Lobels Biscuits (Pvt) Ltd v The respondent (name not specified)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/184/16
HELD AT HARARE, 1ST MARCH, 2016
CASE NO. LC/H/1020/14
AND 18th MARCH, 2016
JUDGMENT NO. LC/H/184/16
---------




IN THE LABOUR COURT OF ZIMBABWE  	    JUDGMENT NO. LC/H/184/16

HELD AT HARARE,1ST MARCH, 2016                  CASE NO. LC/H/1020/14

AND 18th MARCH, 2016

In the matter between:-

LOBELS BISCUITS (PVT) LTD.		-		APPELLANT

The respondent was employed by the appellant as a Debtors Clerk. Her duties included amongst others, the collection of payments from debtors. During the year 2012 appellant suspended respondent on allegations of misconduct. She was subsequently  arraigned before a disciplinary authority on 16th January 2013 facing allegations of breach of Sections 4(a) and 4(f) of the National Code i.e. Statutory Instrument 15of 2006. She was subsequently dismissed from employment following her conviction on the charges. Respondent noted an appeal against the determination. The Appeals Authority handed down a decision dismissing the respondent’s appeal.

After her dismissal respondent referred a complaint to a Labour Officer for conciliation. The matter was subsequently referred to compulsory arbitration. The terms of reference before the Arbitrator were to determine;

Whether or not the claimant was unfairly dismissed

If there is a positive answer to 1, what is the appropriate remedy

Whether the claimant acted as a Depot Manager

The Arbitrator found that the respondent dismissal had been tainted with procedural unfairness. In regard relief his view was that whereas the general rule is that where procedural defects are found they can be cured by either a remittal of the matter to the a hearing a quo or by the tribunal itself conducting a de novo hearing the case was one where the general rule would not apply. The reason was that the relationship between the parties had deteriorated to levels where a re-hearing would be impossible. The Arbitrator further found that reinstatement could not be ordered in the circumstances where the relationship between the parties had broken down. He relied on Girjac Services vs Mudzingwa 1999 (2) ZLR 243 (S) at 250 A – B. The Arbitrator deemed that an award of payment of damages was more appropriate. On this basis the Arbitrator granted an award in the following terms;

4. The Award

I award as follows:

4.1.	That the claimant was unfairly dismissed.

4.2. 	That reinstatement is not an appropriated remedy in this case and is hereby not ordered.

4.3.	That as a remedy for unfair dismissal, the respondent be and is hereby ordered to pay damages to the claimant, the quantum of which is to be agreed between the parties.

4.4.	If the parties fail to reach agreement to the quantum of damages, either party may apply to this arbitral tribunal for quantification.

4.5.	Each party to pay 50% of the arbitration costs.

Aggrieved the appellant noted the present appeal. The appeal was initially noted on the basis of five grounds. At the hearing of the matter appellant’s counsel abandoned the first three grounds. The appeal is therefore based on the last two grounds which essentially read as follows;

“4.	The Arbitrator erred at law in finding that the re-hearing of the matter was impossible under Statutory Instrument 15 of 2006. The Arbitrator’s finding in this respect is so unreasonable such that no reasonable person properly applying his mind would have arrived at such a decision.

5.	The Arbitrator erred at law in ordering payment of damages, being the alternative to re-instatement of the respondent purely on the basis of procedural irregularities. At the very least, the Arbitrator ought to have heard the matter himself or appointed a hearing officer.”

The appeal is opposed by the respondent. The respondent’s submissions on the aspect of the relief granted by the Arbitrator is that the relief was proper in the circumstances. The Arbitrator correctly concluded that the case could not be reheard. This is especially so in view of the unclear charge levelled against the respondent. The respondent further submitted that the relief granted by the Arbitrator was a competent relief as provided under Section 98(1) of the Labour Act [Cap 28;01]. The respondent prayed that the appeal be dismissed for lack of merit.

There are three issues for determination before this Court. The first is whether it was proper for the Arbitrator to dispense with a re-hearing in the matter. The second is whether it was competent for the Arbitrator to have granted the relief of payment of damages in the circumstances. The third is the remedy that this Court ought to therefore grant.

