Air Zimbabwe v Captain Chigumira

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/475/2014
HARARE ON 23 SEPTEMBER, 2013
CASE NO. LC/H/83/2013
AND 22 JULY 2014
JUDGMENT NO. LC/H/.../2014
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO.LC/H/475/2014

HARARE ON 23 SEPTEMBER, 2013	    CASE NO. LC/H/83/2013

AND 22 JULY 2014

In the matter between:-

AIR ZIMBABWE						-	Appellant

And

CAPTAIN CHIGUMIRA					-	Respondent

Before The Honourable B.T Chivizhe: Judge

For Appellant		Mr. L. Zinyengere (Legal Practitioner)

For Respondent	Advocate T.Sibanda (Legal Practitioner)

CHIVIZHE, J.

The present appeal was noted against an arbitral award handed down on the 6th of October, 2012 the operative part of which reads as follows;

“I thus find the decision to dismiss Claimant a nullity.  There is no compulsion to go into the merits of the matter out of an abundance of caution however, I confirm that I have studied the matter on the merits and I conclude that on the basis of the facts and the law the dismissal is untenable.

Claimant was unlawfully and unfairly dismissed.

Claimant to be reinstated without any loss of salary and benefits.  In the event that reinstatement is no longer tenable the parties are to agree on the quantum of damages within 7 days of this award.  In the event that the parties fail to agree either of the parties on notice to the other, can set the matter before me for quantification.

I so decide.”

The material background facts to the matter as follows;

“The Respondent was employed as a Captain.  He was initially suspended for an alleged misconduct on the 18th of November, 2008.  He was re-suspended by the Appellant on the 5th of December 2008 for three alleged acts of misconduct namely;

conduct on omission inconsistent with the fulfilment of the express or implied conditions of his contract.

absence from work for a period of five (5) or more working days without leave or more working days with leave or reasonable cause or alternatively;

habitual and substantial neglect of duty.”

The Respondent was arraigned before a disciplinary authority on the 3rd of March, 2009.  He raised a preliminary point that the Appellant’s lawyers were not supposed to be part of the hearing.  The preliminary point was dismissed by the Disciplinary authority and the Respondent appealed against its dismissal to the Appeals Authority.  Whilst the appeal was still pending before the Appeals authority the Appellant approached the Disciplinary Authority and requested the matter proceed on the merits as the Appellant had opted not to be represented at the hearing.  The Disciplinary Authority reconvened its hearing on the 23rd March 2009.  The Respondent, despite notification, opted not to attend the proceedings taking the view that the matter not having been formally withdrawn from the Appeals Authority that body remained seized with the matter.  The Disciplinary Authority had according to Respondent become functus officio.

The Disciplinary authority proceeded with the hearing with Respondent in absentia.  The body returned a guilty verdict on the first two charges and found Respondent not guilty on the last charge of habitual and substantial neglect of duty.  The Disciplinary Authority after weighing mitigatory factors against aggravatory factors them imposed a dismissal penalty with effect from the date of suspension.  Aggrieved by the decision Respondent referred the matter initially for conciliation and when settlement failed to compulsory arbitration.

In his award the Arbitrator found that it was improper for the Appellant to have proceeded with a hearing on the merits whilst the matter was still on appeal on the preliminary matter raised by the Respondent.  It was his view that the Appellant having acceded to Respondent’s objection the parties should have recorded an agreement and formally withdrawn the matter from the Appeals Officer.  The Arbitrator consequently found that the decision to dismiss Respondent from employment was a nullity.  He handed down an award in the terms as referred to supra.

The Appellant was aggrieved by this decision and has noted the present appeal on the following grounds.

The Honourable Arbitrator grossly misdirected himself on a point of law by failing as he did to appreciate that the Respondent ought not to have been granted audience as he had dirty hands.

The Honourable Arbitrator grossly erred at law by failing as he did to appreciate the settled legal position that a party cannot appeal against a default judgment/finding without seeking for rescission of the order first.

The honourable Arbitrator erred in fact and law in finding that the matter was pending as an appeal when in fact and law the grievance appealed against had been removed by the Appellant’s concession.

The Honourable Arbitrator erred at law in making an incorrect finding of law that the disciplinary tribunal did not have the jurisdiction to determine the matter.

The Honourable Arbitrator erred in fact which error is so gross as to amount to an error of law in failing to appreciate that after the Appellant’s acceding to the Respondent’s objection the Respondent was duly advised of the new hearing date and as such was in wilful disobeyance and default.

I shall address the grounds of appeal seriation.

