Muronzi Keresencia v Chitungwiza Municipality

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/525/2014
HARARE, 16 JULY 2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/525/2014

HARARE, 16 JULY 2014				               CASE NO. LC/H/989/13

AND 15 AUGUST 2014

In the matter between:-

MURONZI KERESENCIA			-		Appellant

And

CHITUNGWIZA MUNICIPALITY	-		Respondent

Before Honourable L.M. Murasi, Judge

For Appellant		-	Mr. W. Madzimbamuto (Legal Practitioner)

For Respondent		-	Mr. R. Matsikidze (Legal Practitioner)

MURASI, J:

Appellant was in the employ of Respondent.  Appellant was dismissed for allegedly participating in an unlawful job action after a hearing.  The matter was referred to arbitration and the Arbitrator upheld the decision to dismiss the Appellant.  Appellant is dissatisfied and has appealed to this Court.

Appellant relies on the following grounds of appeal:

The findings by the arbitrator on the facts were so unreasonable as to amount to a misdirection at law in that;

The arbitrator failed to determine that the conduct of the Appellant did not amount to participation or incitement of an unlawful job action.

The arbitrator failed to determine the charges of misconduct as laid by the Respondent amounted to splitting of charges.

The arbitrator failed to determine that the disciplinary hearing of the Appellant was tainted with serious procedural irregularities which legally vitiated the whole proceedings.

The Honourable arbitrator erred on a point of law by holding that the Respondent properly exercised its discretion to dismiss the Appellant even though the penalty imposed was ultra vires the Code of Conduct.

At the commencement of the proceedings, Respondent’s Counsel raised a point in limine stating that Appellant’s grounds of appeal did not raise points of law as provided in section 98 (10) of the Labour Act [Chapter 28:01].  It was further argued that Appellant had raised procedural issues which should have been raised by way of review.  Respondent’s Counsel submitted that in the first ground of appeal, Appellant dwells on a factual finding and does not show in what manner the Arbitrator misdirected herself.  As far as the second ground of appeal was concerned, it was submitted that certain conduct goes to the root of the employment contract and therefore the Arbitrator did not err in upholding the decision to dismiss Appellant.

Appellant submitted that the fact that the Arbitrator had not taken into account the issues raised by Appellant concerning the initial hearing showed a misdirection of her part.  It was argued that the Arbitrator was enjoined to consider the matters raised.  Appellant’s Counsel pointed out that the procedural irregularities being raised were not those of the Honourable Arbitrator but that she failed to exercise her mind on issues that were brought before her.  Further, it was submitted, the issue of the interpretation of Respondent’s Code of Conduct was a matter of law warranting its ventilation in the proceedings.

The Court dismissed the point in limine and stated that the reasons would follow in the main judgment.  The Court will proceed to address the issue.  It is common cause that Appellant raised the issue of procedural irregularities before the Arbitrator.  Appellant contends that the Arbitrator failed to address the issues raised and therefore arrived at a wrong decision.  The Appellant is therefore stating that the failure by the Arbitrator to address those issues amounted to a misdirection resulting in a wrong decision on the matter.  Would a failure to appreciate the issues advanced in argument not amount to a point of law?    I am of the view that it does.  The second issue relates to the interpretation of the Respondent’s Code of Conduct.  It is clear that the averment that the Arbitrator failed to interpret the Code of Conduct amounts to a question of law.  The Court therefore is of the view that Appellant is properly before the Court.

In submissions on the merits, Appellant stated that the composition of the Board of Inquiry was not in accordance with the provisions of the Code of Conduct.  It was stated that there should not have been provided for a Chairperson with a casting vote coming from management.  The record shows that Appellant objected to the presence of Mr. Chirowodza who was then replaced by Mr. Muchesa.  Appellant further objected to Mr. Muchesa’s chairing the hearing as he was also a suspending authority.  This was declined on the basis that such persons were part of management and it was part of their duties to suspend employees and to chair such hearings.  It is at this stage that Appellant and her defence team walked out of the hearing.  The Code of Conduct does not prescribe as to who chairs such hearings.  It only provides for the number of representatives who should be present at the hearing.  I am of the view that this ground of appeal should fail.

The Appellant further raises the issue of splitting of charges in the grounds of appeal.  The record shows that Appellant was facing six counts and was found guilty of three and discharged on the other three.  This clearly shows that the Board of Inquiry applied its mind to the evidence that went to prove a particular charge.  Participation in an unlawful job action is not the same as absenteeism.  The record shows that the Minister of Labour issued a Show Cause Order.  Failure to comply with the Show Cause Order is an act of misconduct which is different from absenteeism.  The fact that one absents himself/herself from work does not necessarily mean that he/she is participating in a collective job action.  The ground of appeal averring a splitting of charges must therefore fail.

