Chitungwiza Municipality v J Muvavi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/286/2016
HARARE, 3 MARCH 2016 &
CASE NO LC/H/405/2014
6 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/286/2016

HARARE, 3 MARCH 2016 &			                  CASE NO LC/H/405/2014

6 MAY 2016

In the matter between

CHITUNGWIZA MUNICIPALITY					APPELLANT

Versus

J MUVAVI									RESPONDENT

Before the Honourable P Muzofa J

For the Appellant	Ms S Nyagura  (Legal Practitioner)

For the Respondent     M Mavhunga (Legal Practitioner)

MUZOFA J:

This is an appeal from an arbitral award. The arbitrator ordered that the respondent be reinstated without loss of salary and benefits or payment of damages in the alternative.

The facts of the case are not in dispute. The respondent was employed as a security guard by the appellant. On 4 July 2012 the respondent was suspended from duty without salary and benefits it being alleged that he stole four deep freezer doors. He was charged in terms of the appellant’s Code of Conduct.

By letter dated 23 July 2012 the respondent was invited to a disciplinary hearing scheduled for 24 July 2012. According to the appellant the respondent applied for a postponement which was granted. In a letter dated 14 September 2012 the respondent was again invited to attend a disciplinary hearing on 25 September 2012.

It is unclear what happened on 25 September but the disciplinary proceedings did not take place.

The disciplinary proceedings took place on 28 September 2012 in the absence of the respondent.

While the appellant kept on postponing the matter the respondent referred the matter to a labour officer in terms of section 5.2 of the Code of Conduct.

There was no information as to when the referral was made and what became of it.

Despite being advised of the referral to a Llabour Officer the appellant proceeded to conduct the disciplinary proceedings on 28 September 2012. The respondent was found liable and dismissed from employment.

The respondent referred the matter to a Labour Officer. When conciliation efforts failed the matter was referred to an arbitrator. The arbitrator found for the respondent on the basis of procedural irregularities.

The appellant set out two issues on appeal to this court. Firstly that the arbitrator grossly erred by interfering with the employer’s discretion to dismiss where the misconduct went to the root of the contract.

Secondly that the arbitrator erred by disposing of the matter on a technicality instead of referring the matter to be heard in a procedurally fair matter.

The first ground of appeal raises the question of interference with an employer’s discretion to dismiss. The applicable principles of law are settled and aptly stated in a long line of cases in our jurisdiction such as Mashonaland Turf Club v George Mutangadura SC 5-12 and Zikiti v United Bottlers 1998 (1) ZLR 389.

The applicable test is an objective test, whether a reasonable employer would have dismissed an employee in such circumstances. If a reasonable employer might have reasonably dismissed him then, the dismissal was fair. British Leyland U K Limited v Swift 1981 IRL R 91.

Once an employer has taken a serious view of the misconduct it is entitled to dismiss. Where the misconduct goes to the root of the employment contract, technically there is no contract to talk about anymore. The employee would have shaken the roots of the very contract he desires to preserve for his employment.

An arbitrator and indeed any appeal court can interfere with the employer’s discretion where it is shown that the penalty imposed was unreasonable in the circumstances, it does not matter whether the appeal court would have imposed such a penalty or not.

In this case the respondent did not deny the charge of theft. He was actually convicted by a criminal court on the said charges. The respondent relied on procedural irregularities only before the arbitrator. He did not deny the charges. By inference he admitted to the charges.

In terms of the appellant’s Code of Conduct a charge of theft attracts a dismissal on first breach. Accordingly the appellant properly exercised its discretion. Any reasonable employer in the circumstances of the appellant would have dismissed the respondent. The respondent failed to address this issue in squarely but relied on the procedural irregularities which form the basis of the second ground of appeal.

The first ground of appeal is merited and is upheld.