It is a trite position at law that where a court/tribunal finds that there are procedural irregularities and these are fatal to the disciplinary proceedings the court/tribunal has two options. In the celebrated case of Dalny Mine vs Banda 1999 (1) ZLR 220 (S) aptly referred to by appellant the Court must, in order to have these irregularities corrected, direct that they be corrected by one of two ways either.

A remittal of the matter for a hearing de novo and in a procedurally correct manner; or

Where there is sufficient evidence in the record the court/tribunal should proceed to hear the evidence de novo.

The Arbitrator, in casu, having found that the disciplinary proceedings were marred by procedural irregularities was therefore obliged to either remit the matter or conduct a de novo hearing. The Arbitrator in his award decided against a remittal on the basis that the circumstances of the case did not permit that procedure and therefore the case was an

exception to the general rule. His basis for so finding was that the relationship between the parties was so poisoned as to make a re-hearing impossible especially as all the key officials had already been involved.

The Arbitrator clearly erred at law in arriving at this conclusion. The Arbitrator did not in his award indicate why he believed that the relationship between the parties had deteriorated to levels which would make a re-hearing impossible. He simply submitted that the relationship is poisoned and there is evident animosity but did not indicate his basis for the conclusion reached. It is also clear that no evidence of breakdown of the relationship was led before him to enable him to reach that conclusion. He also clearly did not seek the parties input or if he did their views were not reflected in his award. The Arbitrator also failed to clearly outline in what way the key officials were involved that would make a re-hearing impossible. Which key officers he was referring to is also not clear. If indeed the option of a remittal was impossible the Arbitrator himself could have taken option (b) which is to conduct the hearing de novo himself. The Arbitrator however did not address that point. He did not explain why he could not have in the circumstances taken option (b) which is to conduct a de novo hearing himself. The Arbitrator’s findings on this point are clearly so unreasonable that no person applying his mind would have arrived at such a decision.

The Arbitrator also grossly erred at law by directing payment of damages in lieu of reinstatement. The Arbitrator made a finding that there was procedural unfairness. He clearly had not in his award addressed the merits of the matter. Clearly therefore the directive to pay damages in lieu of reinstatement would not be proper. It would imply that the Respondent was innocent of charges and that she was unlawfully terminated when clearly the issue was not addressed in his determination neither was there in the record any evidence or submission made to support such a conclusion. For this reason the directive was clearly wrong. It simply cannot be allowed to stand.

In regards the relief that ought to be granted the Appellant submission was that having conceded to the fact that there were procedural irregularities in the hearing the matter would best be referred to a neutral and independent arbiter such as another Arbitrator for the matter to be determined on merits. The Respondent submission on the point was that a remittal was not the appropriate relief. There was no basis for a remittal as the charges were basically non-

existent from the beginning. The Arbitrator had also in his award reached the conclusion that Respondent was unfairly dismissed. He had therefore directed damages in lieu of reinstatement on the basis that reinstatement was practically impossible in the circumstances.

It is clear that in reaching his conclusion the Arbitrator found the Respondent had unfairly dismissed on the basis of procedural unfairness. The Arbitrator clearly had not addressed the substantive issues. It was improper for him to have even considered reinstatement ion the circumstances. It was improper to have directed payment of damages. The claim by the Respondent that the charges were non-existent is not supported by the record. The record shows that on the basis of the allegations charges of contravening Section 4 (a) and 8 of Statutory Instrument 15/2006 were levelled against Respondent. On the basis of Air Zimbabwe (Private) Limited vs Chiku Mensa and Other SC 81 the Respondent cannot be allowed to escape purely on the basis of procedural irregularities. She must escape only because she is innocent of the charges. In the circumstances a remittal is the only appropriate course to follow.

In the circumstances it is hereby ordered as follow;

The appeal succeeds with costs.

The arbitral award is hereby set aside and substituted with the following

“(a) 	That the claimant was unfairly dismissed by reason of procedural unfairness in the disciplinary proceedings.

(b) 	The disciplinary proceedings convened by the Respondent are accordingly set aside.

(c) 	That as a remedy the matter is hereby remitted to the Registrar of Labour for reallocation to another Arbitrator for a hearing de novo

(d) 	Such hearing shall be convened within 60 days of the date of this order.

Dube, Manikai and Hwacha – Appellant’s legal practitioners

Masinire & Chawabva – Respondent’s legal practitioners