Faithful Masimba v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/642/2013
HARARE, 14 & 22 NOVEMBER 2013
CASE NO. LC/H/642/2013
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/642/2013

HARARE,  14 & 22  NOVEMBER 	2013		                    CASE NO.  LC/H/617/13

In the matter between:-

FAITHFUL MASIMBA						Appellant

And

CITY OF HARARE							Respondent

Before The Honourable F.C. Maxwell,  Judge

For Appellant			Mr F. Chiwashira (Legal Practitioner)

For Respondents			Mrs R.P. Chimhenga (Principal Legal Officer)

MAXWELL J:-

On 16 August 2013 Appellant appealed against a decision of Honourable P. Mutsinze which upheld her dismissal.  The grounds of appeal were as follows:-

The Honourable Arbitrator misdirected herself in coming to the conclusion that the award issued by Honourable C. Mesikano only addressed the issue of unlawful suspension and not the merits of the case.

The Honourable Arbitrator erred in ruling that the reinstitution of disciplinary proceedings (Stc) by the Respondent was lawful.

The honourable Arbitrator erred in making a finding that the hearing proceedings held by the Respondent were not defective at law.

The Honourable Arbitrator misdirected herself in holding that technicalities should not be the deciding favours in labour matters.

The honourable Arbitrator erred in coming to the conclusion that the disciplinary proceedings were procedural and that the determination to dismiss the Appellant was substantively fair.

The Honourable Arbitrator erred in ruling that the Appellant had no reasonable ground to absent herself from duty without complying with leave formalities.

Appellant prayed for the setting aside of the Arbitrator’s decision, reinstatement without loss of salary and full benefits as well as costs of suite at any attorney – client scale.

In response, Respondent supported the Arbitrator’s decision in relation to grounds of appeal 1 – 5.  In relation to ground of appeal 6 Respondent pointed out that no point of law is raised and therefore it should be dismissed on that basis.

Background

It is important to give a background to the decision appealed against. Appellant had been employed by the Respondent at the Budiriro Polyclinic.  She absented herself from duty without lawful excuse from 19 August 2008 to 23 February 2009.  When she reported for duty she was suspended.  She referred the matter of unlawful suspension to the Employment Council for the Harare Municipal Undertaking.  The parties failed to settle at conciliation and the matter was referred to arbitration.

The arbitration award by C. Mesikano gives the issue in Dispute and Terms of Reference as “the alleged unlawful and unfair suspension of the employee Faithful Masimba by the employer, City of Harare (Health Department) (whether or not employee was procedurally and fairly suspended and (2) determine remedy) as issued terms of reference”.

The Arbitrator ruled that the Appellant had been unlawfully suspended and that the Respondent was to reinstate her with full salaries and benefits.  If reinstatement is untenable, the employee was to be paid all due outstanding back pay from date of suspension, all other outstanding contractual obligations, all outstanding leave pay

plus damages Respondent reinstated the Appellant with full salaries and benefits with effect from 1 August 2008.

The Respondent then reinstituted disciplinary proceedings against the appellant.  Appellant was found guilty of absenteeism and was subsequently dismissed from employment.  Appellant challenged her dismissal at conciliation and when the parties failed to settle, the matter was referred to arbitration.  The Arbitrator upheld the dismissal of the Appellant who subsequently appealed to this Court.

Five issues from the grounds of appeal are key in determining this matter.

Whether the defence of res judicata is available to the Appellant

Appellant seemed to be suggesting that the decision by C. Mesikano disposed of the matter totally.  She submitted that the reinstitution of disciplinary proceedings were therefore defective at law.  That view cannot be sustained in view of the fact that the award by C. Mesikano clearly and unambiguously dealt with the issue of suspension only.  Even in the Appellant’s Heads of Argument, the following statement appears in the second paragraph under Ad Ground of Appeal 1 – page 2.

