Confederation of Zimbabwe Industries v Rita Marque Mbatha and Farai Bwatikona Zizhou

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/512/16
HELD AT HARARE 13 JUNE 2016
CASE NO
JUDGMENT NO LC/H/512/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/512/16

HELD AT HARARE 13 JUNE 2016				CASE NO LC/H/336/14

& 9 SEPTEMBER 2016

In the matter between:

CONFEDERATION OF ZIMBABWE INDUSTRIES		Appellant

And

RITA MARQUE MBATHA					1st Respondent

And

FARAI BWATIKONA ZIZHOU					2nd Respondent

Before The Honourable Murasi, J

For Appellant			H Mutasa (Legal Practitioner)

For 1st Respondent		In person

For 2nd Respondent		No appearance

MURASI J:

This matter has a chequered history.  It clearly depicts the fact that the wheels of justice move at a painfully slow speed.  It has been pending since 2003.  The matter has been afflicted by various applications, correspondence flying between the appellant’s legal practitioners and the 1st respondent with some of the correspondence exhibiting the use of intemperate language.  Allegations of insincerity have been made by the 1st respondent against appellant’s legal practitioners.  Letters were addressed to the Senior Judge of this court so that the learned judge could wade in and give some direction in the matter.  Court applications have been filed with both the High Court and this court.  One such application led to an order from the Supreme Court which culminated in the matter being set down for hearing on the merits.  This order was by PATEL JA in which it was stated that the hearing on the merits should be held on or before 30 June 2016.  The matter was set down and heard on 13 June 2016.

For the sake of brevity, the facts in this matter can be summarised in the following manner.  1st respondent was employed by the appellant as 2nd respondent Personal Assistant.  1st respondent made allegations against the 2nd respondent which she believed should have been resolved by the appellant.  It was alleged that 2nd respondent had sexually harassed the 1st respondent.  It is further alleged that 1st respondent was engaged in an altercation with a fellow employee which culminated in a physical brawl.  1st respondent was subsequently brought before a disciplinary committee which found her guilty and recommended her dismissal.  The matter was subsequently referred to arbitration.  I should mention that two other arbitrators had handled the matter without concluding it until the third arbitrator who subsequently finalised the matter in 1st respondent’s favour.  Appellant is aggrieved by this finding and has approached this court for relief.

Appellant’s grounds of appeal are as follows:

The honourable arbitrator grossly misdirected herself when she proceeded to determine the matter on the basis that no action had been taken against the second respondent following first respondent’s report of alleged sexual harassment.

In any event, the honourable arbitrator erred in law when she found that the first respondent is (was) entitled to monetary compensation for the alleged sexual harassment.

The honourable arbitrator erred in law when she found that first respondent had been unfairly dismissed.

At the commencement of the proceedings, Mr Mutasa stated that he wanted to

raise a preliminary point on the fact that 1st respondent’s response had been filed out of time and thus she had not complied with the rules of the court.  The court indicated that since the Supreme Court had ordered that the matter should proceed on the merits, it was condoning this non-compliance and the 1st respondent’s response should be deemed to be properly before the court.

On the merits, Mr Mutasa submitted that the arbitrator was guilty of a misdirection when the arbitrator made the finding that appellant was liable for damages for sexual harassment perpetrated by 2nd respondent.  It was argued that the arbitrator purported to award delictual damages when the Labour Act clearly prescribed that disputes should be confined to labour issues.  Mr Mutasa further averred that in subsequent proceedings, 1st respondent had made the concession that the arbitrator had erred in this respect.  It was further submitted that the disciplinary hearing had been properly handled.  It was pointed out that when 1st respondent had not attended the first hearing appellant had gone out of its way to recall all the witnesses who had testified.  The 1st respondent had been given the opportunity to hear the witnesses’ evidence and cross-examine them.  Mr Mutasa further pointed out that what came out of the minutes of the disciplinary hearing was that there was a fight between 1st respondent and another employee.  The minutes, it was alleged, clearly showed that the fight could not be classified as one which had taken place in the heat of the moment and several other employees had come to stop the fight.  It was further argued that the arbitrator erred when she reached the conclusion that 1st respondent should have been found guilty of a lesser offence which would not have warranted dismissal.

1st respondent initially dwelt on the issue that appellant’s legal practitioners had clearly ensured that she would not get correspondence as they addressed such correspondence to her previous address when they were aware that she was represented by the Legal Resources Foundation.  As far as the award for damages for sexual harassment was concerned, Mrs Mbatha, 1st respondent, stated that at a later hearing the arbitrator had clearly stated that the parties had agreed that these should be filed in a different forum.  1st respondent further submitted that the concession she had made during the hearing before the arbitrator was the award related to pension contributions.  1st respondent reiterated the fact that the minutes were not a correct record as these were authored by the Acting Chief Executive Officer who was an interested party.  1st respondent stated that she did not fight with the fellow employee as alleged but admitted to using insulting language.  1st respondent further submitted that nothing was destroyed at the workplace.  She stated that the sexual harassment had indeed affected her as she was forced to visit a psychiatrist for assistance.  1st respondent concluded by saying that there was no misdirection on the part of the arbitrator.

