Miles Transport v Douglas C. Sunda

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MS/21/2013
HELD AT HARARE ON 13 NOVEMBER, 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      	JUDGMENT NO. LC/MS/21/2013

HELD AT HARARE ON 13 NOVEMBER, 2013	   	CASE NO. LC/MS/47/2011

AND 6 DECEMBER, 2013

In the matter between:-

MILES TRANSPORT					-	Appellant

And

DOUGLAS C. SUNDA					-	Respondent

Before The Honourable B.T Chivizhe: Judge

For Appellant 	-	Mr J. Maweni (Legal Practitioner)

For Respondent 	-	Mr J. Ruvengo (Legal Practitioner)

CHIVIZHE, J.

The appeal was noted against an arbitral award handed down on 20 September 2011.

The background facts are as follows;

The Respondent was employed by the Appellant as a Truck Driver.  He was engaged from the 25 August 2010 to the 28th October 2010.  It is not clear from the record the status of his employment contract.  The Appellant submits he was on probation contract a point disputed by the Respondent.  The Respondent submitted he was on an (oral) contract without limit of time.

The Appellant terminated the Respondent’s contract of employment on 28 October 2010.  The Respondent then referred to Labour Officer a complaint of unfair dismissal on the basis that he alleged he had been summarily dismissed by the Appellant.  The Labour Officer having failed to conciliate the matter then referred the dispute to the Arbitrator.  The Arbitrator’s terms of reference were two (1) to determine whether there was an unfair dismissal (2) Non-payment of salaries, allowances and trip bonuses.

The Arbitrator in his award concluded that the Respondent had been unfairly dismissed by the Appellant the Appellant having failed to dismiss Respondent in accordance with the Code of Conduct.  It was his further finding that the Respondent ought to be reinstated without any loss of salary and benefits.  The Arbitrator then quantified the salaries and allowances due to the Respondent as well as the trip bonuses.  He left for further negotiation the issue of damages in lieu of reinstatement.  The Arbitrator consequently handed down an award in the following terms;

“AWARD

That the applicant be paid as follows,

Salaries and allowances for August 2010 – October 2010

US$442.00

Trip bonuses				US$950.00

Cost to retrieve drivers’ licence	US$300.00

Total					US$1 692.00

That the dismissal was unfair and the applicant to be paid back pay at the salary rate of US$196.00 and $25.00 for Housing allowance from the date of unfair dismissal to the 5th of July 2011, Respondent to pay applicant at a salary rate of US$270.00 from 6th of July 2011 to date of passing of this award.  Housing allowance shall be calculated at the rate of US$35.00 for the same period.

Parties are to negotiate damages in lieu of reinstatement, failure which parties are to approach this Tribunal on or by the 15th of November 2011.

The above amounts shall be paid by the 30th of October 2011.

I so award.”

After the issuance of the award the Respondent then applied for registration of the award with the High Court.  The Appellant in turn applied for stay of execution of the award pending the hearing of an appeal it had noted against the arbitral award.  When the Respondent sought to execute the order by the High Court he was restrained on the basis that an application for stay of execution had been filed with the Labour Court.

The present appeal has been noted on the following grounds:

The Arbitrator erred by arriving at a decision that the purported dismissal was unprocedural. The Arbitrator ought to have considered the fact that Respondent was a probation employee and a full scale hearing was conducted before a decision to dismiss him was reached.

The Arbitrator erred by ordering reinstatement of the employee.  It is clear that the said Respondent committed an act of misconduct which warrants dismissal under the said circumstances.

The Court erred by dealing with the issue of the retrievement of the Drivers’ licence.  That issue should have been dismissed as it is not a labour related matter.

The Court erred by ordering that Respondent be paid salaries for August 2010 – October 2010.  There is no legal basis for such payment.

At the commencement of proceedings the Appellant submitted an application for the introduction of fresh additional evidence.  The application was opposed by the Respondent.  Both parties then made oral submissions.  The court thereafter handed down its ruling.  Based on the provisions in Section 89(5) as read with Section 90(A) of the Labour Act [Cap 28:01] the Labour Court had discretion to receive additional evidence.  In Thomas Njerere N.O. v Africa University LC/MC/17/2000 the court laid down factors to be considered by the court in such an application including, whether the evidence is credible, whether the evidence would prejudice the other party etc.  In this instance the court disallowed the introduction of the additional fresh evidence which was in the form of ‘purported minutes’ for disciplinary hearing held in 21/10/2010 and a contract of employment.  The court in reaching the conclusion found that no satisfactory explanation had been tendered by the Appellant as to why the evidence had not been placed before the Arbitrator.  The court also raised the issue of credibility of the evidence given that in the hearing before the Arbitrator the Appellant had made no reference at any stage to the fact that Respondent had been engaged on probationary contract.  It was also clear on perusal of the record that the Appellant’s submissions before the Arbitrator was that it had lawfully dismissed by summary dismissal.  There was never any reference to a disciplinary hearing having been conducted.  The introduction of the evidence at this stage would also materially alter the findings by the Arbitrator to the Respondent’s prejudice.  The application for the introduction of fresh evidence was consequently dismissed.

