City of Harare v Gertrude Muzandaka

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/851/2014
HARARE, 16 SEPTEMBER 2014
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/851/2014

HARARE, 16 SEPTEMBER 2014 &			    CASE NO LC/H/15/2014

19 DECEMBER 2014

In the matter between:

CITY OF HARARE							            APPELLANT

Versus

GERTRUDE MUZANDAKA					           RESPONDENT

Before The Honourable R F Manyangadze   :    Judge

For the Appellant	       Ms A Zvoutete   (Legal Officer)

For the Respondent     Ms J Mawora   (Legal Practitioner)

MANYANGADZE J:

This is an appeal against the decision of an Appeals Committee constituted under the Collective Bargaining Agreement for the Harare Municipal Undertaking,  Statutory Instrument 17 of 2007 (CBA).

The Appeals Committee overturned the decision of the Disciplinary Committee, which had dismissed the respondent from employment after it found her guilty of misconduct.

A brief history of the matter, which is common cause, is that the respondent was found guilty of misconduct sometime in 2009. Particulars of the misconduct were that she had absented herself from duty without lawful excuse, during the period 22 January 2008 to 23 February 2009.

On 16 September 2010, the two parties signed a Certificate of Settlement. This was in recognition of the procedural irregularities connected with the respondent’s dismissal. It was agreed that the respondent be reinstated without loss of salary and benefits. It was also agreed that the appellant could reinstitute disciplinary proceedings against the respondent.

After the respondent was reinstated, the appellant reinstituted disciplinary proceedings against the respondent, in terms of the Certificate of Settlement.

The respondent was found guilty of the alleged misconduct, i.e. absenteeism, and was dismissed from the appellant’s employment.

Aggrieved by the dismissal, the respondent lodged an appeal with the Appeals Committee.

Frustrated by the time the Appeals Committee was taking without determining her appeal, the respondent referred the matter to conciliation. The dispute was referred to arbitration. The arbitrator ordered reinstatement, without looking into the merits, as the appeal had not been finalised. The arbitral award also ordered that the appeal be finalised.

The Appeals Committee, on 13 December 2013, set aside the dismissal and ordered the respondent’s reinstatement. This prompted the appellant’s appeal to this court.

The grounds of appeal are stated as follows:

The Appeals Committee erred at law in coming to a decision to reinstate the respondent on humanitarian grounds without considering the relevant applicable law yet the respondent was fairly dismissed both procedurally and substantively.

The Appeals Committee erred at law in setting aside the Disciplinary Committee’s sentence of dismissal and substituting with reinstatement yet the Code of Conduct Collective Bargaining Agreement : Harare Municipal Undertaking (Code of Conduct and Grievance Handling Procedure) S I 17/2007 does not provide for a sentence of reinstatement where one is convicted of a grossly serious offence.

The Appeals Committee’s decision is grossly unreasonable and irrational in its defiance of logic so as to constitute a ground of appeal.

The basis of the appeal is that the Appeals Committee had no justifiable reasons to set aside the Disciplinary Committee’s decision and substitute it with an order of reinstatement.

The determination of the Appeals Committee is reflected in its minutes of 12 September 2013. The relevant portion reads:

“1.4	The employee representative advised that his suggestion was that the employee should be reinstated on humanitarian grounds.

1.5	The employer advised that although the Review Board concurred with the Labour determination, it was also considered heavily that the employee be considered for reinstatement.

1.6	Resolution: the Review Board then resolved to recommend reinstatement of the employee with benefits.”

These minutes were adopted and confirmed as the decision of the Appeals Committee, on 13 December 2013. The resolution passed at that meeting reads:

“2	The Chairperson asked members whether they still abide by their earlier on decision of reinstatement. Parties confirmed their earlier on decision and agreed to alter the wording from a recommendation to a decision.”

A reading of these minutes, and the resolution confirming them as a decision of the Appeals Committee, shows that the Appeals Committee did not disagree with the determination of the Disciplinary Committee. It however, went on to overturn it on what it called “humanitarian grounds”. This is what the appellant basically took issue with. It contended that the Appeals Committee grossly erred by deciding the appeal on humanitarian grounds and not on recognisable grounds at law.

It appears the Appeals Committee was in a dilemma. It had no basis on which to interfere with the Disciplinary Committee’s decision. At the same time, it felt sympathy for the respondent, a long serving Council employee.

I agree with the appellant that there was no justifiable basis for setting aside the dismissal. There is a long line of cases, from the Supreme Court, that emphasized that an appellate court should not easily interfere with the findings of a lower tribunal, unless it finds gross misdirection in the latter’s decision. In Mashonaland Turf Club v George Mutangadura SC-5-2012, ZIYAMBI JA stated:

“In the exercise of their powers in terms of S 12B (4) of the Labour Act, the Labour Court and arbitrators must be reminded that the section does not confer upon them an unbounded power to alter a penalty of dismissal imposed by an employer just because they disagree with it. In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.”

In casu, there was simply no reason for interference with the Disciplinary Committee’s decision. The Appeals Committee even recognised the soundness of the decision it was tempering with, and nevertheless went ahead to temper with it, by completely overturning it.

There is another dimension to the Appeals Committee’s approach, which complicates matters for the respondent. Its order of reinstatement suggests that it quashed the conviction. There is nothing showing that the reinstatement was accompanied by a lighter penalty, such as a fine or a warning. Such an alternative penalty would have shown that the conviction has been upheld, but the penalty of dismissal has been substituted with a lighter sentence. The Appeals Committee’s decision is not clear, well defined and distinct on the issue of conviction and penalty. That makes it an irregular decision.

In this regard, Ms Zvoutete, for the appellant, submitted as follows at the hearing of the appeal:

“The Appeals Committee set aside the penalty of dismissal and substituted it with reinstatement. This was incompetent. It could not order reinstatement without setting aside the conviction itself. If a person has been found guilty of a gross offence which warrants dismissal, you cannot substitute with reinstatement. The Appeals Committee ought to have quashed the conviction first before ordering reinstatement.”

It appears the Appeals Committee did not look into the merits of the appeal, to warrant its tempering with the conviction. Even if it had allowed the conviction to stand, there was no basis for substituting the discretion of the Disciplinary Committee, which found dismissal appropriate, with its own discretion.

In the circumstances, the decision of the Appeals Committee cannot be allowed to stand. It is accordingly ordered as follows:

The appeal be and is hereby allowed with costs.

The decision of the Appeals Committee be and is hereby set aside.

The decision of the Disciplinary Committee be and is hereby upheld.

Pundu & Company, respondent’s legal practitioners