The court will deal with the alleged award for sexual harassment.  This award is couched as follows in the arbitral award:

“Claimant was sexually harassed by first respondent and I order that second respondent should be held liable jointly with first respondent to compensate claimant for the damages she suffered.”

In the quantification hearing before the same arbitrator, she makes the following observations:

“On the date of the oral hearing, the parties consented to the claim of general damages for physical mental and psychological pain, suffering and contumelia to be withdrawn since it was delictual and was before a wrong fora (forum).  This then means that this tribunal will only look at damages for wrongful dismissal.”

What is interesting is that the arbitrator does not comment on the legality or otherwise of the said “agreement” between the parties.  The arbitrator does not state whether this was the correct legal position.  This is in spite of the fact that her own arbitral award made specific reference to the fact that appellant and 2nd respondent were jointly liable for damages emanating from the alleged sexual harassment of 1st respondent.  The arbitrator’s award was extant.  What was to happen to that portion of the award which clearly stated that both appellant and 2nd respondent were liable?  The arbitrator must have realised her error in this regard but took no steps to ensure the matter was rectified.  She could have made the steps to have the award annulled. Her professionalism in this regard becomes questionable.  1st respondent later filed a suit in the High Court under Case No. 4968/14 in respect of the sexual harassment.  The arbitrator was clearly in error in making the award and that ground of appeal must succeed.

I now turn to the arbitrator’s determination in respect of the hearing conducted by the appellant culminating in her conviction and dismissal.  The arbitrator made the following findings in respect of the alleged fight between 1st respondent and a Mrs Ndlovu:

“However respondent (appellant in this case) in their submissions is contradicting themselves from what is in the minutes by saying that the physical fight was perpetrated by claimant but in the minutes Mr Zizhou himself said he could not tell who started the fight but could only assume that it was Ms Ndlovu because when he got to the scene, he found them fighting behind Mbatha’s desk after Ms Ndlovu had been talking from the front of the desk.”

Later in her analysis the arbitrator states as follows:

“The evidence shows that there was clear provocation which led to an alleged fight which however was denied by the claimant and the co-accused.  In that case claimant should have been found guilty of committing a major but not serious offence of using abusive language which did not warrant the penalty of dismissal.”

Was this finding correct?  The minutes and the record show that the genesis of the whole feud was the 1st respondent.  1st respondent does not deny that she insulted Ms Ndlovu in Zizhou’s office without any provocation from Ms Ndlovu.  1st respondent was reprimanded by Zizhou in Ms Ndlovu’s presence.  Ms Ndlovu’s evidence is as follows:

“She went back to her desk and sat down briefly before she decided to go back to Mrs Mbatha’s (1st respondent in this case) office to demand an explanation over the use of offensive language.  An argument then ensued between the two resulting in a physical confrontation in Mrs Mbatha’s office which she said was started by Mrs Mbatha.”

The arbitrator alleges there was clear provocation which led to the fight.  This is not supported by the evidence.  The alleged discrepancy between Zizhou’s evidence as to who started the fight is explained in the minutes in the evidence of Ms 	Ndlovu thus:

“Ms Ndlovu was then called back for further cross-examination because the panel wanted to know how she got behind Mrs Mbatha’s desk.  She said that as she was talking to Mrs Mbatha from the front of her desk, Mrs Mbatha stoop up and came to where she was and they started pushing each other and she ended up behind Mrs Mbatha’s desk.”

The explanation by Ms Ndlovu is logical.  She had been insulted by 1st respondent before the CEO and she did not understand why 1st respondent had acted in that manner.  She went to 1st respondent’s office in order to get an explanation.  She found the 1st respondent in a belligerent mood and a fight ensued.  Was there evidence of provocation on 1st respondent as found by the arbitrator?  A reading of the record and minutes shows that the opposite transpired.  After Zizhou had entered the office and stopped the fight, the following is said to have taken place according to the minutes:

“As they started fighting or pushing and shoving each other, other members of staff came to the rescue and she remembered Mr Zizhou, Miss Tururu and Mr Masiyanyma.  She said she could not clearly recall what each of those people who came did because the physical confrontation was very intense.  As soon as she got free she left to go back to her office.  Mrs Mbatha followed her and there was another altercation in the passage.  Other members of staff came in to stop them again e.g. Miss Matambo, Mr Ranga, Mr Masiyanyama etc.  After they were separated, Ms Ndlovu again proceed to her office and locked the door to the Accounts office to stop Mrs Mbatha from coming after her again.  Mrs Katsumbe had gone out of her office and as she opened the door upon her return, Mrs Mbatha took that as an opportunity to go and fight Mrs Ndlovu again.  Other staff members

again came in to stop the fight.  In the process Ms Nldovu’s blouse got torn.”

