to the Labour Officer or Employment
Agent as the case may be within seven days or receipt of such decision.”

A literal reading of the Section which seems to be the approach that the Courts have taken is
that an appeal in terms of Section 8(6) can only be against a decision of the Appeal Authority
or Committee. Thus, section 8 (6) does not create a right to appeal against a decision of the
Disciplinary Committee or Authority.

This position was noted in Moses Muchena v Revco Private limited LC/H/547/2018 wherein
the Court was dealing with a preliminary point raised by respondent that an appeal ought to
have been filed with the Labour officer and not the Labour Court. The Court held that:

“A binding and final determination lies within the hands of this Court. Reference to a
Labour Officer for conciliation does not provide an effective remedy in my view. The
bottom line is that there was no appeal structure available in this case”

In addition, this position was also noted in Capital Bank v Farai Mabasha LC/H/835/04
interpreting section (8)6 the Court held that:

6 See also Mabaudi v Mhora HH60/2011

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 “The provisions of this section need no interpretation or interference as this court is
urged to do by Respondent. It is clear that section applies to the prosecution of an
appeal. In casu the respondent had receipt of a decision by the Disciplinary Authority
and he was not aggrieved by an appeals committee decision. I agree with the reasoning
in the case of Kingdom Bank Limited v Willard Murenje LC/JD/MT/107/12 that an
appeal other than from an Appeals committee made in terms of the National Code must
be made to the Labour Court and not with the Labour Officer in terms of Section 8 of
the National Code”

From the above, it appears that if an employer does not possess an appeals structure internally,
the challenge to a dismissal ought to be filed directly to the Labour Court and not to the Labour
Officer.

If the above interpretation was to be adopted, it is the writer’s view that all referrals to the
Labour Officer challenging unfair dismissal in terms of Section 93 of the Labour Act would be
irregular and wrong at law. Consequently, that would affect the resolution of matters which
can be referred within two years in terms of Section 94 of the Labour Act. The position would
be that an appeal ought to be directly filed in terms of Section 92D of the Labour Act, to the
Labour Court.

The Court in Mabasha (supra) appears to agree with the above position wherein it held that;

“I do not understand section 93 (1) to provide jurisdiction to Labour Officers placed

before them. It must be read to refer to matters which are appropriately before the
Labour Officer. In casu the appeals was to be made to the Labour Court”

It is the writer’s view that Section 93 empowers Labour Officers to address disputes or unfair
labour practices. Therefore, if an employer does not have an internal appeal structure, the
appeal ought to be made direct to the Labour Officer in terms of Section (8) 6, 8(7) and Section
93 of the Labour Act Chapter28:01 since the allegation of unfair dismissal remains a
dispute and finds a causa in Section 93 of the Labour Act.

A literal interpretation of Section 8(6) of SI 15/06 as done by the Labour Court above, with
respect, breeds an absurdity with the resultant effect of eroding the gains of Alternative Dispute
Resolution by the Labour Act and relevant Statutory Instruments. In addition, the purpose of
implementing the Model code and putting in place the appeal structures, them being domestic

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remedies and alternative dispute resolution through Labour Officers/Designated Agents is
defeated to the prejudice of the employees.

In interpretation, once such glaring absurdity arises, then a prompt departure to other rules of
interpretations beckon7.

There would exist no incentive to the employer to put in place an appeal structure if the
employer knows that such a failure to put same in place automatically leads to the Labour
Court. The Labour Court is a formal Court, which attracts technicalities, legal expenses inter
alia which invariably are beyond the reach of employees. Filing any appeal to the Labour Court
necessitates legal prowess, complexities and compatibility with rules of the Court. Ultimately
it becomes game of rules.

In addition, Section 8(6) contains the words “or” between decisions and manner. That is
disjunctive8 and not conjunctive, thus and can be read widely and purposively. The provision
could be read to include an appeal against a decision of the disciplinary committee and/or the
manner an appeal committee/authority determines a matter. Consequently both appeals and
decisions of Disciplinary Committees would fall before the Labour Officer and not Labour
Court.

The above, if adopted would maintain the Labour Court as a Superior court of record left to
test decisions of other subsidiary tribunals. This is consistent with the Principle of subsidiarity,
in particular, giving other remedies an opportunity to resolve disputes, before approaching
Superior Courts9.

In Boniface Magurure & 63 Others v Cargo Carriers International Hauliers (Pvt) Ltd
supra it is stated at p 9 of the cyclostyled judgment:

“The principle of subsidiarity is based on the concept of one-system-of-law. Whilst the

Constitution is the supreme law of the land it is not separate from the rest of the laws.
The principles of constitutional consistency and validity underscore the fact that the
Constitution sets the standard with which every other law authorised by it must

7 see Muluswela v Coca Cola Africa LC/H/246/16.

8On conjunctive and disjunctive, read Weighbridge Tech Africa (Pvt) Ltd. v Africa Steel
(Pvt) Ltd. & Another HH376/2016

9The writer for purposes of this article shall not delve into the legal issue of whether the
Labour Court is or is not a superior court.

