Freedom Shumba & Anor v Delta Beverages

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/419/13
HARARE ON 16TH MAY, 2013
CASE NO. LC/H/242/11
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/419/13

HARARE ON 16TH MAY, 2013	                          CASE NO. LC/H/242/11

In the matter between

FREEDOM SHUMBA	& ANOR			–	1st Appellant

KUDZANAYI MHENDE				–	2nd Appellant

AND

DELTA BEVERAGES					-	Respondent

Before The Honourable B.T. Chivizhe, Judge.

Appellants: 		In person

For Respondent: 	Mr K. Ncube (Legal Practitioner)

CHIVIZHE, B.T. J.

The matter was placed before me as an appeal against an arbitral award handed down on 27 April 2011.

The brief circumstances of the case are as follows:-

The two Appellants who were both employed by the Respondent as Salesman and Truck Assistant (respectively).  They were dispatched on from DBC Marondera to Wedza route with a particular truck. The stock controller W. Chikosi:- made an error when the truck departed and endorsed 200 crates of king size instead of 250 crates. When the Appellant got to Mutengwa Wholesale in Wedza upon realization that they had in excess of 50 crates then sold the 50 crates and converted the proceeds thereof to their own use. It was Respondent’s allegation Anna Tachineyi had issued an invoice against the sale.

The two Appellants were arraigned before a disciplinary authority set up under the Code facing charge of fraud and/or theft based on the loss control report statement as well as the invoice produced by Pamelah Anna Tachireyi showing that the Appellants had received a sum of US$740.00. The Appellants were both found guilty. The first Appellant was served with determination on 31st December, 2010 whilst the second Appellant was also served on the same date. Both Appellants were consequently dismissed from employment with effect from 31st December 2010. Under the Code the Appellant had a right of appeal to the Head of Department level within 4 working days of receipt of the determination.

The Head of Department appeal hearing for 1st Appellant was held on 18 January 2011 whilst the one for 2nd Appellant was held on the 4th February, 2011 Both Appellant’s referred a complainant to Labour Officer in terms of section 101 (6). The Works Council proceedings in respect of 2nd Appellant were consequently suspended on 4 February, 2011 pending the resolution of the matter that had been referred to Ministry of Labour. The 2nd Appellant was however advised that he would remain dismissed pending finalization of the matter.

The Labour Officer having failed to conciliate the matter referred it to compulsory arbitration. The terms of reference on the issues to be arbitrated  were;-

Whether the Labour Officer had jurisdiction

to conduct the dispute

Whether the dismissal was both procedurally

and substantively fair.

In his award handed down on 27 April 2011 the Arbitrator concluded that the Respondent had not flouted the provisions of the Code in respect of 30 days required to complete the disciplinary process. The Arbitrator also accepted Respondent’s submission that the period of reckoning had been frozen and that the matter had eventually been completed within the prescribed 30 days. According to him the Appellant should have thereafter exercised their right of appeal under the provisions of the code instead of referring matter to the Labour Officer. Consistent with his reasoning the Arbitrator then issued an award in the following terms;-

5.1 The Labour Officer had no jurisdiction to

entertain the matter as proceedings were

concluded within the prescribed period.

5.2 There will be no order as to the costs.

Dissatisfied with the award, the Appellant noted an appeal with the Labour Court. The appeal has been noted on the following grounds;-

The Arbitrator erred in determining that the matter was concluded within the set time frame of 30 days.  The Arbitrator grossly misdirected himself by ousting the jurisdiction of the Labour Officer.

The Arbitrator erred in upholding the provisions erred in upholding the provisions of the Respondent’s ambiguous Code of Conduct (on clause 11.6e)  The Respondent’s Code of Conduct clearly overrides the provisions of the principal legislation where the Labour Officer derived his jurisdiction.

The Arbitrator erred in accepting the Respondent’s submission that time was frozen and that the matter was completed within the prescribed period of 30 days, even up to the appeal stage.  The Arbitrator clearly misdirected himself at law and was biased when he was persuaded by the Respondent’s submission.  The Respondent clearly and inadvertently confused the date of notification with the initial date of hearing.

The Arbitrator erred at law by validating an extension beyond 30 days period on unreasonable grounds.

The Arbitrator’s award is grossly unreasonable on point 4.7 as the award “purports”to suggest that the Appellant was supposed to have exercised his right of appeal in terms of clause 11.7(c) of the Delta Beverages Employment Code of Conduct when no such determination “in writing” was served by the Works Council on the Appellants.

The Arbitrator erred by ignoring to entertain the merits of this matter.

The Respondent has raised a point in limine that the grounds of appeal do not disclose points of law and on that basis the appeal should fail. The Respondent has relied for this contention on Musasa & Anor vs Cagar (Pvt) Ltd 2009 (2) ZLR 327; Sable Chemical Industries Union vs Easterbrooke 2010 (1) ZLR 342; Hana vs National Railways of Zimbabwe 1996 (1) ZLR 6645); Muzuva vs United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S).

Based on the authorities referred to by the Respondent above it is clear that the Appellant’s first four grounds of appeal do not raise points of law as required under Section 98 (10) of the Labour Act [Chapter 28:01]. In grounds of appeal No. 5 however the Appellant allege that the findings on the facts by the Arbitration were unreasonable. Findings of fact that are grossly unreasonable that no sensible person applying his mind to the facts would arrive at such a decision amount to a misdirection in law. See Reserve Bank of Zimbabwe vs Granger & Anor sc 34/2001.

The Appellants point is that the Arbitrator grossly misdirected himself on the facts in coming to the conclusion that the Respondent had concluded the proceedings and in time when in fact the Respondent had not concluded the appeal proceedings before the Works Council.  Both Appellants’ contention that Respondent had actually suspended it’s proceedings pending the determination of the matter before the Ministry of Labour. The Appellants could not therefore exercise their right of appeal to Labour Court under the code because the Works Council had not provided written determination as per clause 11.7(c) of the code.

It is clear from a perusal of the record that the Respondent’s Works Council did sit to hear 2nd Appellant’s appeal on 4 February 2011.  The Works Council however did not proceed to hear the appeal. In their ruling handed down the same day the Works Council through the Chairperson indicated that; “As per your submission and refusal to carry on with the Works Council proceedings we are therefore suspending the proceedings at this level until we hear from the Ministry of Labour in the meantime you remain dismissed from the employee of Delta Beverages”.

Clearly therefore at the time of hearing the matter before the Arbitrator the Works Council had not handed down a determination on the appeal by 2nd Appellant. This was clearly in violation of section 11.1 of the code which provides that all disciplinary or appeal proceedings should be completed within thirty (30) days from date of notification to attend hearing.

The situation is however different with regard 1st Appellant. The 1st Appellant submits that the Works Council did not sit down to hear the appeal hence there is no record of proceedings. There was also no determination given by the body hence the Respondent did not complete disciplinary processes within the 30 working days. The 1st Appellant has challenged the Respondent to produce the determination.

The Respondent on the other hand contends that the Works Council sat to determine 1st Appellant appeal and handed down its determination on the 9th of February 2011. The record of proceedings and the determination however did not form part of the record.  The Respondent counsel however submitted the minutes of hearing on the 20th September, 2013.

Appellant In Person

Gill, Godlonton & Gerrans, - Respondent’s Legal Practitioners