Appellant also raises the issue that the Arbitrator failed to determine that the conduct of the Appellant did not amount to participation or incitement of an unlawful job action.  The minutes of the Board of Inquiry show that after Appellant had walked out of the hearing the Committee went on to consider the evidence that incriminated the Appellant.  The following is reflected in the record:

“SCOPE:

TO establish whether Mrs. Muronzi (Appellant) committed the alleged offence or not.

The Finance Director read the report on Mrs. Muronzi concerning closure of St Mary’s Clinic.

It was pointed out that Mrs. Muronzi participated in the illegal collective job action.

That as a senior member of the ZURWU executive she had powers to stop the strike and could control and order employees to go back to work.

Both Mr. Marau and Mr. Kapamba agreed that basing on evidence presented to the Board, Mrs. Muronzi could be charged with Absenteeism and participating in illegal strike.” (Mr. Marau and Mr. Kapamba were Workers’ Representatives)

The record further shows that in its deliberations, the Board of Inquiry found that Appellant had caused disorder.  She had not reported for duty and did not perform duties as she was involved in inciting workers to strike.  She was however exonerated on charges of violence.  It was also a finding of the Board of Inquiry that Appellant had seen the Show Cause Order but had not taken any action to comply with the Order.  These were the findings of the Board of Inquiry in the absence of the Appellant.  This is the same evidence that was placed before the Arbitrator.  The evidence, in the absence of any submissions to the contrary, pointed to Appellant’s guilt. Should the Arbitrator have found otherwise?  I think not.  By leaving the hearing Appellant is deemed to waived her rights in this regard.  I associate myself with the sentiments expressed by CHEDA AJA (as he then was) in ROBERT DOMBODZVUKU AND ANOR vs CMED (PVT) LTD S 14/11 at pages 7-8 of the cyclostyled judgment:

“There was therefore no breach of the audi alteram partem rule.  The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.  Worse still they left without responding to, or refuting the charges against them.  They declined the opportunity to put forward their defences to the allegations.  I find no fault in the Labour Court holding that the appellants waived their rights to be heard by walking out of the disciplinary proceedings.”

The Court is of the firm view that this also applies to Appellant’s situation in casu.

Appellant raises a final point that even though she was found guilty, the penalty imposed on her was not in terms of the provisions of the Code of Conduct.  Appellant’s Counsel stated that the Respondent was bound to impose a penalty as prescribed and that the appropriate penalty was a Written Warning.  Respondent’s Counsel on the other hand, argued that Appellant’s conduct went to the root of the employment contract which justified her dismissal.  Respondent’s Counsel relied on TOYOTA ZIMBABWE vs RICHARD POSI S 55/2007 where it was stated by MALABA JA (as he then was) at page 8:

“A code of conduct cannot alter or abrogate a principle of the common law.  It does not matter that the code of conduct is a product of an agreement.”

The record shows that St Mary’s Clinic, where Appellant worked, had to be closed during the period of the unlawful job action.  The Board of Inquiry made the following finding:

“Because of the strike, diseases outbreaks were imminent and TB, HIV and AIDS and other patients suffering from other ailments were disadvantaged as they failed to access nearby St Mary’s Clinic for treatment exposing possible dangers to human life.”

This was the extent of Appellant’s participation in the unlawful job action.  The question to be answered is, was it competent for the Respondent to impose a penalty of dismissal instead of a Written Warning?  SANDURA JA (as he then was) had occasion to consider the issue of misconduct warranting dismissal in CLAUDIUS MARIMO vs GMB SC 27/09.  After referring to other cases discussing the sufficiency of the justification in dismissing an employee, he had this to say at page 12 of the cyclostyled judgment:

“In the present case, Murawo’s misconduct can hardly be described as ‘so trivial, so inadvertent, so aberrant or otherwise so excusable that the remedy of summary dismissal was not warranted’. On the contrary, the misconduct was serious and premeditated and called for the penalty of dismissal.”

It is the Court’s view that Appellant’s conduct was of a serious nature.  A reasonable employer would have reasonably dismissed the Appellant in the circumstances.  The Respondent was entitled to dismiss the Appellant notwithstanding the fact that a first breach attracted a Written Warning.  The misconduct went to the root of the employment contract warranting a separation.

In the result, the Court finds the appeal to be devoid of merit and it is accordingly dismissed with costs.

NYIKADZINO, SIMANGO & ASSOCIATES	, Appellant’s legal practitioners.

MATSIKIDZE & MUCHECHE, Respondent’s legal practitioners