The Appellant has suggested in the first ground of appeal that the Respondent is coming to court with dirty hands. The dirty hands policy was set out with clarity in Associated Newspapers of Zimbabwe (Pvt) Ltd Vs Minister of State for Information and Publicity and Ors 2004 (1) ZLR 538 (5).The rationale for the rule is that a court of law cannot connive or condone open defiance of law and that citizens are obliged to obey the law and argue afterwards. The Respondent has not responded to the point.

On the facts of the matter it is clear that the Respondent conducted himself in open defiance of the law. It was open to him to have attended the disciplinary hearing and registered his complaint before the disciplinary committee. The issue is one of compliance with law. Nobody is above the law. He however chose to stay away from the proceedings and cannot shirk the that his hands are not clean, Instead of taking the route to deny the Respondent audience until he “cleans” his hands, I believe this matter should be best resolved on its merits rather than on the technical basis that the Respondent hands are dirty. For that reason I would dismiss the first ground.

The second ground of appeal is that the Arbitrator erred by failing to appreciate that the Respondent having defaulted appearance at the disciplinary hearing a default judgment was entered against him. The correct procedure was for an application for rescission of such a default judgment. The Respondent had however filed no such application. To that extent the proceedings before the Arbitrator were irregular the Arbitrator having no jurisdiction to entertain the matter. For that reason the award ought to be set aside. This issue just as the first issue was placed before the Arbitrator who deemed it in the interest of justice to proceed rather than treat the matter as a “default judgment” and ask the disciplinary to rescind its earlier decision. I cannot again fault the Arbitrator for taking the approach even through clearly what was before him was in essence a decision emanating from a default judgment.

The third point is that the Arbitrator erred in finding that the matter was pending on appeal when in fact after the concession by the Appellant to the point of objection there were no further grounds for the matter to remain on appeal. The fourth point is that the Arbitrator erred in finding that the disciplinary tribunal had no jurisdiction at that point to determine the matter. I find it convenient to address the last three grounds of appeal at the same time. The Respondent submission on all the grounds is that he did not attend the disciplinary hearing for the reason that the appeal on the preliminary point was still outstanding. The appeal according to the Respondent automatically stayed the rest of the proceedings. The disciplinary committee thus had no jurisdiction.

The Arbitrator in his award found that it was improper for the Respondent to proceed with the hearing whilst the matter was still on appeal on the preliminary objection. It was his further view that the disciplinary committee as at that stage lacked jurisdiction to deliberate much less to render the dismissal verdict. The Appellant having conceded to the Respondent preliminary objection the parties should have recorded an agreement and formally withdrawn the matter from the Appeals Officer. It was on this basis the Arbitrator concluded that the decision to dismiss responded was a nullity.

I am persuaded by the Appellant submissions. The record clearly shows that the Respondent who was legally represented at all times was advised of the Appellant’s decision to proceed with disciplinary hearing on the basis of Appellant’s concession to the Respondent’s preliminary of to objection. The Respondent was formally advised of the scheduled hearing before the disciplinary committee. The Respondent however communicated his wish not to attend the hearing. The Respondent by referring the matter on appeal was seeking in relief an order that the Appellant legal practitioners be disallowed from representing Appellant in the disciplinary proceedings. Clearly once the reason for objection had been removed by the concession there was no reason for the Respondent to persist with appeal. Against that background the Respondent had clearly chosen to waive his rights to be heard in the disciplinary hearing.He took a calculated risk that the hearing would proceed in his absence and it did. The disciplinary hearing proceeded and considered the evidence in his absence. He cannot cry foul at this late stage. See Forestry Commission vs Moyo 1997 (1)ZLR 254 (5) Dombodzvuku vs CMED SC 14/11.

The court does not agree with the Arbitrator’s findings that the Appellant having conceded to the Respondent’s objection the parties should have recorded an agreement and formally withdrawn the matter from the Appeals Officer. Once the Appellant formally communicated its concession to the Respondent it meant the Disciplinary Authority could proceed with the matter. Whilst in practical terms it would have been more appropriate to record that concession and have the matter formally withdrawn the point is really a technical one which did not in any way alter the position that the objection having been conceded to fell away. The Disciplinary Committee clearly had jurisdiction to proceed with the matter. If however the Respondent had concerns of potential bias on the part of Disciplinary Committee having previously determined the preliminary objection against him the Respondent would have objected to the composition of the Disciplinary Committee at the hearing. The Respondent however opted not to attend the proceedings.

This issue disposes of the matter. There is no need for the court to proceed into merits of the matter.

It is accordingly ordered as follows

The appeal succeeds.

The arbitral award handed down on the 6th of October, 2012 be and is hereby set aside

The Respondent shall remain dismissed from employment.

MUTUMBWA MUGABE & PARTNERS, Appellant’s Legal Practitioners

CHINAWA LAW CHAMBERS, Respondent’s Legal Practitioners

AMBERS, Respondent’s legal practitioners