Followme Toronga AND 3 Others VS CITY OF Harare

### Preamble
IN THE LABOUR OF ZIMBABWE
JUDGMENT NO. LC/H/697/13
HELD AT HARARE ON 20TH MARCH 2013
CASE NO. LC/H/484/12
and 17th JANUARY, 2014
JUDGMENT NO. LC/H/697/13
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IN THE LABOUR OF ZIMBABWE			JUDGMENT NO. LC/H/697/13

HELD AT HARARE ON 20TH MARCH 2013        		CASE NO. LC/H/484/12

and 17th JANUARY, 2014

In the matter between:-

FOLLOWME TORONGA AND 3 OTHERS

vs

CITY OF HARARE

Before The Honourable B.T. Chivizhe:  Judge

For Appellant  - Mr  V. Mazhetese	(Legal Practitioner)

For Respondent - Mr  W.  Gandanzara	(Chief Legal Officer)

CHIVIZHE J.

The matter was placed before me as an appeal against an arbitral award handed down on 13th June 2012.

The material background facts to the matter are as follows:

The Appellants are former employees of the Respondent.  They were employed in the Public Safety Department. The Appellants absented themselves from duty for varying periods from  January 2008.  In February 2009 they reported for duty.  The Respondent’s Human  Resources Director  then  issued  a memorandum dated  23rd February 2009 to all Heads of Departments not to allow the employees to resume work.  On the basis of the memorandum which also served as a suspension letter the Respondent arraigned the Appellants before Disciplinary Committee for hearings.  The Appellants challenged their appearance before the  Disciplinary Committee  on the basis that they had not been  lawfully suspended in terms of the relevant Code of Conduct.  The matter was later referred to an Arbitrator the Honourable Bvumbe who determined that the suspension was unlawful.

Following on the arbitral award the Appellant’s suspension was uplifted and Appellants were paid all outstanding salaries/benefits. The Appellants were then notified to appear for fresh disciplinary hearing on the 15th June, 2010.  On receipt of the notices the Appellants then filed an urgent chamber application with the Labour Court seeking an interdict to stop the Respondent from instituting disciplinary action against them.

The Labour Court dismissed the urgent chamber application on the basis of lack of

Jurisdiction to grant the interdict sought.  The Appellants were then arraigned before different

disciplinary committees.  At the hearings the Appellants raised a point  in limine that the

Arbitrator Hon.Bvumbe  had only ordered reinstatement and nothing else.  The matter was

consequently res judicata.  The Disciplinary Committees dismissed the point in limine.  The

Appellants had thereafter individually walked out of the hearing.  The Disciplinary

Committees proceeded with hearings in the absence of the Appellants. The Appellants were

found guilty and consequently dismissed from employment.

The Appellants were aggrieved and referred the matter to a Labour Officer and

consequently to  compulsory arbitration.  The terms of reference for the Arbitrator were ‘to

determine whether or not F. Toronga & 3 Others were  unfairly dismissed.  If so, the

remedy.’  The Arbitrator  in his conclusions  ruled that Appellants’ dismissal was

substantially fair. The Appellants still aggrieved then noted the present appeal with the

Labour Court.

The appeal has been noted on the following grounds;

The Honourable Arbitrator misdirected himself by failing to appreciate that the correctness of the disciplinary hearing minutes was an important matter which required justification at law and failure to verify the correctness of the minutes amounted to a misdirection which needed correct redress by the Arbitrator.

The Honourable Arbitrator grossly erred in concluding that the disciplinary hearings were conducted properly and were not tainted with fatal procedural irregularities despite the overwhelming evidence submitted to him which clearly revealed that the disciplinary hearings were tainted with fatal procedural irregularities which could not be condoned. This was a gross error on the facts and therefore qualifying to be an error on a point of law.

The Honourable Arbitrator misdirected himself by condoning the dismissal of the Appellants using a repealed Statutory Instrument. The Labour Act [Chapter 28:01] prescribes disputes after a period of two (2) years and the offence was committed in 2008 – 2009 only for the Appellants to be dismissed after 2 years and using a repealed Statutory Instrument.

The first ground of appeal attacks the Arbitrator’s  finding on the basis that he failed

to appreciate the need for a correct record of the disciplinary minutes and that the consequent

failure on the Arbitrator’s part to verify the correctness of the minutes amounted to a

misdirection.  The Arbitrator in his award made the following observation in regards the

issue.

