A Mukwanda & 19 Others v Dalny Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/636/2014
HARARE, 01 JULY 2014
JUDGMENT NO. LC/H/636/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/636/2014

HARARE, 01 JULY 2014	    		      				LC/H/220/12

AND 26 SEPTEMBER 2014.

In the matter between:-

A MUKWANDA & 19 OTHERS	Appellants

And

DALNY MINE							Respondent

Before The Honourables R.F.  Manyangadze: J

For Appellants		A. Muchadehama (Legal Practitioner)

For Respondent		R. Moyo (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against an arbitral award handed down by Honourable J. Ndomene on 24 January 2014.  The arbitral award upheld the dismissal of the appellants for misconduct, the misconduct being engagement in an unlawful collective job action.

A perusal of the arbitral award shows that the arbitrator found all the claimants that appeared before him guilty of misconduct.  He however, differentiated the penalties on the basis of degree of participations in the unlawful job action.  For those whose participation involved elements of wilful disobedience and physical assault on management, a penalty of dismissal was imposed.  For those who merely participated but did not go further and engage in acts of assault the penalty was a final written warning.

The company filed an appeal against that part of the arbitral award in which final written warnings were imposed.

This appeal is concerned only with those employees against whom dismissal was imposed.  The appeal was set down in terms of Rule 19 (3) of the Labour Court Rules, Statutory Instrument 59 of 2006, (the Rules), as no Heads of Argument were filed on behalf of the appellants.  According to Rule 19 (3) (b), appellants were barred.  The court proceeded to hear submissions from the respondent.  Under the circumstances, the court considered the respondent’s written and oral submissions vis avis the appellants’ grounds of appeal, as it is permitted by Rule 19 (3)(b) to deal with the matter on the merits where the defaulting party is barred.

The respondent referred the Court to the case of Dyno Nobel (Private) Limited vs Dyno Nobel Workers Committee LC/H/170/2012.  In that case, KACHAMBWA J explained the approach the court should take when applying Section 19 (3) (b) of the Rules, in the following terms:

“The Appellant in this case was barred from filing heads of argument in terms of Section 19 (3) (b) of the Labour Court Rules.  The court will proceed to deal with the matter on the merits.  The Respondent addressed the court.  The matter will be dealt with it as if it were unopposed.  ………….  The court will only deal with the issues as raised in the Grounds of Appeal raised in the Notice of Appeal”

I concur with this interpretation of the provisions of the Rules, and will proceed accordingly in the instant case.

The appellants’ grounds of appeal are stated as follows;

“1.	The Arbitrator failed in his approach to the matter.

1.2	The arbitrator failed in not realizing that the Respondent had not held the hearings against the Appellants in terms of the relevant code of conduct.

2. 	The Arbitrator also erred in holding that the Appellants were guilty of        misconduct.

2.1	No evidence was led against the Appellants to prove that they were guilty of misconduct.

2.3	The Arbitrator erred in considering the matter without any evidence being led before him.

3.	The Respondent was obliged to hold Disciplinary Proceedings against the Appellants in terms of Statutory Instrument 165/1992.

3.1	The respondent had not held the hearings against the said Appellants in terms of Statutory Instrument 165/1992.

3.2	The findings by Respondent that the Appellants were guilty had not been proven.

3.3 	It is therefore submitted that the Arbitrator erred and misdirected himself in relying on the unsubstantiated and unproven submissions by the Respondent in confirming the Respondents’ guilty.”

The appellants have presented what they styled “GROUNDS OF APPEAL AND REVIEW”.  Ideally, an appeal and an application for review should be separate. One deals with the merits and the other with procedural aspects.  It causes some confusion to mix the two in one action.  Be that as it may, a careful examination of appellants’ grounds of appeal discloses one fundamental ground of review.  It is that they were not given an opportunity to be heard.   Their main challenge to the arbitral award is that the arbitrator determined the matter without any evidence having been led before him.

A reading of the arbitral award shows that the arbitrator based his findings on written submissions.  It is however, significant to note that the arbitrator indicates that it was the appellants who opted to rely on written submissions.  So did the respondent.  Both parties relied on their written submissions.  That is what they opted for.  The arbitrator accordingly proceeded on the basis of the written submissions, as mandated by the parties.  In the circumstances, appellants cannot be heard to complain that no oral evidence was adduced.

The record of proceedings shows that the arbitral award was the culmination of a protracted legal process which commenced with a Ministerial show cause order.

On 22 January 2013, a show cause order was issued against the appellants by the Minister of Labour.

On 25 January 2013 a disposal order was issued by NDEWERE J, in terms of which the collective job action was declared unlawful.  The disposal order terminated the unlawful job action and authorised the respondent to take disciplinary action against all those involved.

The respondent took disciplinary action which led to the dismissal of the appellants.

In my view, the arbitrator carefully and properly appraised himself of the facts of the matter, when he determined that the appellants were lawfully dismissed.  The written submissions that were placed before him justify that determination.  On pages 14 to 16 of the arbitral award, the arbitrator summarised the submissions from the respondent, in which the participation of each appellant is described.  The detailed submissions appear from pages 56 to 79 of the record.  A reading of these pages shows a collective job action characterised by acrimony, threats and assaults.  Some of the appellants paid admission of guilt fines of $20,00 at the police for assault, which assault was perpetrated against members of respondent’s management.

Confronted with this information, the arbitrator did not misdirect himself when he held that the dismissal was lawful.  The only issue arising out of his arbitral award is the differentiation of penalty based on what he perceived as a minimal role played by some of the appellants, in respect of whom he substituted the dismissal with a final written warning.  However, the propriety or otherwise of that part of his decision is not the subject of this appeal.  The Court has been advised the employer has noted an appeal against that decision.

In the instant appeal, I find no basis on which to interfere with the arbitrator’s discretion in upholding the respondent’s dismissal of the appellants.  As already indicated, the grounds of appeal boil down to basically one issue, that there was no evidence before the arbitrator on which to confirm the dismissal.  The written submissions on record constitute the evidence which the arbitrator properly relied on.  The appellants having been barred, there was no rebuttal of respondent’s submissions at the hearing of the appeal.

In the result, it is ordered that

The appeal be and is hereby dismissed with costs.

The arbitral award handed down on 24 January confirming the dismissal of the appellants be and is hereby upheld.

MBIDZO, MUCHADEHAMA & MAKONI, Appellants’ legal practitioners

GILL, GODLONTON & GERRANS, Respondent’s legal practitioners