Commercial Workers' Union v Waddilove Muparanganda

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/477/14
HELD AT HARARE 3RD JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/477/14

HELD AT HARARE 3RD JULY 2014			CASE NO LC/H/325/13

& 1ST AUGUST 2014

In the matter between:-

COMMERCIAL WORKERS’ UNION			Appellant

And

WADDILOVE MUPARANGANDA			Respondent

Before The Honourable P Muzofa, Judge

For Appellant		Ms S Nyagura (Legal Practitioner)

For Respondent		A Chambati (Legal Practitioner)

MUZOFA, J:

This is an appeal against an arbitral award issued on 26 April 2013.

The facts of this case are largely undisputed.  Following suspicion that respondent had committed acts of misconduct, he was suspended without pay and benefits on 12 October 2009.   The letter of suspension also invited respondent to attend a disciplinary hearing on 30 October 2009.  Two charges were preferred against the respondent it being theft or fraud and failure to deposit subscriptions he received within the stipulated seven days.  He was found liable and dismissed.  Respondent referred the matter to the Ministry of Labour for conciliation.  Conciliation failed and the parties subsequently appeared before an arbitrator.   The arbitrator after hearing parties made the following order;

Claimant’s dismissal was substantively fair

Claimant’s dismissal was unprocedurally unfair

I therefore order that claimant be paid his salary and benefits from the date of suspension to the date of the award, 26 April 2013.  Such payment should be made within 14 days of receipt of this award.

It is further ordered that claimant’s contract of employment is terminated with effect from 26 April 2013.

If parties fail to agree on the calculations, they can approach the arbitrator for quantification.

Aggrieved by the award the appellant then appealed to this court.  The

grounds of  appeal raised two issues namely whether the respondent was entitled to a salary from the date of suspension when infact his contract was terminated.  The second issue being when was respondent’s contract lawfully terminated.  At the time appellant noted the appeal it was not legally represented.  Appellant later instructed legal practitioners who filed amended grounds of appeal.  Respondent applied to have the amended grounds of appeal struck off since they were improperly before the court.  It was argued that the appellant should have sought for the court’s leave to file, the amended grounds of appeal.  It was further argued that the filing of the amended grounds of appeal was prejudicial to the respondent since respondent prepared his heads of argument without the amended grounds of appeal.  The court struck off the amended grounds of appeal in that this was prejudicial to the appellant’s case.

Appellant’s heads of argument raised a preliminary issue that respondent failed to file heads of argument within the stipulated time in terms of Rule 19 and therefore was barred.  Before this court the respondent made an oral application for condonation for late filing of heads of argument.  The application was granted by consent.

It was submitted by appellant that the arbitrator erred in ordering the payment of salaries from the date of suspension in view of his finding that the respondent’s dismissal was substantially fair.  It was further argued that despite the procedural irregularities the dismissal should have been made with effect from the date of dismissal by appellant and not the date of the award.  It was argued by the respondent that the arbitrator had set aside the dismissal and therefore the respondent was entitled to the salary.

It is not in dispute that the disciplinary hearing conducted by the appellant was marred by grave irregularities.  As correctly pointed out by both parties a court or tribunal, ceased with such a matter has two options to either remit the case for the irregularities to be corrected or hear the evidence de novo.  This is meant to guard against deciding labour matters on procedural irregularities see Dlany Mine v Muza Banda 1999 (1) ZLR 220 (S).  It was not in dispute that the arbitrator opted to hear the evidence and decide on the matter.  It was thereupon that the arbitrator  confirmed the dismissal as of the date of the award 23 April 2013.  The question that arises from the facts is what was respondent’s position after the finding that the dismissal by appellant was procedurally unfair?  The dismissal was clearly set aside, the respondent occupied the position he was in before the dismissal.  Before the dismissal the respondent was on suspension without salary and benefits as per the letter of suspension.  It was argued by respondent that during the disciplinary hearing the suspension was uplifted.  This is correct because on page 56 of the record during the hearing the General Secretary indicated

“… Your suspension without pay has been lifted and you can get your pay if you go to the bank now.”

However the proceedings uplifting the suspension, having culminated

into an unprocedurally unfair dismissal were set aside.  To my mind everything that transpired was set aside including the upliftment of the suspension.  When  the arbitrator set aside the dismissal the respondent reverted to his position on suspension without salary and benefits see generally Standard Bank of Zimbabwe v Chikomwe and 211 Others SC 77/00.  I do not agree with respondent that he was entitled to the salary.  He was not entitled to the salary and benefits as he was clearly on suspension without salary and benefits.  This ground of appeal has merit and therefore succeeds.

The second issue raised being that the date of dismissal should have remained 6 November 2009 and not the date of award 23 April 2013.  I cannot fault the arbitrator’s reasoning.  The arbitrator made a finding that as   of

6 November 2009 respondent’s dismissal was not fair.  He set aside the dismissal.  By so doing respondent although not reinstated remained not liable.  However the arbitrator considered the evidence and on 23 April 2013 he made a finding that the respondent was liable.  The only inescapable conclusion was that the  lawful dismissal was as from 23 April 2013.  This ground of appeal is meritless and accordingly dismissed.

The appeal therefore partially succeeds and accordingly the following order is made.

The appeal be and is hereby upheld

The arbitral award dated 23 April 2013 is hereby upheld

No order as to costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Chambati, Mataka & Makonese, respondent’s legal practitioners