A T Samuriwo v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/65/2016
HARARE, 12 NOVEMBER 2015 &
19 FEBRUARY 2016
CASE NO LC/H/142/2014
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IN THE LABOUR COURT OF ZIMBABWE	           JUDGMENT NO LC/H/65/2016

HARARE, 12 NOVEMBER 2015 &			         CASE NO LC/H/142/2014

19 FEBRUARY 2016

In the matter between

A T SAMURIWO							    APPELLANT

And

CITY OF HARARE							   RESPONDENT

Before the Honourable D L Hove J

For the Appellant	 K Masiyenyama (Legal Officer)

For the Respondent     Mrs R P Chimhenga (Principal Legal Officer)

HOVE J:

This is an appeal against an arbitral award.

The facts which gave rise to the dispute between the parties are common cause and these are that:

The appellant was employed by Zimbabwe National Water Authority (ZINWA) as a senior clerical officer Grade 11.

She stopped reporting for duty in May 2008 and the employer Zinwa stopped paying her salary.

In 2009 there was a government directive that water management functions be re-transferred to local authorities with effect from 1 February 2009. At that time Zinwa employees were re-transferred to the respondent, City of Harare.

In June 2010 the appellant wrote a letter to the respondent’s Human Resources Manager, to the effect that she was applying to be re-engaged by the respondent.

On 17 June 2010 the respondent wrote to the appellant instructing her to resume duty on 21 June 2010 and she complied.

The respondent decided on 20 January 2011, to bring disciplinary charges against the appellant alleging that she had absented herself from duty without authority from 4 May 2008 until 21 June 2010.

The appellants’ initial challenge was that she ought not to have been charged under the Harare Municipal undertaking (employment code of conduct SI 171/2010 as she alleges that at the time she committed the offence, she was under Zinwa and the instrument that applied at Zinwa should have been the one used to discipline her.

Secondly the appellant argued that the employer had condoned her misdemeanour and further that the matter had prescribed.

The arbitrator found that the claim had not prescribed.

The arbitrator also found that the statutory instrument used by the respondent in disciplining the appellant was the proper one since the appellant was now employed by the respondent and not Zinwa.

The appellant was aggrieved by the arbitral award and appealed to this court.

Five grounds of appeal were raised and ground number one alleges that the arbitrator had grossly erred when he failed to note that the appellant had been re-engaged.

The second ground alleges that in terms of SI 171/2010, the dispute had long prescribed.

The third ground also challenges the use of SI 171/10 and argued that the arbitrator ought to have held that this was a gross procedural irregularity.

The forth ground of appeal challenges the arbitrator for not taking note of the fact that others had faced the same charges as her.

The last ground of appeal takes issue with the arbitrator’s failure to take into account various procedural irregularities.

Grounds of appeal Number 3 and 5

These grounds are raising procedural issues.

It is trite that procedural issues are challenged by noting an application for review. When one notes an appeal, they are challenging the substantive correctness of a decision. But when one raises procedural matters, they do so by way of review. These two grounds are therefore not properly before the court and must be struck off.

In any case, it is not all procedural irregularities that have the effect of vitiating the proceedings. One has to show that they were prejudiced by such irregularities before proceedings can be nullified.

Tichawana Nyahuma v Barclays Bank (Pvt) Ltd SC 67-05; and Watyoka v Zupco SC 87-05.

There has not been any allegation made and no proof shown that the appellant suffered any prejudice. The grounds are therefore meritless.

Ground of Appeal Number 2

The finding by the arbitrator that the proceedings had been within the prescriptive period is factual and unless shown to be grossly unreasonable, it is not appealable to this court.

Ground of Appeal Number 4

The appellant argues that the arbitrator ought to have taken into account the parity principle and treated the appellant in the same manner as others (who had been exonerated) had been treated.

The Supreme Court has had occasion to deal with this principle and they made this observation:

“Arguments may be addressed as to how unfair it is that the four respondents out of forty who participated in the unlawful job action should have been selected for punishment but such arguments cannot absolve them of their breach of their statutory duty not to participate in such action

…..

If they are guilty it is not in law relevant that others may have also been guilty.”

In casu, the facts are not the same but the principle that one can be punished for an act of misconduct even when others who committed the same act of misconduct are exonerated is applicable.

See the case of Lancashire Steel (Pvt) Ltd v Elijah Zvidzai & Ors SC 29-95.

The Chief Justice, CHIDYAUSIKU CJ, has stated that one ought to escape centure on the basis that they are innocent of the allegations levelled against them and not on the basis of some technicalities and I would add that not on the basis that someone else has escaped centure after committing similar or the same acts of misconduct.

See in this regard the case of Air Zimbabwe v Chika Mensa & Anor SC 89-04.

This ground has no merit.

Ground of Appeal Number 1

The appellant admits and argues that she repudiated her contract of employment but that upon her return, she applied for and was re-engaged. Her application was accepted.

At this point, the parties started or entered into a new contract of employment. It cannot be terminated on the basis of an act of misconduct committed during the life of an old contract. If it had been the respondent’s decision to re-instate and charge her for absenteeism, it would just have re-instated and preferred allegations but in casu, they advised her to re-apply. The appellant re-applied and was re-engaged. Any reasonable person would have formed the opinion that the employer had decided to condone the appellant’s absenteism or earlier repudiation of the contract of employment.

The employer by its conduct waived its right to discipline the appellant. Once an act of misconduct has been committed, the employer should bring the charges within a reasonable time. There is no reason, in this case, to re-engage the appellant and then wait from June to January of the following year to bring charges.

If it was the employer’s intention to reinstate and then charge the appellant, they could have done so within a reasonable time. But in casu, they reinstated her in June 2010 and did not bring any charges until January of the following year, in 2011. They failed to take any disciplinary action after reinstating for a period of about eight months. The delay in bringing the charges was long and unexplained.

By its conduct of delaying to bring the disciplinary allegations, the employer waived its right to discipline the appellant. Any reasonable person would have formed the opinion that the employer did not intend to pursue the charges and had thus waived its right to discipline.

The appellant’s allegation that the employer had told her to re-apply which she did and was re-engaged also appears to be the most probable explanation for the delay in bringing the misconduct allegations. The employer had decided to waive its right to discipline.

In terms of the Constitution of Zimbabwe Amendment Act No 20 of 2013 every person has the right to be charged within a reasonable time. The relevant section 69 (1) and (2) reads:

“(1)	Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.

(2)	In the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law.”

In casu, the employer’s decision to wait for about eight months is unreasonable and cannot be sanctioned by this court.

The case of City of Harare v Matthew Chokufa Judgment No LC/H/266/12 that I have been referred to is clearly distinguishable as in that case, no arguments were ever placed before the court that there had been an eight months lapse between reinstatement and the preferring of the charges.

I accordingly find that ground of appeal number 1 has merit. The appeal must therefore succeed.

IT IS ORDERED THAT

The appeal succeeds.

The arbitral award is set aside.

The appellant is to be re-instated into her former position.

There is no order as to costs.