Cimas Medical Aid Society v Tapiwa O. Nyandoro

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/96/14
HARARE ON 3rd FEBRUARY, 2014
CASE NO. LC/H/199/13
AND 28 FEBRUARY, 2014
JUDGMENT NO. LC/H/96/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/96/14

HARARE ON 3rd FEBRUARY, 2014			                         CASE NO. LC/H/199/13

AND 28th FEBRUARY, 2014

In the matter between

CIMAS MEDICAL AID SOCIETY				–	Appellant

And

TAPIWA O. NYANDORO 					–	Respondent

Before The Honourable L. M. Murasi, J.

For Appellant   :	Mr H. Mutasa (Legal Practitioner)

For Respondent:	MrW.P. Zhangazha (Legal Practitioner)

MURASI, J.

Respondent was employed by Appellant as its Managing Director for the Health Care Division. As a result of certain allegations against him, Respondent was arraigned before Disciplinary Committee which acquitted him. The two parties have been embroiled in litigation culminating in a hearing before the Arbitrator the subject of this appeal.

Appellant submits in the grounds of appeal that:

The Arbitrator grossly misdirected himself when he proceeded on the basis that the Disciplinary Authority ordered the Respondent’s reinstatement.

The Arbitrator grossly misdirected himself when he proceeded on the basis that Appellant had reinstated the Respondent through its letter dated 28th January 2010.

The Arbitrator grossly misdirected himself when he proceeded on the basis that the Labour Court had ordered the Respondent’s reinstatement when the Supreme Court had overturned the Labour Court’s decision.

The Arbitrator erred in law when he failed to find that by agreeing to and accepting payment in respect of the Exit Package, Respondent had effectively agreed to the termination of his employment contract.

The Arbitrator erred in law when he found that the Respondent was entitled to ‘find employment to mitigate his losses when in fact the Respondent’s contention has been that he was on unlawful suspension.

The Arbitrator grossly erred when he found that the ‘documents submitted by the employer were forged documents’

The Arbitrator grossly erred when he failed to find in view of the undisputed evidence, that in fact the Respondent was and/or is working for a company called Graniteside Chemicals (Private) Limited.

The Arbitrator grossly erred when he found that the reasonable period required by Respondent to secure alternative employment is five (5) years.”

Respondent submitted that Appellant’s conclusion on the issue of reinstatement is wrong. Respondent states that when he was found not guilty by the Disciplinary Authority, this had the effect of nullifying the suspension. Respondent further averred that reinstatement was an entitlement having regard to the result of the disciplinary hearing. As to the fact that Respondent had agreed to an exit package, it was submitted that it was an offer to Appellant and that this was a document which must be signed by both parties to show that the agreement indeed existed. It was further submitted that the amount deposited by Appellant was not and did not amount to a terminal package whose figure and conditions remain unknown. Respondent submitted that therefore no agreement on the exit package existed. Respondent further stated he had not repudiated the contract of employment by being engaged by Graniteside Chemicals. He in fact was engaged as locum tenens which did not mean he was employed. This was confirmed, he stated, by the documents produced before the Arbitrator. As to the quantum of damages, Respondent submitted that no meaningful submissions have been made by the Appellant and that quantification of damages is a factual finding by the Arbitrator. Respondent referred to the cross-appeal and submitted that as Appellant had not made any submissions in this regard (and Appellant would be barred anyway) the Court should find in favour of Respondent.

The Court will consider Appellant’s grounds of appeal seriatum. Appellant alleges that the Arbitrator grossly misdirected himself when he proceeded on the basis that the Disciplinary Authority ordered Respondent’s reinstatement. The factual details in this regard will be of assistance in unravelling this point. Respondent was brought before a hearing chaired by JUSTICE SMITH. Respondent had been suspended on 23rd July 2008 on allegations of misconduct in terms of the Labour (National Employment Code of Conduct) Regulations, 2006. He was alleged to have contravened:

Section 4(a) of the Code: act or conduct or omission inconsistent with the express or implied conditions of service;

Section 4(b) of the Code: willful disobedience of a lawful order

The learned retired Judge observed as regards the first charge that:

“the conduct of the employee in relation to the award of the tender to Dohne cannot possibly be regarded as being inconsistent with his implied conditions of service.”

