Miriam Makwara v Kasipiti Children's Home

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/215/16
HELD AT HARARE 18 NOVEMBER 2015
CASE
JUDGMENT NO LC/H/215/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/215/16

HELD AT HARARE 18 NOVEMBER 2015			CASE LC/H/599/15

& 8 APRIL 2016

In the matter between:

MIRIAM MAKWARA				Appellant

And

KASIPITI CHILDREN’S HOME			Respondent

Before The Honourable R F Manyangadze, Judge

For Appellant			Mr C K Mutevhe (Legal Practitioner)

For Respondent		Ms N Moyo (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against an arbitral award in terms of which the appellant was found guilty of misconduct and dismissed from employment.

The events leading to the award can be summarised as follows.

The appellant was employed by the respondent as a caregiver.  Six year old Sean Mugove, one of the children under appellant’s care, urinated in bed.  On 26 June 2014, it is alleged the appellant assaulted the child, upon discovering that he had urinated in bed the previous night.  The child bled through the mouth and nose after he was allegedly hit by the appellant.

The matter was reported to the police on 11 July 2014.  The appellant was convicted of the assault at the Harare Magistrates’ Court, and sentenced to pay a fine of US$50.00 or serve 10 days imprisonment.

Meanwhile, the respondent had suspended the appellant pending a disciplinary hearing.  The suspension was with effect from 10 July 2014.

The respondent, on the same day it suspended the appellant, referred the matter to the National Employment Council for Welfare & Educational Institutions (NEC) for conciliation by a designated agent.  The reasons for such referral were that the children’s home was new and had not yet developed the necessary disciplinary hearing structures.  It was established in July 2013.

Following the appellant’s criminal conviction, the Department of Social Welfare, as the regulatory authority over orphanages, directed that the appellant should never be allowed on respondent’s premises.

On 10 November 2014, the matter went for conciliation at the NEC.  Conciliation failed.  The matter was referred to compulsory arbitration, leading to the arbitral award in contention.

The grounds of appeal are stated as follows:

“1.	The learned arbitrator grossly misdirected herself by finding the appellant guilty of the alleged misconduct.

The learned arbitrator misdirected herself in dismissing the points in limine.

The learned arbitrator grossly misdirected herself and erred in law by changing the terms of reference mero metu and substituting the charged preferred by the employer

The learned arbitrator erred in law by granting an incompetent award.

The learned arbitrator misdirected herself and erred at law by misconstruing the provisions of Section 101 (5) of the Labour Act.”

At the hearing of the matter, the appellant placed great emphasis on the issue of

the arbitrator’s jurisdiction to hear the matter.  Mr C K Mutevhe, on behalf of the appellant, submitted during oral argument;

“I will address on one issue – there was no disciplinary hearing that was held.  The matter was simply referred to conciliation and later to arbitration…

I have taken note of the argument by the respondent, that since the employer could not conduct a hearing within 30 days, referral to conciliation was proper in terms of section 101 (6) of the Labour Act.

But that section says if a matter is not determined within 30 days (reads out section)

But section 101 (6) refers to sub-section (3) (reads out)…

There is a notification that must be sent.  This was not the case.  No notification was ever sent.  This was purely a suspension followed with conciliation.  That is the bone of contention on appellant’s part.”

The record shows that at arbitration, the appellant raised no other issue.  She declined to address the arbitrator on the merits, insisting the latter had no jurisdiction as the matter was wrongly referred to her.

The respondent, on the other hand, contended that it was proper to proceed in terms of section 101 (6).  Ms N Moyo, on behalf of the respondent, argued that the respondent had no capacity to institute disciplinary proceedings, hence the referral to the NEC.

A reading of section 101 (6) shows that it provides for a time line of 30 days within which a matter must be resolved at the work place level, before a party can refer it to a labour officer.  It provides as follows;

“If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of sub-section 3, the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety three.”

It appears computation of the 30 day period is linked to notification of a disciplinary hearing, by virtue of reference to sub-section (3).  If, within 30 days of being notified of a hearing, which notification marks the commencement of disciplinary proceedings, no determination is made, the dispute can be referred to a labour officer.

That is not the scenario that obtained in the instant case.  The matter was referred to the NEC designated agent (equivalent of a labour officer) soon after suspension.  Infact, such referral was done on the same day that the appellant was suspended.  This was irregular, given the procedure provided for in section 101 (6).  Ordinarily, this should vitiate the proceedings conducted by the designated agent, and subsequently by the arbitrator.  This infact is what the appellant has implored this court to do – set aside the arbitral proceedings on the basis of the aforesaid procedural irregularity.

However, not all procedural irregularities are fatal.  The circumstances of each case must be carefully considered.  In particular, the element of prejudice becomes a material factor.

This, it seems, is what influenced the arbitrator in proceeding to handle the matter.  In her analysis of the parties’ submissions, she remarked;

“The applicant could not proceed to conduct a hearing due to incapacity in terms of the NEC Code where a disciplinary committee has to be there.  The applicant was crippled to conduct the hearing.  In terms of the NECWEI Code there is no provision for a disciplinary authority, therefore the applicant (employer) deemed it fit to refer the matter as a dispute for it to be resolved amicably.  Therefore I see no prejudice in referring the matter to NEC because the employee (respondent) was afforded the right to be heard before the audience of NEC at conciliation stage and subsequently arbitration.  At arbitration both parties were present and the claimant outlined her charges and the respondent made a submission to the charges and therefore the arbitrator will proceed to look into the merits as filed.”

