City of Harare v Morton Mataruse

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/335/2014
HARARE, 02 & 06 JUNE 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/335/2014

HARARE, 02 	 & 06 JUNE 2014                                               CASE NO. LC/H/795/13

CITY OF HARARE						Appellant

MORTON MATARUSE					Respondent

Before The Honourable G. Musariri, Judge:

For Appellant 		Mr. C. Kwaramba, Attorney

For Respondent		Mr. E. Mangezi, Attorney

MUSARIRI G:

An arbitration award made by the Honourable D.H. Muza is the subject of this appeal.  The award ordered Appellant to reinstate Respondent’s employment or alternatively to pay him damages for loss of employment.  Appellant appealed to this Court against the award.  Respondent opposed the appeal.

The crux of the appeal was that the award was grossly unreasonable and irrational.  Excerpts of the award were quoted in support of this contention.  The relevant portion subtitled “Arbitrator Analysis” read as follows,

“15. The Arbitrator also noted that the Respondent’s case against the Claimant had merits since the Claimant failed to observe the laid down procedures during the selling of livestock.

16. There were obvious losses which the Respondent incurred though the sale of pregnant cows and productive bulls.”

The charge arose from the sale of livestock at Appellant’s farms in November 2008.  Respondent was employed as the Acting Group Farm manager.  The charge laid was gross dereliction of duty in that “he did not witness, manage or supervise the loading of cattle from Council farms to Zeffel/Zim Halaal Abattoir in accordance with laid down Council procedures and did not witness the slaughter and grading of meat at Zim Halaal Abattoir.” The afore-quoted excerpt from the arbitrator shows that she found that the charge was proved.  In other words she found Respondent guilty of dereliction of duty.  However she went on to rule that,

“Arbitral Award

In light of the above it is hereby determined that Claimant was unfairly dismissed since the duties which he was found to have derelected (sic) were for the position of Group Farm Manager a position where he worked in an acting capacity.  Claimant should therefore be reinstated to the position he held before he was appointed to the acting position without loss of salary and benefits.”

The arbitrator bundled the question of verdict and the question of penalty.  She thus produced a muddled ruling.  Her verdict was to find that Appellant was guilty as charged.  Her ruling was to say he should be demoted which deals with penalty.  She conflated “verdict” and “penalty.”   In the process she overlooked the fact that an assessment of the fairness of the penalty of dismissal is made in light of aggravating and mitigating factors.  Perhaps she intended to say the offence was mitigated by the fact that Respondent was employed in an acting capacity.  However that is only one of several factors that should have been considered in a proper assessment of the fairness of the dismissal.  It was not the sole determinant of the issue.  In any event Respondent did not raise the issue of his acting capacity either in this court or before the arbitrator.  In the circumstances and I am persuaded that the award was unreasonable and irrational.

Wherefore it is ordered that,

The arbitration award made by the Honourable D.H. Muza is hereby set aside, and

Each party shall bear its own costs.

G. MUSARIRI

J U D G E