The second ground of appeal is on the effect of procedural irregularities. It is trite that not all procedural irregularities vitiate the proceedings. It must be shown that the partly concerned was prejudiced by the irregularity. Nyahuma v Barclays Bank SC 67-05. It is also settled that a guilty person should not escape punishment on the basis of failure to conduct proceedings properly but because he is innocent. Air Zimbabwe (Pvt) Ltd v Chiku Mensa & Anor SC 89-04.

It was submitted for the respondent that the disciplinary proceedings were based on an unlawful suspension. It was not shown how the suspension of 4 July 2012 was unlawful. In any event the respondent was suspended from duty with salary and benefits.

The proposition by the respondent that reinstatement was the most suitable order because the appellant still had an option to re-institute disciplinary proceedings, in my view is not correct. Reinstatement of the respondent meant the appellant would be saddled with an untrustworthy employee who did not deny the charges at all, but continue to pay him until the second disciplinary proceedings are conducted. That would fly against the principles set out in the Chiku Mensa case supra.

I want to address whether indeed there were procedural irregularities as found by the arbitrator and whether they were prejudicial to the respondent.

The first factual finding was that the board of inquiry which I believe was the disciplinary committee denied the respondent his right to be heard since the proceedings proceeded in his absence. The respondent had advised the committee that he was attending court proceedings which the appellant was aware of.

This was an incorrect factual finding not supported by the facts. The facts show that the matter was postponed following his request. The matter was subsequently heard on 28 September 2012 in his absence. The chairman of the committee indicated that the respondent had refused to sign documents and was therefore not present.

This fact was undisputed therefore it was conceded. He did not request for a postponement on 28 September 2012.

Based on this failure to properly appreciate the facts therefore the basis of the first procedural irregularity is incorrect. Under such circumstances where an employee deliberately absents himself he is taken to have waived his right to be heard. Forestry Commission v Moyo 1997 91) ZLR 254 (SC). In David Moyo v Rural Electirfication Agency SC 4-14 it was also held that absence without leave takes away the right to challenge the conduct of the disciplinary proceedings.

The second irregularity was based on the referral to the Labour Officer. According to the arbitrator, the appellant was advised that the matter had been referred to a Labour Officer in terms of section 53 of its Code of Conduct. It should therefore have suspended its disciplinary proceedings.

The arbitrator conceded that it was unclear when the referral to the Labour Officer was made. It was indeed within the respondent’s right to refer the matter to a Labour Officer. The Code of Conduct in section 5.3 envisages that cases be dealt with within thirty days of their commission. In casu the offence was committed on 19 June 2012 and the respondent was invited to a first hearing on 24 July 2012 which was beyond the thirty day rule in the Code.

There was no evidence of the referral. From the record the only reference of the referral to a Labour Officer was in the respondent’s letter to the appellant where he set out his rights to refer the matter.

The arbitrator equated the rights in section 5.3 of the Code to section 101 (5) of the Labour Act. Both sections though slightly different does not give a right to reinstatement. The sections only give the aggrieved party the right to enforce due compliance so that the matter can be heard either by the disciplinary committee or through the mechanisms set out by the Labour Act.

In my view the delay alone could not have constituted a procedural irregularity vitiating the proceedings. In any event even before the Court both parties were unaware what became of the referral. It would be improper to rely on an unsubstantiated referral to vitiate proceedings.

From the above clearly there were no procedural irregularities as found by the arbitrator. It would therefore be inconsequential to consider whether reinstatement was appropriate.

In any event the proper approach in circumstances where there are procedural irregularities the irregularities should be corrected in one of the three proposals set out in the Chiku Mensa case supra. The rationale is to dispose of the case on the merits rather than technicalities.

In this case I do not believe there were irregularities found by the arbitrator. Even if they existed it was not shown that they caused prejudice on the respondent.

On that basis the appeal must therefore succeed.

The appeal be and is hereby upheld.

The order by the arbitrator be and is hereby set aside and substituted to read:

“The respondent was lawfully dismissed.”

Masikidze & Mucheche, appellant’s legal practitioners

Mavhunga & Associaties, respondent’s legal practitioners