It is the court’s considered view that the arbitrator cannot be faulted for adopting this approach, in the circumstances.

In this regard, Ms Moyo, for the respondent, submitted during oral argument;

“Respondent, who is an orphanage, did not have a Workers Committee and did not have the capacity to conduct a disciplinary hearing.   Was that pre-mature reference to conciliation fatal to the disciplinary proceedings?  The Appellant was aware the  matter was referred to the NEC the same day she was suspended.  She was asked, on that same day, to give her response, and she denied the charges…

Would it have made a difference for the respondent to charge the appellant, then simply await passage of 30 days?

The respondent was aware it could not conduct proceedings within 30 days, and it immediately referred the matter to conciliation…

What is required is that the rules of natural justice should be followed.  That is what happened in this instance.  The employer was unable to constitute a disciplinary hearing.  The matter was referred to the next available forum, where employee would be heard and would be able to defend herself.  That is what was done.  The failure to hold an internal hearing was therefore not fatal.”

The court finds the contention by the respondent, in the circumstances, quite persuasive.

Even if the requisite notification to attend a hearing was done, it would have been simply a matter of waiting for the 30 day period to expire.  The matter was, inevitably, going to be referred to the next level of adjudication, as there were imply no mechanisms in place to conduct a hearing.  It appears the respondent did the best it could under the circumstances, to ensure that the appellant was accorded her fundamental rights, and was not prejudiced in this regard.

Reference was made to the case of Dulys Holdings v Chanaiwa 2007 (2) ZLR (1) (S).  In that case, GWAUNZA JA stated;

“The appellant’s argument that it did the best thing under the circumstances to ensure that the respondent had a fair hearing cannot, in my view, be faulted.  To the extent that the respondent was given an opportunity to answer to the charges and present his side of the story, he should not be heard to say that there was no observance of the audi alteram partem rule.  The court a quo correctly noted in its judgment that the rules of justice required no more than that the domestic tribunal acts according to the common sense precepts of fairness.  Given the circumstances outlined above, I respectfully disagree with the court a quo’s conclusion that it could, in casu, not be said that the rules of natural justice were observed.  I am satisfied that the respondent was, therefore not prejudiced in any way by the disciplinary procedures followed.

The appellant argues, correctly, that the adoption of disciplinary procedures not specifically outlined in the Code finds support in ZFC v Geza 1998 (1) ZLR 137 (S), where this court emphasized the importance of flexibility in the conduct of disciplinary tribunals, and the principle that they were there to conduct an enquiry.  It cannot, in my view, be said in this case that the disciplinary tribunal did not conduct an inquiry.”

In the instant case, it cannot be said that the appellant was denied her rights.  She was not prejudiced by the proceedings before the NEC and the arbitrator.

Another issue the appellant raised was the additional charge of negligent performance of duty, which the arbitrator added to the original charge of assault.  The arbitrator seemed to take the view that appellant’s conduct also constituted negligence in the performance of her duties, and mero motu added that charge.  This was irregular.  Counsel for the respondent conceded the impropriety.  She however, pointed out that that did not vitiate the assault charge, which was really the basis for the dismissal.  Submitted  Ms Moyo for the respondent:

“Whilst that further aspect my not have been proper, but it remains that the misconduct of assaulting the child was the basis for dismissal.”

There is no doubt that appellant knew what charges she was facing – the assault on the child under her care at the respondent’s orphanage.  She had gone through a criminal trial in respect of that assault.  She had gone through conciliation, and thereafter arbitration.  A report was made to the orphanage authorities, who submitted statements at arbitration.  A report was made to the police, and a medical report obtained. Following her conviction in a criminal court, the Department of Social Welfare, as it was obliged to do as the regulatory authority for orphanages, banned the appellant from visiting institutions where children in need of care are kept.

With all this information placed before her, the arbitrator had an overwhelming factual basis on which to find the appellant guilty of the misconduct alleged.  The procedural irregularities the appellant sought to rely on cannot vitiate such a finding.  In Air Zimbabwe (Pvt) Ltd v Chiku Mnensa & Anor SC 89/04, CHIDYAUSIKU CJ stated, at p 6;

“A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee.  He should escape such consequences because he is innocent.”

In casu, the appellant cannot escape liability for the assault perpetrated on the child in question, notwithstanding the procedural irregularities pointed out.

The only variation that has to be made to the arbitral award is the finding of guilty on the additional charge of “gross negligence in the performance of duties.”  That portion of the award has to be set aside, as it was not the subject of the misconduct proceedings.  Even if that portion is set aside, what remains of the misconduct, assaulting the child under appellant’s care, does not detract from the gravity of the misconduct.

It is noted that no submissions have been made on penalty, as the appeal concentrated on procedural defects.  For the reasons stated, the appeal cannot be upheld.

It is accordingly ordered that;

The appeal be and is hereby dismissed.

The arbitral award be and is hereby upheld, except the portion that reads “and also gross negligence in the performance of duties”, which portion is set aside.

The appellant shall bear the respondent’s costs.

Muvingi & Mugadza, appellant’s legal practitioners

Coglan, Welsh & Guest, respondent’s legal practitioners