Maxwell M Murawo v Zimbabwe Catering & Hotel Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/179/14
HELD AT HARARE 28TH JANUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/179/14

HELD AT HARARE 28TH JANUARY 2014		CASE NO LC/H/604/10

& 28TH MARCH 2014

In the matter between:-

MAXWELL M MURAWO					Appellant

And

ZIMBABWE CATERING & HOTEL			Respondent

WORKERS UNION

Before The Honourable E Makamure, Judge

For Appellant		Ms R.R. Mutindindi (Legal Practitioner)

For Respondent		Mr P Mabhundu (Legal Practitioner)

MAKAMURE, J:

This is an appeal against an arbitral award which upheld the dismissal of the appellant from the respondent’s employ.  The arbitrator proceeded on the basis of written submissions as agreed to by the parties.

The Learned Arbitrator on the basis of evidence placed before him found that the appellant violated the provisions of section 4 (a) and 4 (b) of the National Employment Code of Conduct Statutory Instrument 15/06 ( S.I.15/06), that is:

any conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment; and

wilful disobedience to a lawful order;

The conduct of the appellant was proved by the evidence which was

placedbefore the Learned Arbitrator.  This had the Learned Arbitrator  conclude that the appellant behaved himself in a manner which exhibited total disregard of the essential conditions of the contract binding the parties.  Such conduct was certainly contrary to the terms of this contract of employment and therefore inconsistent with it. The Learned Arbitrator also found that the appellant failed to submit a certain report as required by his supervisors.  He did not communicate the challenge which caused him not to submit the said report.  Thus the appellant was in wilful disobedience of a lawful order.  Such wilful disobedience goes to the root of the contract of employment as envisaged in Matereke v C.T. Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (S).There is ample evidence on record confirming the findings of the Arbitrator.

The appellant takes issue with being sent on “forced leave”.

Section 6 (1) of S.I. 15/06 provides as follows:

“(1)	Where an employer has good cause to believe that an employee has committed a misconduct mentioned in section 4, the employer may suspend such employee with or without pay and benefits and shall forthwith serve the employee with a letter of suspension with reasons and grounds of suspension.”(Emphasis added).

What this means is that once an employer has reason to believe that an

employee has committed a misconduct, the employer has a choice  to either  suspend the said employee or not . This is because the legislation uses the word ‘may’. The employee does not have much of a choice but to comply where and when the employer chooses to put the concerned employee on suspension. If such suspension is interpreted as forced leave  then it is because the employer will simply be enforcing the provisions of S.I.15/06. The employee can therefore not complain for being suspended or being sent on ‘forced leave’.  Such a complaint does not have any merit.

The Arbitrator in his determination stated that the suspension was lawful.  It is therefore incorrect for the appellant to assert in his fourth ground of appeal that the arbitrator made a finding that the suspension was unlawful.

Before the Arbitrator the parties agreed to proceed by way of written submissions. The Arbitrator accordingly proceeded to make their determination.There is no record showing that mitigation was recorded before the Arbitrator proceeded to uphold the earlier decisionarrived at by the respondent’s Disciplinary Committee. The appellant ought to have raised this with the Arbitrator instead of raising it before this Court. I am also of the view that this amounts to a procedural defect which should properly be raised by way of review.

In view of the foregoing I find that there is no merit in all the grounds of appeal.

According it is ordered that the appeal be and is hereby dismissed with costs.

Matsikidze & Mucheche, Appellant’s Legal Practitioners

Mabundu Law Chambers, Respondent’s Legal Practitioners