In respect of the second charge, the following was stated:

“In short, therefore, the employee was not in disobedience of a lawful order.”

And

“For the reasons set out above, I find the employee not guilty on both charges”

JUSTICE SMITH was the Hearing Office appointed by the Appellant. Appellant submits that the hearing did not order the reinstatement of the Respondent. The question that arises is what the status of the employee who is suspended on allegations of misconduct and is subsequently found not guilty? This Court notes the following comments by JUSTICE SMITH in the same judgment where be observed that:

“That being the case, the employer can only terminate the employee’s contract of employment if the grounds set out in the letter of suspension dated 23 July are proved to my satisfaction.”

Put differently, the statement may be taken to mean a finding of “NOT GUILTY” means that the employee’s contract is not terminated. In other words he remains in employment. This Court is grateful to the Respondent who cited the case of Stella Nhari vs Zimbabwe Allied Banking Group SC 51/13. In that judgment GARWE JA observed at page 5 of the cyclostyled judgment the provisions of section 6 of the National Code.

“(e) 	After reaching a verdict, the employer shall serve a notice on the employee either terminating the employment if the misconduct has been proved or removing the suspension where the grounds of suspension are not proved.”

The provisions of section 6(2) of the National Employment Code in this respect are peremptory in the use of the word “shall”. The general principle governing the non-compliance with statutory provision was dealt with by INNES CJ in Schierhout vs Ministerof Justice 1926 AD 99 at page 109:

“It is a fundamental principle of our law that a thing done contrary to the direct prohibition of the law is void and of no force and effect……………. And the disregard of a peremptory provision in a statute is fatal to the validity of the proceedings affected.”

It is clear that Appellant utilized the Labour (National Employment Code of Conduct) Regulations in suspending and charging the Respondent. It became and was Appellant’s duty to comply with the provisions of section 6(2) (c) of the Regulations at the conclusion of the hearing. This the Appellant did not do and therefore cannot be heard to state that the hearing did not reinstate Respondent. This ground of appeal must therefore fail.

In the second ground of appeal, Appellant alleges that the Arbitrator grossly misdirected himself in finding that Appellant had reinstated Respondent in its letter dated 28th January 2010. The letter reads in part:

“I also wish to advise you that as things stand, the decision of the Labour Court is not being interfered with by Cimas. When Mr Chaora returns from his foreign trip tomorrow (Friday, January the 29th 2010), I will make arrangements for you to be reinstated on the payroll as an employee on paid leave.”

The Arbitrator is said to have “grossly misdirected” himself in taking this as reinstatement. The author of the letter clearly states that Respondent would be “reinstated on the payroll.” One believes payrolls refer to a schedule of payment of employees. The Court is of the view that there was no misdirection on the part of the Arbitrator on this issue and the ground of appeal must fail.

The third ground of appeal is that the Arbitrator grossly misdirected himself when he proceeded on the basis that the Labour Court had ordered the Respondent’s reinstatement when the Supreme Court had overturned the Labour Court decision. Respondent submitted on this point and stated that the matter was not heard on the merits but dismissed on a technicality. These were the submissions made before the Arbitrator as stated by Respondent. A look at the order made by the Supreme Court clearly shows that the matter was not dealt with on the merits.  Can it be said the Arbitrator grossly misdirected himself in making a finding that the merits of the Labour Court Order had not been considered in the appeal before the Supreme Court and therefore not overturned? I think not.

The fourth ground of appeal relates to the Arbitrator’s alleged erring in law in not finding that Respondent had agreed to the Exit Package with Appellant. A clearer picture would be painted by an allusion to the facts on this ground. Respondent wrote to Appellant requesting for an advance which would form part of a package to be agreed upon. Respondent further stated that if no agreement on this package was agreed upon, then the matter should be finalized at arbitration.  Appellant went ahead and deposited the money but did not respond to Respondent’s letter and neither did it make a counter-offer. In the circumstances, can it be concluded that Appellant and Respondent had agreed on an exit package? I am inclined to agree with Respondent’s submissions on this point. Respondent states that no agreement materialiased as there was no acceptance by Appellant and that it is also a requirement that such package should be in writing. The ground of appeal must fail.