“The Arbitration related to the unlawful and unfair suspension of the Appellant and to decide whether or not Appellant was procedurally and fairly suspended”. (underlining for emphasis)

It is surprising how the Appellant then proceeds to say under Ad Grounds of Appeal 2 and 3 on page 3 of the Heads of Argument.

“The same case with the facts was decided on by the Honourable Arbitrator”.

It is trite that in order for res judicata to succeed, it must be established that the judgment given in the prior action concerned

the same subject matter

was founded on the same grounds, or

was between the same parties.

See Madondo v Fyfe and Others 1988 (1) ZLR 138

The decision by C. Mesikano did not go into the merits of the matter.  It did not deal with the issue of absenteeism that Appellant was charged of.  Once the suspension of the Appellant had been nullified it was proper for the Respondent to deal with the disciplinary issue without re-suspending her.

See Standard Chartered Bank v Matsika 1996 (1) ZRL 123.

The defence of res judicata is therefore not available in this case.

Whether the matter was dealt with out of time.

Appellant submitted that the hearing into the matter was held way out of time rendering the process improper and subject to abuse (page 3 under Ad Grounds of Appeal 2 and 3 of Heads of Argument).  At the hearing counsel for Appellant made submissions referring to “years later”, “long dead instances of misconduct” and the fact that the arbitrator never addressed the issue of the long period in which the Respondent could have ached but did not do so.  He further submitted that a period of more than 3 years had lapsed, from 2008 to 2012 when the disciplinary proceedings were reinstituted.  He concludes that the Respondent had waived the right to discipline the Appellant. The submissions by Appellant’s Counsel ignore the fact that the initial arbitration proceedings challenging the suspension were instituted before the expiry of two years.  Those proceedings resulted in the reinstatement of the Appellant.  Respondent submitted that Appellant was reinstated in September 2010 and the disciplinary proceedings were reinstituted in September 2011.  Respondent further submitted that Appellant was not prejudiced in any way as she was not on suspension and continued to receive her salary.  There was nothing to preclude the reinstitution of the disciplinary proceedings once the Appellant had been reinstated.  Appellant has not established any prejudice that was caused her by the delay.

See Zimbabwe Newspapers (1980) Ltd v Ndlovu 2000 (1) ZLR 127.

A person should escape the consequences of his actions only because there has been an enquiry into the merits of his conduct and he has been found innocent.

See Air Zimbabwe (Pvt) Ltd v Chiku Mnensa and Another SC 89/04.

Whether the Arbitrator erred in holding that technicalities should not be the deciding factors in labour matters.

There is a plethora of case authority that supports the arbitrator’s finding.  It is surprising that a legal practitioner would actually question a position that has been so clearly set out in case authority.  Only technicalities that result in prejudice to party will vitiate proceedings.

See Tichaona Nyahuma v Barclays Bank (Pvt) Ltd SC 67/05.

Dalny Mine v Musa Banda 1999 (1) ZLR 220.

Air Zimbabwe (Pvt) Ltd v Chiku Mnensa and Another (supra).

The Arbitrator’s finding cannot be faulted and that ground of appeal fails.

Whether the disciplinary proceedings were procedural and the determination    to dismiss the Appellant substantively fair

As stated above there was nothing irregular in reinstituting proceedings once Appellant had been reinstated.  As far as the penalty of dismissal is concerned, the Supreme Court has held that an act of misconduct that goes to the root of the employment contract warrants a penalty of dismissal unless there is gross misdirection.

See Mashonaland Turf Club v Mutangadura SC 5/12.

Standard Chartered Bank v Chapuka SC 125/04.

Being absent from work without leave and without lawful excuse goes to the root of the employment contract.  The Appellant’s dismissal was therefore substantively fair.

Whether the Arbitrator erred in ruling that the Appellant had no reasonable ground to absent herself from duty without complying with leave formalities.

Respondent submitted that the Arbitrator made a factual finding on this point.  I agree.  Since appeals to this Court are on questions of law only this issue is not properly before this Court.

The appeal is accordingly dismissed.

There is no order as to costs.

Pundu & Company – Appellant’s Legal Practitioners