Meikels Hotel v Willard Chinembiri

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/273/2014
HARARE, 1 APRIL 2014
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/273/2014

HARARE, 1 APRIL 2014 &				  CASE NO LC/H/454/2011

9 MAY 2014

In the matter between:

MEIKELS HOTEL							APPELLANT

Versus

WILLARD CHINEMBIRI						RESPONDENT

Before The Honourable B T Chivizhe   :  Judge

For the Appellant       S Sadomba      (Legal Practitioner)

For the Respondent    P Mabundu     (Legal Practitioner)

CHIVIZHE J:

The appeal arises out of an arbitral award handed down on 14 November 2011.

The background facts are as follows:

The Respondent was employed by the Appellant as a Waiter. The Appellant levelled charges of theft or fraud. The allegations were that the Respondent had stolen from a guest in circumstances where the guest had left her bag behind in the breakfast room where the Respondent had been working. The Respondent was alleged to have taken the bag onto his clearing tray and attempted to cover it with serviettes.

The Respondent is alleged to have deposited the bag back to where he had taken it. The bag was returned to the guest. The guest then returned after a few hours complaining that the sum of $200-00 which had been in the bag was missing. The Respondent was found guilty of the charge and consequently a penalty of dismissal was imposed. The matter went for conciliation and ultimately arbitration.

The Arbitrator in his award came to the conclusion that the Appellant had un-procedurally and unfairly dismissed the Respondent. He therefore ordered the Appellant to reinstate the Respondent to his original position without loss of salary and benefits with effect from the date of suspension. The Arbitrator also granted leave to the Appellant to, upon reinstating the Respondent, conduct fresh hearing in a procedurally correct manner. The Appellant was dissatisfied with the award and noted the present appeal.

The appeal has been noted on the following grounds:

Notwithstanding that the Learned Arbitrator spelt out that “my terms of reference are to determine whether or not the Respondent unfairly dismissed the Appellant on substantive grounds”, the learned Arbitrator then departed from his terms of reference and went on to decide the matter on technical grounds.

Having found that the Appeals Authority had decided the matter based on an unauthentic ”record the learned Arbitrator should have either remitted back the matter to the Appeals Authority for a rehearing based on an “authentic “record or should have heard the evidence himself as if he was a court of first instance. The learned Arbitrator misdirected himself in doing neither of the two.

The learned Arbitrator misdirected himself in ordering the reinstatement of the Respondent without considering the merits of the matter. Alternatively, the learned Arbitrator misdirected himself in paying lip service to the merits of the matter.

Through its heads of argument and oral submissions the Appellant raises the point that the Arbitrator in casu clearly erred when he failed to deal with the matter on the basis of his terms of reference. The Appellant’s contention is that the Arbitrator failed to determine the matter on the substantive merits of the matter as required by his terms of reference. He decided the matter on the basis of a technicality. It is the Appellant’s further contention that the Arbitrator having so erred the award clearly ought to be set aside. The court is then at large to either determine the matter on the substantive grounds or remit the matter back to the Arbitrator for him to deal with the matter on the merits.

The Respondent concedes to the point as raised by the Appellant. The Respondent however urged the court to remit the matter back to a different Arbitrator for the matter to be dealt with in the merits. Whilst the Labour Court can and has the power to consider the matter afresh the Respondent however suggests that the matter ought to be remitted back.

I am satisfied after considering the evidence and submissions filed of record that there is a valid basis for setting aside the arbitral award. It is quite clear upon perusal of the record that the Arbitrator did not deal with the matter in terms of his terms of reference. His terms of reference were to determine whether there was substantive fairness in Respondent’s dismissal. This he clearly failed to do. He simply determined the matter on the basis of a technicality and then directed reinstatement of the Respondent. The arbitral award clearly ought to be set aside. Having set aside the arbitral award, the court, on the basis of the Dalny Mine decision has two choices either to proceed to cure the irregularity by proceeding to determine the matter on the merits OR to remit the matter so that the irregularities might be cured in a rehearing before the Arbitrator. I have opted to take the later approach for the reason that I believe this matter would be more appropriately handled before an Arbitrator, as the appeal appears to be raising issues pertaining to the record of proceedings.

It is accordingly ordered as follows:

The appeal be and is hereby allowed.

The arbitral award handed down on 14 November 2011 be and is hereby set aside.

The matter is remitted to the Registrar of Labour to be placed before a different Arbitrator for a hearing on the merits.

The matter ought to be heard within 60 days of this order.

Gill, Godlonton & Gerrans, appellant’s legal practitioners

Mabundu Law Chambers, respondent’s legal practitioners