Austin Yugo Mataba v Innsor Africa

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/43/2016
HARARE, 13 JANUARY 2016
CASE NO. [CASE NUMBER]
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THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/43/2016

HARARE, 13 JANUARY 2016    		         	CASE NO. LC/H/280/15

AND 5 FEBRUARY, 2016

In the matter between:-

AUSTIN YUGO MATABA			Appellant

And

INNSCOR AFRICA				Respondent

Before Honourable P. Muzofa, Judge

Appellant			In person

For Respondent		N. Madya (Legal Practitioner)

MUZOFA, J:

This is an appeal from an arbitral award.

The appellant was employed as a shift Manager from November 2009.  During the course of his duties he was found with a variance of forty eight cans of drinks after a random spot check was conducted.  He was charged in terms of Section 4 (a) of Statutory Instrument 15 of 2006 and subsequently dismissed in October 2010.

After the dismissal the case took a long and winding journey.  According to the Respondent the appellant noted an internal appeal on 18 October 2010 and also referred the matter to a Labour Officer on the same day.  When conciliation failed the matter was referred to an arbitrator who referred the matter to the Appeals Officer to determine the appeal within fourteen (14) days.  Appellant noted an appeal against the arbitral award before this court.  The court also remitted the matter for the appeal pending before the respondent to be heard.  The internal appeal was determined in August 2012 and the appellant referred the matter to a Labour Officer.  Subsequently the matter went before an arbitrator.  On 3 February 2014 the matter was remitted to be heard before a different Appeals Officer within fourteen (14) days.

On 18 February 2014 the respondent invited appellant to file additional grounds of appeal if he so wished on or before 20 February 2014.  The appeal determination was issued on 21 February 2014 and the appellant received it on 4 March 2014.  The matter was once more referred to a Labour officer and eventually to an arbitrator.  The arbitration award forms the basis of this appeal.

The appellant relied on six grounds of appeal, that he was victimized he was not the only one who had a variance, that the respondent’s case against him had glaring inconsistences, that the respondent did not comply with the arbitral award, that the arbitrator introduced new evidence, that the appellant was not to blame for the delay in the finalization of this case and that the arbitrator erred by failing to award him three months’ notice pay.

I will address the grounds of appeal seriatim.

The appellant submitted that the manager at Steers had a variance of seventy two (72) cans and another manager had a variance of four (4) cans.  The two were not charged he was the only one who was charged and dismissed.  To that extent there was selective application of the law which is unfair.  For the respondent it was submitted that the appellant committed an offence and the employer was entitled to charge him and dismiss him where there was proof.  The respondent also submitted that the employer is entitled to deal with each employee as it deems fit it is irrelevant how an employer deals with the other employees, Vimbainashe Dube v Standard Chartered Bank SC 105/04.

I totally agree with the respondent, the appellant is simply flogging a dead horse.  The appellant does not deny that he committed the offence.  He did not commit it with the other managers.  There was not even proof before the arbitrator that the other managers had confirmed variances.  It would be a traverse of justice to allow an appeal couched as such to succeed.  The fact that the other managers could have had shortfalls in my opinion does not exonerate appellant.

Precedent is clear on this aspect.  In the case of Lancashire Steel (Pvt) Ltd vs Elijah Z. Mandevhana and Others SC 29/95 at page 6 McNally JA had this to say;

“... In the instant case, authority was granted to terminate the appellant’s services on the grounds of gross incompetency or inefficiency in the performance of his work.  It matters not that authority was not sought for the dismissal of others who performed badly ...”

In my view appellant cannot rely on the non dismissal of the other managers.  Nothing was placed before the arbitrator to show that they committed the misconduct, it remained an exercise of conjecture on the part of appellant.  He cannot expect to be reinstated on that basis alone.  There is no unfairness in this case. There was no victimization he committed the offence and cannot be exonerated.

The ground of appeal has no merit and is dismissed.

The second ground of appeal relates to the adequacy of evidence against the appellant.  According to the appellant the arbitrator erred by failing to attach weight to the inconsistencies in the evidence, the procedural irregularities and the misleading statements by the respondent.

To substantiate his claim on the evidence the appellant claimed that no witnesses were called as stated by the arbitrator.  I must say there is no value addition to this appeal by this argument.  The record of the disciplinary proceedings shows that the complainant who was the first witness gave evidence and the statician the second witness gave evidence.  I believe this argument was premised on appellant’s lack of appreciation as who is a witness.

In any event it should be noted that the appellant did not deny that he had a positive variance.  In my view all the issues raised by appellant do not effectively disprove this truth, there is no way he can escape liability.  He can only do so if he can show that despite having committed the misdemenour, the misconduct is so negligible to warrant a non dismissal.  See Tobacco Sales Floor v Chimwala 1987 (2) ZLR 210.  In casu appellant does not seek a non dismissal penalty but an acquittal which is not compatible with his case especially having committed the offence.

I was not referred to any law that support the position as set out by the appellant.

The second part of the second ground of appeal relates to procedural irregularities.  This is also part of the third ground of appeal.  I will accordingly address then concurrently.

According to the appellant the arbitral award by Honourable Gabilo ordered a trial de novo within fourteen (14) days and that was not done.  From appellant’s perspective the respondent was supposed to set up an appeal body consisting of two or three appeals officers, invite grounds of appeal and hear parties in terms of Statutory Instrument 15 of 2006.

Section 8 of Statutory Instrument 15 of 2006 provides;

“(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.”

That section gives the employer the discretion in the setting up of an appeals structure.  The appellant got it incorrectly.  The respondent in this case opted to appoint one person in its employ a director one Munyanyi to be the appeals officer there is nothing untoward in that.

The second issue is that the respondent did not conduct a hearing de novo to deal with the appeal.  The Honourable arbitrator couched the order that;

“the matter be remitted back to the parties to enable fresh appeal to be convened by a different appeals officer within 14 working days.”

That order did not set out the applicable procedure for the appeal.  The relevant statutory instrument does not set out the appeal procedure.  In casu the Appeals officer opted to consider the appeal on record.  There is no anomaly.  Both parties’ cases were represented in the documents filed Appellant’s presence was therefore unnecessary.  The appellant was invited to file additional grounds of appeal, although it is disputed.  In my view the order for an appeal before another appeals officer was meant to address irregularities occasioned in the first appeal.  Obviously it would not be expected that the appellant’s grounds of appeal would change to a large extent.  This matter indeed deserved to embrace its finality, the arbitrator was correct in that the respondent complied with the arbitral award.  A fresh appeal before a different appeals officer was held.

To that extent grounds of appeal two and three are dismissed.

The appellant abandoned the fourth ground of appeal.  The fifth ground of appeal was not substantiated.  The appellant in his submissions failed to appreciate the essence of this ground of appeal.

He alleged a statement made in passing by the arbitrator, that appellant contributed to the delay in the finalization of this case was incorrect.  This is irrelevant in the disposal of the matter on the merits.  The ground of appeal is dismissed.

The sixth ground of appeal impugns the arbitrator’s decision in not awarding appellant three months’ notice pay.  I cannot fault the arbitrator the position taken was in accordance with the law.  The payment of the three months’ notice is only available to an employee whose services have been terminated in terms of a notice.

In casu the appellant was dismissed on account of misconduct.  He therefore was not entitled to the payment for the three months notice period.

From the foregoing the appeal cannot succeed.  Accordingly it is ordered as follows;

The appeal be and is hereby dismissed.

Wintertons, respondent’s legal practitioners