Consolidated Farming Investment t/a Farm & City Centre v Oscar Mbira

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/331/14
HELD AT HARARE 7TH MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/331/14

HELD AT HARARE 7TH MAY 2014			CASE NO LC/H/1016/13

& 6TH JUNE 2014

In the matter between:-

CONSOLIDATED FARMING INVESTMENT			Appellant

t/a FARM & CITY CENTRE

And

OSCAR MBIRA							Respondent

Before The Honourable L Kudya, Judge

For Appellant		C.N.  Mapfidza (Legal Practitioner)

For Respondent		J Koto (Legal Practitioner)

KUDYA, J:

This is an application against the decision of the arbitrator who set aside the dismissal of the respondent employee on allegations of contravening the respondent Code of Conduct.  In particular it was alleged that the respondent had flouted the appellant’s banking policy of banking branch money daily thus exposing the respondent’s cash to risk as it remained unbanked for periods exceeding 15 day stretches over the period in issue.

Facts of the case are that:

Respondent was in the appellant’s employ since 2006 as a branch manager stationed at Centenary.  On 29 January 2011 when an audit was undertaken by appellant’s buyer it was discovered that his branch was holding onto cash which had not been banked for the 15 days preceding the audit.  Respondent conceded to the fact that indeed money was not banked and for the alleged period but proffered a variety of reasons chief among which were that bank was too far from trading scene, there were no specific instructions that banking was be done daily and the fact that he was using his discretion as to when the branch’s proceeds could be banked.

Appellant indicated that such conduct flew in the face of the appellant’s branch operations manual and resultantly levelled charges against the respondent.  The charges were that he contravened of the appellant’s Code of Conduct it being alleged that his failure to ensure branch daily bankings was inconsistent with his contract of employment.  Consequently he had to be relieved of his duties on that account.  A disciplinary hearing set up by the appellant. It found him guilty on the allegations and dismissed him from employment.  Aggrieved by the dismissal, the respondent unsuccessfully appealed internally until he finally saw himself before the arbitrator.

At arbitration the arbitrator set aside the respondent’s dismissal reinstated him without loss of support and benefits alternatively ordered that he be paid damages in place of reinstatement but also ruled that respondent be warned in view of the allegations which had been levelled against him.  The appellant was aggrieved by the arbitrator’s decision and that led it to file the appeal against the arbitral award, which appeal is the subject of the instant judgment.

The bulk of the facts as set out above are not disputed.  The only triable issue is whether indeed the arbitrator misdirected himself at law thus entitling the appellant to the appeal to a setting aside of the arbitral award and a confirmation of the dismissal penalty which had been meted out by all the lower level tribunals which had held that the respondent was guilty and appellant thus entitled to dismiss the respondent.

The grounds upon which the appeal is based are the following:

Arbitrator erred on point of law to pass a contradictory award in that whilst he found respondent guilty of the infractions he went ahead to give the penalty of a warning.  There was no legal basis to order as such, hence  on that basis the respondent’s dismissal has to be confirmed and the arbitral award to be set aside.

Arbitrator erred on point of law by failing to specify how he had reached his determination

Arbitrator erred on a point of law as he grossly misdirected himself on the facts in particular that he failed to consider that respondent had admitted during the hearing that he had been given instruction to conduct daily baking; respondent did not seek his superiors’ authority to depart from the instruction to bank daily; respondent gave false daily baking figures to head office and failed to consider the aggravating circumstances that warranted a dismissal penalty.  In the circumstance appellant prayed that the arbitrator’s decision be reversed or set aside in its entirety.

In response to the appeal the respondent maintained that all the appeal

grounds were not merited as all the issues raised had been adequately dealt with by the arbitrator.   In the result he prayed that the arbitral award be upheld and that his reinstatement be made to subsist without loss of salary and benefits.

For clarity of record each of the grounds of appeal will be addressed below.  Before dealing with each ground it is worth restating the law as set out in A.G. v Howman1988 (2) ZLR 402 (SC) on when an appellate court can interfere with the decision of a tribunal below it.  Further to that section 98 (10) of the Labour Act is instructive on the fact that appeals against arbitral awards lie only on points of law and as to what a point of law is See Matsuto and Katsande v Carger Ltd SC-47-09.