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 conform. The Constitution lays out basic rights and it is up to legislation to give effect
to them. This is the nature of the symbiotic relationship between the Constitution and
legislation. The legal system is one, wholesome and indivisible. As was put
in Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC).

This was further supported by the Zimbabwean Constitutional Court in Moyo v Sgt Chacha
& Others CC19/17 wherein the Court held that;

The principle of subsidiarity seeks to prevent the Constitutional Court from having to
decide on an ad hoc basis whether or not to exercise its jurisdiction10. That method
would make the law uncertain and open the Constitutional Court to the criticism of
handpicking certain cases over others, as opposed to applying a general principle to
all cases. The purpose of subsidiarity was stated in the article by Karl Klare supra as
being the prevention of a claimant from precipitating a full-dress adjudication of a
constitutional issue when the Legislature has given effect to a constitutional right.
Subsidiarity is therefore seen as performing a “gate-keeping function”. It precludes
litigants whose rights are protected under a statute enacted to give effect to
constitutional rights from relying on such constitutional rights before the Constitutional
Court for redress, as opposed to first seeking redress under the statute. The matter may
end up at the Constitutional Court. It must do so through the correct process provided
for in the wholesome and hierarchical legal system.

The principle of subsidiarity is made reference to in this case, in particular relation to

approaching the Labour Court as a last resort and after all other internal and domestic
procedures have been complied with. This assists the Court to benefit from the decisions of
other Tribunals.

A purposive interpretation approach to Section 8(6) would cure anticipated absurdities that
arise if the decisions of the Labour Court based on a literal interpretation are to be adopted.

Devenish G in Interpretation of Statutes (Juta 1992) @ 33 – 39 commenting on the Purposive

Rule of Interpretation says:

“The purposive approach requires that interpretation should not depend exclusively on
the literal meaning of words according to the semantic and grammatical analysis

10It is the writer’s view that such a principle can apply to the Labour Court in appeals under
discussion.

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 … The interpreter must endeavour to infer the design or purpose which lies behind
the legislation. In order to do this, the interpreter should make use of an unqualified
contextual approach, which allows an unconditional examination of all internal and
external sources … words should only be given, ordinary grammatical meaning if such
meaning is compatible with their complete context.”

It is the writer’s view that a purposive interpretation would clarify the intention and purpose of
Section 8 as an internal process for domestic remedies and effectiveness of Labour Officers
and Employment Council Designated Agents. In addition, the Labour Court would benefit from
the reasoning of other primary tribunals and not receive matters direct to the Labour Court.

Assuming the Labour Court is seized with the appeal and requires clarifications, that would
turn the Labour Court into an extension of the employer’s Internal Appeal System necessitating
hearing evidence afresh and leading of witnesses yet is must generally function as an appellate
Court, deciding matters on the record. Although the Court has such jurisdiction to recall
witnesses, it is undesirable to use it as such. In fact, the Labour Court becomes Quasi-
Disciplinary Hearing. More reason for the purposive interpretation of Section 8(6) of SI 15/06.

The Labour Court in justifying appeals directly to the Court have relied on section 92D of the
Labour Act which proves that “a person who is aggrieved by the determination made under
employment code may within such time and in such manner as may be prescribed appeal to the
Labour Court”

It is the writer’s view that section 92D does not create a right to appeal. It provides for the
procedure to be utilised if the Code of Conduct expressly and specifically creates a right to
appeal directly to the Labour Court. This approach found favour with the Court in Cleapas
Dururu N.O and Geribran Services PVT LTD t/a Transerve v Mugware LC/H/86/19
wherein the Court held that where the code or CBA provides a right to appeal to the Labour
Court and the procedure therein stipulated can be implemented in the Labour Court.

In the case of Section 8(6), any absurdity can surely cured by Interpretation of the said section
and the Section seeks to create a right to appeal to the Labour Officer and not direct to the
Labour Court.

Taken literally, Section 92D can also be taken to permit an appeal against an appeal
determination directly to the Labour Court and not to the Labour officer. This is also because
Section 92D provides that –“a person who is aggrieved by a determination made under an

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employment code may...” Such an appeal decision is also determination in the literal sense.
Hence, more reason the purpose of the Section would assist in interpretation and bring certainty
in order to avert splitting of hairs for two procedures (determination of disciplinary
committee/authority and appeal decision).

Any literal interpretation as done by the Labour Court in the abovementioned decisions would
go to the root of domestic remedies and relevance of Codes and CBA‘s as registered in terms
of Sections 101 and 74 of the Labour Act 28:01 respectively.

If the purposive approach is adopted, ultimately what would then remain relevant is not the
Tribunal against which an appeal has to be made to, in this case the Labour Officer but the
compliance with timelines to the file an appeal. In that case a degree of legal certainty in the
prosecution of appeals would prevail.

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