“The complaints of the minutes of the hearings not being availed to them and the correctness of those minutes is not a misdirection to justify interference by the Arbitrator”.

In reaching the conclusion the Arbitrator had considered submissions by both parties.

Appellants submissions before the that the disciplinary hearing minutes were tempered with.

They pointed  to particular incidences such as;

the  exclusion  of material fact  that one Honest Nyahuma  had been legally

represented for the hearing but this was not included in minutes.

the fact that the hearing was on 24th March 2011 but the committee members had

purportedly signed the dismissal penalty in ‘2009’ and ‘2010’.

the fact that the employee had requested recusal of chairperson Mrs Mverechena

on  the basis of her prior involvement in the matter but this was not recorded in

the Minutes.

in another hearing the  minutes had purportedly left out a point raised in

proceedings that there was no quorum  as only two members instead of three

were present as provided  under the Code.

The Respondent’s submission before the Arbitrator was that the minutes correctly reflected what had transpired before the different Disciplinary Committees.  The Appellants had raised points in limine which were correctly recorded in the minutes.  The minutes were then endorsed on each and every page by signatures of the union representatives.  The Respondent addressed  the specific purported omissions in the  minutes such as the exclusion of the legal practitioner details and the apparent error in the dates. The Respondent explained that the minutes could not have been signed in 2009 and 2010, the hearings having taken place in March 2011.  Respondent’s counsel also explained why the legal practitioner details were excluded from the particular minutes.

I am satisfied upon perusal of the record of proceedings that the Arbitrator was correct in concluding that the proceedings were not tainted with fatal procedural irregularities.  The issue of the omissions in minutes and the error in dates were satisfactorily explained by the Respondent.  On the aspect of the quorum, whilst the submission was made by the Appellants that there had been no quorum in one hearing the Appellants did not provide sufficient details as to which committee members were present in that particular hearing, were they management or union representation.  The Respondent in any event raised a defence that under the Code the Chairperson chosen by employer is a member of the Disciplinary Committee.  The Appellant before the Arbitrator failed to respond to the submission by the Respondent on the point.  Even before the Labour Court failed to address the point with sufficient clarity to show how they stood to be prejudiced.  In my considered view the Arbitrator reached the correct   conclusion in regards the technical arguments raised.

The second ground of appeal equally stands to be dismissed. It is trite that in order

for a procedural irregularity to vitiate proceedings the party raising it has to establish

prejudice  (as per Tichawona Nyahuma vs Barclays  Bank  SC 67/05).  No such prejudice

was alleged or established before the  Arbitrator.   The Arbitrator clearly did not  err in

reaching his conclusion.

The last ground of appeal is based on the charge which,  according to  Appellants, was

based on a repealed Statutory Instrument.   The Appellants were charged  with contravening

Clause 1.1  of Para IV  of  the Collective Bargaining Agreement:  Municipal

Undertaking  (Code of  Conduct and Grievance Handling  Procedure)  Statutory

Instrument 17 of 2007.  The allegations were  that  they  failed to  report for duty  without

leave or reasonable cause in 2008.   The second part of  the ground is that  the offence  was

committed in  2008-2009, and by virtue of provisions in Labour Act [Cap 28:01] disputes

prescribed after a period of two years.  The Appellants submission therefore is that they were

therefore convicted of misconduct  after the dispute had prescribed.

The Respondent in counter-argument submitted that the Arbitrator did not misdirect

himself as the matter had not prescribed in terms of Section 94 of the Labour Act [Cap

28:01]. It was also Respondent’s submission that it was permissible for the Respondent to have proceed with the matter based on the repealed statute provided the dispute arose during the tenure of the repealed statute.

The last ground of appeal also clearly stands to be dismissed. Firstly I concur with Respondent submissions that the employer was at law entitled to charge the employee under the repealed Statutory Instrument as the misconduct took place during the tenure of the repealed statute. Secondly the fact that the matter was then heard years later in 2011 is in my view  immaterial. The matter was continuing from 2009 when the alleged misconduct took place.

In the circumstances the appeal is dismissed with no order as to costs.

J. Mambara  & Partners, Appellant’s Legal Practitioners