Jobert Mudzumwe v Commercial Workers Union of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/802/16
HELD AT HARARE ON 20TH SEPTEMBER, 2016
CASE NO. LC/H/269/16
AND 16 DECEMBER, 2016
JUDGMENT NO. LC/H/802/16
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/802/16

HELD AT HARARE ON 20TH SEPTEMBER, 2016    CASE NO. LC/H/269/16

AND 16 DECEMBER, 2016

In the matter between:-

JOBERT MUDZUMWE							Appellant

AND

COMMERCIAL WORKERS UNION OF ZIMBABWE		Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr E. Ndlovu  (Legal Practitioner)

For Respondent	:	Mr S. Banda   (Legal Practitioner)

MHURI J.

On the 8th of December 2015, Manyangadze J issued a judgment in which the Honourable Judge considered whether or not Appellant’s dismissal from Respondent’s employ by the National Executive was lawful.

In determining this issue, the Judge had to consider whether a disciplinary hearing was conducted before the dismissal was effected. He found nothing amiss with the Respondent’s decision to proceed in terms of the National Code, Statutory Instrument 15/2006.

At 4 page of the cyclostyled judgment, the Judge made this very pertinent finding;

“The record shows that a Disciplinary Committee was formed which conducted the disciplinary hearing that led to Appellant’s dismissal.

Contrary to the Respondent’s assertion that the hearing was aborted and there was no hearing, the record shows that there was such a hearing, on the 25th April 2012.

No objections were raised by Respondent regarding the composition of the Committee or conduct of the hearing.

He participated in the hearing, and was accorded the fundamental right to be heard. There was no prejudice he suffered in the conduct of these proceedings”.

The above finding led to a further finding by the Judge that the arbitrator

erred in setting aside Respondent’s dismissal solely on a procedural point without delving into the merits of the matter.

In the result, the Judge allowed the appeal by Respondent and ordered a remittal for the arbitrator to hear the matter de novo on the merits. The parties were to agree on the terms of reference.

Consequent to Manyangadze J’s order (supra) Arbitrator Gohodzi held a hearing on the 25th April 2016 and issued an award finding Appellant guilty of the act of misconduct and dismissing him from Respondent’s employ.

It is against this award that Appellant noted this appeal. Before the arbitrator, the issue for determination was whether or not Appellant was guilty of the alleged misconduct and the appropriate remedy thereof.

Appellant’s grounds of appeal upon which this appeal is premised are these;-

that the arbitrator grossly erred when he dealt with issues which were never referred to him.

that the arbitrator grossly erred when he failed to appreciate that no disciplinary hearing had been conducted against Appellant.

that the arbitrator misdirected himself in holding that Appellant had been convicted by the magistrate court.

that the arbitrator erred when he failed to appreciate that Appellant had appealed against the magistrate’s conviction and sentence.

Rule 35- of this Court’s Rules Statutory Instrument 59/2006 stipulates the binding nature of the Labour Court’s decisions on the arbitrators. It provides in subrule (2);

“Decisions of the Court shall be binding on all Labour officers, arbitrators, disciplinary authorities and other determining authorities acting in terms of the Act.”

It is not in dispute that Manyangadze J made certain factual findings in respect of the manner Appellant was disciplined and in respect of the disciplinary hearing. I have restated these findings earlier in this judgment.

These findings were not challenged at all by Appellant through an appeal. This judgment is extant and was therefore binding on the arbitrator. It would have therefore been improper for the arbitrator to delve into the issue of whether or not a hearing was held which the Labour Court had already determined. This would be tantamount to reviewing the Labour Court’s findings, which the arbitrator has no powers to do.

As alluded to earlier, Manyangadze J was of the considered view that, the first arbitrator, Pasipanodya had decided the matter on a procedural point without dealing with the merits, that would be going against the principles as stated in the case of

AIR ZIMBABWE (PRIVATE) LIMITED

V

CHIKU MNENSA AND ANOTHER SC 89/04

that a person guilty of misconduct should not escape the consequences of his wrong doing through technicalities. He should escape because he is innocent. How is this achieved, one may ask. Certainly it is through a hearing on the merits. This is precisely what the Judge ordered – a hearing de novo of the matter on the merits.

Even if it were to be accepted that there was no hearing held, this was cured by Manyangadze J’s order which ordered the arbitrator to hear the matter de novo on the merits, which the arbitrator did and came to the conclusion that Appellant indeed was guilty of the act of misconduct as preferred, namely,

“any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract”.

This act of misconduct was premised inter alia on the evidence that he withdrew $2000 from Respondent’s bank to pay Honourable P. Shawatu . This money never got to Mr Shawatu. The arbitrator disbelieved Appellant’s explanation for the payment of the said money and concluded that the money was meant to be a bribe to influence Shawatu in the matter he was handling. This was a corrupt practice not expected of a trade union official, so held the arbitrator.

I find no basis to interfere with the arbitrator’s finding in that regard. The record, does not show that the arbitrator solely relied on the criminal conviction to find Appellant guilty. I am persuaded by Respondent’s Legal Practitioners’ submission that the criminal conviction record was used for its evidentiary value. No record was produced by the Appellant to show the outcome of the appeal. Further an acquittal in a criminal case cannot be a bar to instituting of disciplinary proceedings. It is trite the burden of proof in civil proceedings is lower than that required in criminal proceedings.

The arbitrator cannot in my view be faulted for proceeding with the hearing to its finality. The adage there must finality to litigation was apt.

In his judgment, Manyangadze J stated, at page 5, “The Respondent reverts to his status as dismissed employee, pending determination of the matter on the merits at arbitration.”

As stated earlier, this judgment was not appealed against. The arbitrator was therefore correct in stating in his award that Appellant is dismissed from employment with effect from date of dismissal.

After considering all the grounds of appeal, I am not convinced that the arbitrator erred at all. The appeal is totally devoid of merit.

It is consequently ordered that it be and is hereby dismissed with costs.

Mabundu and Ndlovu	-  Appellant’s Legal Practitioners

J. Mambara & Partners	 - Respondent’s legal practitioners