Medicines Control Authority of Zimbabwe v Nathan Toronga and Others

The respondents were employees of the Medicines Control Authority of Zimbabwe (MCAZ) who were also members of its Workers Committee. On 29 November 2010, they were suspended on charges of conduct inconsistent with their employment contracts and wilful disobedience to a lawful order. The charges arose from their conduct in writing to the Minister of Health with grievances after MCAZ management had ordered closure to the dispute. The very next day after suspension (30 November 2010), respondents referred the matter to a labour officer for conciliation. Between 15-17 December 2010, disciplinary hearings were conducted and respondents were dismissed. Respondents then wrote letters on 20-22 December 2010 indicating intention to appeal the disciplinary decision, but never pursued this internal appeal. Instead, they added additional grievances to the conciliation process. A Certificate of No Settlement was issued on 19 January 2011 and the matter was referred to arbitration. The arbitrator ruled the disciplinary committee was improperly constituted and ordered reinstatement. MCAZ appealed to the Labour Court, which dismissed the appeal. MCAZ then appealed to the Supreme Court.

• Whether the arbitrator should have made a finding on the issue of jurisdiction before determining the matter on the merits
• Whether the Labour Officer had jurisdiction to intervene in a dispute that was or was liable to be the subject of proceedings under an employment Code, contrary to section 101(5) of the Labour Act
• Whether the respondents had exhausted internal appeal remedies before referring the matter to conciliation
• Whether the issue of jurisdiction was a procedural matter appropriate for review rather than appeal

The appeal was allowed with costs. The judgment of the Labour Court was set aside and substituted with an order that: (1) the appeal is allowed; (2) the award of the arbitrator is set aside; and (3) there shall be no order as to costs.

The binding legal principles established are: (1) Jurisdiction is not a procedural matter but a question of law that must be determined before a tribunal can validly hear and determine a matter on the merits. (2) Where jurisdiction is challenged and included as a term of reference for arbitration, an arbitrator must determine the jurisdictional issue before proceeding to determine the dispute on the merits. (3) A court hearing an appeal from an arbitral award where jurisdiction was challenged but not determined must address the jurisdictional issue or remit it for determination, rather than proceeding to determine the appeal on the merits. (4) Section 101(5) of the Labour Act prohibits labour officers from intervening in disputes that are or are liable to be the subject of proceedings under an employment Code. (5) Where a tribunal lacks jurisdiction, all subsequent proceedings founded on that tribunal's determination are nullities and cannot form a valid basis for further appeals or proceedings.

The Court made the non-binding observation that respondents had followed a parallel process by referring the matter to conciliation the day after suspension while simultaneously requesting disciplinary records for internal appeal purposes, then abandoning the internal appeal route. The Court also cited the principle from McFoy v United Africa Co Ltd (1961) 3 All ER 1169 at 1172 that "you cannot put something on nothing and expect it to hold. It will collapse" - illustrating the consequences of proceedings founded on jurisdictional nullities. The Court noted that a positive finding on jurisdiction would have properly placed the dispute before the arbitrator, while a negative finding would have rendered the entire conciliation process a nullity with cascading effects on all subsequent proceedings.

This case is significant in Zimbabwean labour law (with potential persuasive value in South African labour law) as it establishes important principles regarding: (1) the distinction between jurisdictional issues and procedural matters, emphasizing that jurisdiction is a question of law that must be determined before any tribunal can validly proceed to hear a matter on the merits; (2) the requirement that employees exhaust internal appeal remedies before referring disputes to external conciliation where an employment code applies; (3) the proper interpretation of statutory limitations on labour officers' jurisdiction under section 101(5); and (4) the principle that proceedings founded on a tribunal lacking jurisdiction are nullities - "you cannot put something on nothing and expect it to hold." The case demonstrates the hierarchical approach required in labour dispute resolution and the primacy of jurisdictional determinations.