The fifth ground of appeal by Appellant was that the Arbitrator erred in law when he found that the Respondent was entitled “to find employment to mitigate his loss” when in fact the Respondent’s contention has been that he was on unlawful suspension. The Court finds this ground of appeal not supported by the contents of the record. This certainly does not emanate from the Arbitrator’s finding. A look at the record shows that the statement referred to falls under “Respondent’s submissions” and the part of the sentence referred to by Appellant shows that it is a continuation of the submission. The finding of the Arbitrator follows thereafter that Respondent did not terminate his employment because he did not take up the alleged employment. The basis of the finding is on the affidavits referred to by the Arbitrator. Appellant based this ground of appeal on a misunderstanding or misreading of the Arbitrator’s award. The Arbitrator did not make such a finding. This ground must also fail.

The sixth ground of appeal was that the Arbitrator grossly erred when he found that the “documents submitted by the employer were forged documents.” The first issue the Court notes is that this ground of appeal does not raise a point of law as required in terms of section 98(10) of the Act and should be discarded on that ground. A look at the facts show that Appellant adduced evidence by way of documentary proof that Respondent was employed by Graniteside Chemicals.  Respondent produced affidavits from the purported author of the document disclaiming the document in question. The affidavits showed that Respondent was engaged as a locum tenens and not employed by that company. The reasoning of the Arbitrator in arriving at the finding that the documents were forged must in fact arise from his believing the affidavits rather than a document that was signed “per pro”. As submitted by the Respondent, Appellant did not place any evidence before the Arbitrator to refute the fact that the document it had tendered as proof was not a forgery. Appellant’s Counsel conceded that an affidavit would carry more evidential weight than the document tendered. Apart from dismissing this ground of appeal as not being on a point of law, the Court finds there was no misdirection on the part of the Arbitrator in accepting the contents of the affidavits as proof of the matter.

The seventh ground of appeal stated that the Arbitrator grossly erred when he failed to find, in view of the undisputed evidence, that in fact the Respondent was and/or is working for a company called Graniteside Chemicals (Private) Limited. This is a re-cycled ground of appeal similar to issues already determined above and for similar reasons, it must also fail.

The last ground of appeal is that the Arbitrator grossly erred when he found that the reasonable period required by Respondent to secure alternative employment is five (5) years. A consideration of the ground of appeal does not bring to the fore the point of law that the Court is called upon to determine. This was a factual finding by the Arbitrator. The issue of a reasonable period is also considered below when the Court will deal with the cross-appeal. This ground of appeal fails.

Turning to the cross-appeal, Respondent avers that the Arbitrator erred and misdirected himself at law by “reducing” a claim for damages in lieu of reinstatement from 10 years to 5 years. ZIYAMBI JA had occasion to consider the issue in Redstar Wholesalers vs Edmore Mabika SC 52/05 where he stated:

“The principle established in cases like Ambali vs Bata Shoe Co. Limited 1999(1) ZLR 417 (S) and ZUPCO vs Richard Christopher Daison SC 87/2002 is that damages for wrongful dismissal are calculated on the basis of the length of time, calculated from the date of dismissal, which it would reasonably take the dismissed employee to find other employment. The employee is entitled to his salary for that period which must be ascertained by the Court on the basis of the evidence before it.”

The Arbitrator referred to the Ambali case in his determination. The submission by the Respondent   goes beyond the issue of the length of time reasonably expected for him to find employment. Respondent brings in the issue of his anticipated retirement and ill-health.  The Arbitrator was required to assess the period within which Respondent was reasonably expected to find employment having regard to his position and qualifications. I find no reason to fault the Arbitrator’s finding in this regard. It is also trite that the Court should warn itself that it is not called upon to re-assess the case and come up to a conclusion. The Court is merely being called upon to scrutinize the decision to ensure that it is reasonable in the circumstances. The Court therefore dismisses the cross-appeal.

Having regard to the issues raised on appeal, this Court refers to the observations of KORSAH JA in Hama vs National Railways of Zimbabwe 1996 (1) ZLR 664 (SC) at 670 D where he stated:

“an appeal Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be applied could have arrived at such conclusion.”

In the result, the Court finds no merit in the appeal and it is dismissed. The cross-appeal equally is meritless and is also dismissed.

There is no order as to costs.

Gill, Godlonton & Gerrans – appellant’s Legal practitioners

Chinogwenya & Zhangazha – respondent’s Legal practitioners