Cummins Zimbabwe v Simon Nyamhute

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/276/2013
HARARE, 20 JUNE 2013
CASE NO.
JUDGMENT NO.LC/H/276/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/276/2013

HARARE, 20 JUNE 2013			          		CASE NO. LC/H/348/2012

In the matter between

CUMMINS ZIMBABWE			-			Appellant

And

SIMON NYAMHUTE			-			Respondent

Before The Honourable President - B.T. Chivizhe

For Appellant: 	-	MrT. P. Uchena (Legal Practitioner)

Kantor and Immerman

Respondent:		-	Mr S. Nyamhute (In Person)

CHIVIZHE, B.T.:

The Respondent was employed by Appellant as a Store man.  He was suspended on full pay on 24 May, 2011 pending investigations into allegations that he committed various acts of dishonesty.  The allegations were that he acted as an accomplice to theft by assisting an employee of a neighboring company to store stolen goods in Appellant’s premises.  He was arraigned for an internal disciplinary enquiry on 4 November, 2011.

Following his conviction on the charge he appealed internally.  The appeals authority upheld both conviction and penalty on 28 November, 2011.

The Respondent then referred the matter to a Labour Officer for conciliation.  Upon failure to conciliate the Labour Officer then referred the matter to arbitration.  At arbitration the two terms of reference were;

Whether or not the Arbitrator has jurisdiction over the matter.

Whether or not the claimant was unfairly dismissed and the remedy thereof.

The Arbitrator found that as the first issue of jurisdiction had not been raised in proceedings before the Labour Officer his hands were tied and he consequently dismissed the point.  In regards the second issue the Arbitrator found that as the employer had not conducted proceedings in terms of Code 12 B (2) of the Labour Act the Respondent was unlawfully dismissed.  He then directed that the Respondent be reinstated without loss of salary and benefits with effect from 16 November, 2011, the date of dismissal.

Aggrieved by this determination the appellant lodged an appeal with the Labour Court.  The grounds of appeal are as follows;

Having accepted as a matter of fact that the parties were covered by the NEC for the motor industry, which industry has qualified and duly appointed Designated Agents, the learned Arbitrator erred in law in holding that he had jurisdiction to preside over the matter notwithstanding that the conciliation of the matter by a Labour Officer and the subsequent referral of the matter to the learned Arbitrator was a nullity for breach of Section 63 (3) (b) of the Labour Act.  If the learned Arbitrator had applied his mind to the facts as presented by the parties before him, he ought to have found mero motu and as a matter of law that the purported referral of the matter to him by the Labour Officer was ultra vires section 63 (3) (b) of the Labour Act which rendered the proceedings void ab initio.

Having noted as an uncontested fact that a disciplinary hearing into the misconduct charges leveled against the Respondent was duly convened on 4th November, 2011 resulting in Respondent being found guilty on the facts and dismissed, the Honourable Arbitrator erred in law in holding that there was no compliance by the Appellant with the provisions of section 12B (2) of the Labour Act.

The learned Arbitrator grossly misdirected himself on the facts as to be a misdirection on law when he conveniently ignored the uncontested evidence of witnesses which evidence proved that the Respondent committed a blatant act of theft/dishonest which completely destroyed any trust the Appellant reposed in him as an employee and rendered the Respondent unfit for the job he was employed to perform.

The learned Arbitrator erred in law in failing to appreciate that since it was accepted on the facts, as it was that the Respondent was caught red handed committing  the offence and had no defence to the charge on the merits, the issue of perceived procedural irregularities in the handling of the matter by another employee was insignificant, it being trite law that a person guilty should not escape the consequences of the misdeed simply because of a failure by another employee to carry our disciplinary proceedings but because he is innocent.

The Honourable arbitrator erred in law in ordering reinstatement where the facts of the matter admitted of no other conclusion than a dismissal.

Alternatively and in any event, it was a serious misdirection on law by the learned Arbitrator when he ordered reinstatement without an alternative order for payment of damages in lieu of reinstatement.

The Appellant in his first ground of appeal challenges the finding by the Arbitrator as to whether he had jurisdiction.  The submission was made that there being an employment council in place, NEC for Motor Industry which is registered for the industry with Designated Agents the dispute was not liable for resolution under the Labour Act [Chapter 28:01].  The matter was therefore improperly placed before the Labour Officer and in turn the Arbitrator.  It was Appellant’s further submission that the finding by the Arbitrator that as the jurisdiction issue was never raised before the Labour Officer the Arbitrator was constrained to deal with the issue amounted to a misdirection.

The Respondent’s submission was that after being advised of the termination of his employment he had approached the NEC for the Motor Industry.  He had however been told that he had filed his appeal late.  Thereafter he then approached Labour Officer and filed a complaint of unfair dismissal.  It was his position that the Arbitrator was correct in concluding that as the matter had not been raised before the Labour Officer he could not address it.

It is common cause the Respondent was dismissed from employment with effect from 16 November, 2011.  It is an uncontested position that there is a NEC for the Motor Industry with Designated Agents in place.  Clearly the Respondent was duty bound to exhaust domestic remedies under the Code.  The court cannot accept Appellant’s factual submissions that he did attempt to lodge his appeal with the relevant nec body as these are not supported by any evidence.  The Respondent clearly erred by referring the matter to the Labour Officer without exhausting domestic remedies.  Consequently, the matter was improperly placed before the Labour Officer.  The Labour Officer by proceeding to hear the matter acted in contravention of Section 101 (5) of the Labour Act.  The Arbitrator also misdirected himself when he concluded that he could not address the issue of jurisdiction as it had not been raised before the Labour Officer.  The position is settled at law that a point of law can be raised at any stage of the proceedings [See Muchakata vs Netherburn Mine 1996 (i) ZLR 153 (S)].  The jurisdiction issue being a point of law the Arbitrator ought to have allowed the objection as raised by the Appellant.  He would have then come to the conclusion that the matter was improperly placed before the Labour Officer and dismissed it.  By failing to address the point the Arbitrator clearly erred.  On that basis alone the appeal ought to succeed.  The Arbitrator’s award cannot be allowed to stand.

Having come to this conclusion it will not be necessary for the court to address the rest of the grounds of appeal.

It is accordingly ordered as follows;

The appeal be and is hereby allowed

The Arbitrator’s Award handed down on 9 May, 2012 be and is hereby set aside.

The Respondent’s dismissal is reinstated.