Nickson Busu v Fidelity Life Assurance & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/194/2021
HARARE, 06 OCTOBER, 2021
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/194/2021

HARARE, 06 OCTOBER, 2021		     	     CASE NO. LC/H/REV/60/20

AND 05 NOVEMBER, 2021

In the matter between:

NICKSON BUSU								Applicant

Versus

FIDELITY LIFE ASSURANCE 						1st Respondent

FIDELITY FUNERAL ASSURANCE COMPANY (PVT) LTD		2nd Respondent

S. MUGUMISI (N.O.)							3rd Respondent

Before The Honourable Kachambwa J;

For Applicant:					E. Matsanura (Legal Practitioner)

For 1st and 2nd Respondent:			P. Mathuthu (Legal Practitioner)

For 3rd Respondent:					No appearance

KACHAMBWA J:

This is an application for review of a decision by an arbitrator. The decision follows a referral of the matter by this court on three terms of reference as follows;

“(a)	Whether or not Fidelity Life Assurance Company had jurisdiction to discipline the Respondent.

(b)	Whether or not Respondent was unfairly dismissed.

(c)	The appropriate remedy”.

The dismissal referred to is by the second respondent. The first respondent’s

penalty was a final written warning.

The arbitrator appears to have dealt with the first term of reference only. However a closer reading of the findings seem to show otherwise. It is unfortunate that the determination is not clear but he writes-

“In the result it is my finding that the 1st respondent had no jurisdiction to discipline the applicant for the reasons I have already given above. It remains the 2nd respondent’s prerogative to proceed or not to proceed to discipline the applicant through the right code of conduct, which would be the national employment code of conduct, if it does not have one registered in its own name.’’

What is the meaning of this passage?. It is for the arbitrator to explain but it appears that the arbitrator is talking of another hearing to be undertaken by the 2nd respondent. That can only be done if the hearing already carried out was not proper. That would answer to whether the dismissal was procedurally proper or not. In other words was the employee unfairly dismissed?. The arbitrator has to decide on all the terms of reference. It is not correct that he should end on the first term. The dismissal was by the second and not the first respondent.

In the hearing the applicant admitted that the issue of bias does not arise. It is merely an issue of failure to appreciate that all the terms of reference were supposed to be decided on. The arbitrator has to complete the hearing in that respect. There is no need to refer the matter to a different arbitrator.

In the result the draft order has to be amended accordingly. It is accordingly ordered that:-

1.	The application for review be and is hereby allowed.

2.	The matter be and is hereby remitted to the same arbitrator to decide on the remaining terms of reference viz-

(b)	Whether or not applicant was unfairly dismissed.

(c)	The appropriate remedy.

3.	Each party bears its costs.