On the merits of the appeal it is very clear that the first ground of appeal is clearly without merit.  Section 12B (2)(a) and (b) of the Labour Act [Cap 28:01] provides that an employer commits an unfair dismissal where he fails to show that he dismissed an employee in terms of an employment Code or in the absence of the model code.  The Appellant in casu before the Arbitrator admitted to having summarily dismissed outside the terms of the Code.  The Arbitrator did not err in his conclusion that Appellant unfairly dismissed Respondent.

Under the second ground of appeal the Appellant contends that the Arbitrator erred by ordering reinstatement of the employee where the Respondent had also committed acts of misconduct warranting dismissal.  It was Appellant’s submission before the Arbitrator that the Respondent had recklessly driven Appellant’s motor-vehicle when it broke down.  He had without authority towed it and in the process damaged the vehicle.  The Arbitrator however refused to deduct the costs incurred by Appellant in repairing the vehicle from Respondent’s entitlements.

The Arbitrator having come to the conclusion that the Respondent was unlawfully dismissed was duty bound to order reinstatement or in the alternative damages in lieu of reinstatement.  The issue as to whether Respondent had committed a misconduct was not before him.  The Appellant had not conducted a proper hearing to determine whether the Respondent had committed the various acts of misconduct alluded to.  The Arbitrator would have no business referring to the purported misconducts which had not been lawfully established through a disciplinary process.  The Arbitrator therefore correctly found that he had no business in deducting any purported losses incurred by the Appellant from the Respondent’s entitlements.

The Arbitrator however erred in my view in dealing with the issue of US$300 which Respondent purportedly paid in order to retrieve his driver’s licence from the police.  Firstly that issue was not part of his terms of reference.  Secondly as the issue pertained to pay outs made to police through corruption the Arbitrator had no business discussing it in his award and then including it in his award.  The claim was clearly based on an illegal transaction and ought to have been dismissed.

The last ground of appeal is that the Arbitrator erred by ordering that Appellant pay Respondent salaries for August 2010 – October 2010.  The Appellant however through heads of arguments filed 8 November 2013 conceded to payment of two months’ salary less 25% which Respondent was given as advance for the trip to December.  The Appellant therefore agreed to payment of $331.50 to cover the two months’ salary.

The Respondent was clearly entitled to salary and allowances for August to October 2010.  The Respondent has not disputed that he received money in advance which ought to be deduced by 25% as alluded to by Appellant.  The Respondent is entitled to payment of US$331.50.  The Respondent is also entitled to trip bonuses as awarded by the Arbitrator.  He is not for reasons alluded to above entitled to claim US$300 for retrieving his licence from the police.  The Arbitrator also granted him back pay at the rate of US$196.00 and $25 (housing allowance) from date of dismissal to 5th of July 2011 and from June to July to 20 September 2011 at the rate of US$270.00 and $35.00 housing allowance.  Back pay normally is a component of damages in lieu by reinstatement and is addressed below.

The parties were also in terms of the award clearly supposed to negotiate damages in lieu of reinstatement.  It is not clear why the Arbitrator shirked his responsibility in this instance.  It is trite that failure on the part of an Arbitrator to assess damages in lieu of reinstatement amounts to a misdirection or non-compliance with the law in a material way.  Such an award is deemed to be incompetent and incapable of registration in terms of Section 98(14) of the Labour Act [Cap 28:01] see Mandiringa v NSSA & 5 Others applicants HH98-05.  After proceedings I directed the parties to make submissions in respect of the aspect of damages in lieu of reinstatement with a view of finalizing the matter.  By the time circuit ended, I had received submissions by Respondent’s legal practitioner and nothing in respect of Appellant.  In the circumstances I am unable to assess the damages in the absence of the other party’s submissions.  It is my intention to refer back the matter to the same Arbitrator to receive evidence and assess damages in lieu of reinstatement as he was required to have done initially.  In assessing the damages in lieu of reinstatement he shall also address the issue of back pays.  I therefore order as follows:

The appeal partially succeeds:

The Appellant shall make the following payments to the Respondent:

Salaries and Allowances for August 2010 – October 2010 US$331.50

Trip Bonuses US$950.00

The claim for costs to retrieve driver’s licence is hereby dismissed.

The aspect of damages in lieu of reinstatement (including back pay) is referred back for the same Arbitrator for an assessment of the damages.

The assessment should be finalized with 30 days of the date of this order.

Mutendi and Shumba Legal Practitioners Representing the Appellant.

Mwonzora and Associates Legal Practitioners Representing the Respondent.