Is this evidence consitent with the finding that 1st respondent was provoked?  I certainly think not.  This evidence by Ms Ndlovu was corroborated in all material respects by the evidence of Miss Tururu.  Her evidence is captured in the following manner:

“She went on to say she witnessed the second altercation by the passage when Mrs Mbatha followed after Ms Ndlovu and attacked her.  She said that she witnessed a third fight by Ms Ndlovu’s desk when Mrs Mbatha followed Ms Ndlovu again and started pulling her hair.”

1st respondent does not state that these witnesses had any reason to manufacture evidence against her.   The witnesses repeated the evidence when they were re-called and were cross-examined by 1st respondent’s counsel.  The other piece of evidence is to the effect that Ms Ndlovu had to seek the protection of the CEO in order that she safely leave the premises because she feared another attack from the 1st respondent.  Elsewhere in the judgment I have quoted the arbitrator’s finding that the 1st respondent should have been found guilty of a lesser offence, that is, one of using insulting language.  Does the evidence show that 1st respondent was guilty of using insulting language?  Hardly.  The evidence shows 1st respondent’s involvement in a prolonged and bitter brawl with Ms Ndlovu.  To make matters worse, 1st respondent does not proffer any explanation as to why Ms Ndlovu was the target of her anger.  It is my view that the findings of the arbitrator are clearly inconsistent with the record and the minutes of the proceedings.

Precedent has shown that an appellate court will interfer with the decision  of a lower court or tribunal where there is evidence of a misdirection.  This was held to be the case in such matters as Mashonaland Turf Club v George Mutangadura S 5/12, Chioza v Siziba S 4/15 amongst others.  In casu the court is of the view that it would not favour the interests of justice to uphold the decision of arbitrator.  In respect of the penalty of dismissal meted out on the 1st respondent, the arbitrator was of the view that the minutes show that, without any provocation, the 1st respondent insulted Ms Ndlovu in the presence of the CEO.  After Ms Ndlovu had approached her in her office to understand the cause of these insults, 1st respondent resorted to violence which was stopped by the CEO and other staff members.  After this episode, the 1st respondent followed Ms Ndlovu into the passage and another altercation took place.  As if this was not enough the 1st respondent went to Ms Ndlovu and continued the fight for the third occasion.  Indeed the finding of the arbitrator that the 1st respondent should have been charged with a lesser offence was clearly misplaced.  The 1st respondent embarked on an action of misconduct where she must have appreciated that she was acting wrongfully and yet persisted with such actions with reckless indifference as to what the results or consequences may be.  Such actions were embarked on despite the fact that the 1st respondent had been warned by the CEO when she first insulted Ms Ndlovu.  The CEO had also been part of members of staff who came in to stop the initial fight between the two.  Was the appellant wrong in dismissing the 1st respondent in the circumstances?  Was the discretion that was exercised by the appellant improperly done?  In ZB Financial Holdings v Maureen Manyarara S 12/13 it was held:

“Even assuming that the respondent was a first offender the court a quo had to take into account the fact that the employer considered the misconduct as one that was so serious as to go to the root of the contract of employment.

The court clearly did not apply its mind to the fact that it was dealing with a case of an exercise of discretion by an employer and that it could not interfer with the decision to dismiss without a finding of misdirection on the part of the employer.  The reliance on the fact of the respondent being a first offender to set aside the dismissal in the absence of a finding of misdirection on the part of the employer was improper.”

It is my view that the decision of the arbitrator in the circumstances was erroneous as there was no evidence of a misdirection on the part of the employer in imposing the penalty of dismissal on the 1st respondent.

In conclusion, and for the afore-stated reasons, the court is of the firm view that the arbitrator’s decision was not consistent with the evidence that was adduced in the disciplinary committee hearing.  As a result, the decision cannot be allowed to stand.  The appeal ought to be allowed.

The court makes the following order:

The appeal, being with merit, is allowed.

The arbitral award of Honourable Segula be and is hereby set aside.

The decision of the disciplinary committee finding the 1st respondent guilty resulting in her dismissal be and is hereby upheld.

Each party to meet its own costs.

Gill, Godloton & Gerrans, appellant’s legal practitioners