Ground 1 and 2

A reading of the arbitral award shows that the arbitrator was not satisfied that the respondent had breached the Code of Conduct as alleged by appellant.  Of particular note is his reasoning that whist respondent could have erred not to bank daily he found as a fact that the appellant had not brought before him evidence on what he could conclusively rule that the respondent flouted a standing regulation.

It is note worthy from the arbitrator’s reasoning and from the records of proceedings at the lower tribunals that at no stage did the respondent categorically accept that he was under instruction to bank daily and flouted that instruction.  Even the manual pages which were filed after the heads of arguments were filed in this appeal was never availed at any of the lower hearing stages.  Respondent was not invited to comment on same.

What was clear was that when the proceedings took place at all levels appeared to have conceded that there could have been wisdom in daily banking as opposed to his manner of banking.  On that account, the arbitrator accepted that, if that use of discretion could be faulted by the appellant then all it warranted was just a warning which he went on to state should apply to the respondent.

The variety of reasons for not doing daily banking proferred by the respondent did not in any way demonstrate that respondent admitted that he was instructed to bank daily.  In fact even in oral submissions at the Labour Court hearing the respondent was adamant that for the 3 years prior to date of the allegations his superiors had audited his branch discovered the non-daily banking trend and did not raise issue with same. This created to him the impression that his use of discretion in that respect was acceptable.  Such reasoning can surely not be faulted especially where the record is not clear on when the said daily baking instruction was communicated to the respondent.

The court therefore finds nothing irregular in the arbitrator’s factual finding that there was no evidence to show that respondent flouted the banking regulations but however if the exercise of his discretion in that respect was questionable then all that was needed was to simply warn him to exercise same more prudently in future.  On account of the above reasoning the court finds no fault with the arbitrator’s decision in this respect and consequently these 2 appeal grounds should fail.

Ground 3

A reading of the record of proceeding is replete with reasons why and how the arbitrator arrived at his decisions especially of one reads his analysis.  The only short coming that could be labelled on it is the inelegant setting out of the reasons and analysing but that was done as per the arbitral award.  This ground also lacking in merit should also fail.

Ground 4

On the gross misdirection on facts it is worth noting that nowhere in the record of proceedings did respondent admit to have not complied with the instruction to bank daily. Al he did was that he gave a variety of reasons why he did not bank daily.  Whilst the reasons may sound inconsistent with sound management of banking it does not elevate it to a flouting of standing instructions which were not proven to have been there by the appellant.

In any event a reading of the arbitral award where he ruled on the impropriety of bringing in the fraud allegations which earlier on were not part of the charges gives credence to the fact that no good case was made out by the appellant to show that respondent flouted daily banking procedures. In that respect there was therefore no basis for him to seek to depart from any norm which had not established by appellant.

Further to that, the figures which respondent gave to head office were not styled daily banking figures so it would be stretching things too far to say that there was falsification of daily banking figures when there was no such evidence at all the lower hearings.  In view of arbitrator’s conclusion that respondent did not flout any daily banking procedure it was not misplaced that he was persuaded that dismissal was inappropriate in the case before him.

The cumulative effect of all the aspects raised on the merits do not lead one to conclude that arbitrator grossly misdirected himself on the facts.  As stated earlier on except for the inelegant expression in the ruling the gist of the arbitral award can not be open to attack.

Before concluding, even the issue of notice which the parties submitted in oral submission though not at length it is clear that whilst arbitrator made that observation as regards the procedural niceties of the matter he however went ahead and made findings and concluded the matter on the  merits thus rendering the argument about short notice of little importance.

In the final analysis it is clear that the arbitrator applied his mind to all issues brought before him and ruled on them properly.  The court thus has no reason to fault his award and in the result the appeal fails in its entirety.

IT IS ORDERED THAT

Appeal being devoid of merit in its entirety it be and is hereby dismissed with costs.

Arbitrator’s decision is to stand.

Dzoro & Partners, appellant’s legal practitioners

Koto & Company, respondent’s legal practitioners