Rural Electrification Agency v Mary Musanhu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/651/2013
HARARE, 07 & 22 NOVEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/651/2013

HARARE, 07 & 22 NOVEMBER 2013	    		     CASE NO. LC/H/577/13

In the matter between

RURAL ELECTRIFICATION AGENCY				Appellant

And

MARY MUSANHU						         Respondents

Before The Honourable P. Muzofa, Judge

For Appellant 		-	Mr M. Gapara (Legal Advisor)

For Respondent		-	Mr M. Mutsvairo (Legal Practitioner)

MUZOFA J:

This is an appeal against an arbitral award which ordered the Appellant to reinstate the Respondent.

The Respondent was employed by the Appellant as an accounts Clerk.  During the course of her duties it was alleged that Respondent had altered some requisitions causing prejudice to the Appellant.  Respondent was charged under the National Employment Council of Zimbabwe Energy Industry Code of Conduct.  When the matter was due for hearing a point in limine was raised that the said code was not applicable since it came into force after the Respondent had purportedly committed the offence.  The hearing committee decided not to proceed with the matter.  Subsequently the Respondent was charged in terms of the National Employment Code Statutory Instrument 15 of 2006.  This time around the Appellant appointed a disciplinary authority to preside over the matter.  The one person was a Mr Muhwati who was the chairperson of the Initial Disciplinary Committee.

The Respondent’s representative objected to this one person authority.  Although at that stage the Respondents did not raise bias as the main issue before this court it was raised.  The main objection by Counsel for the Respondent before the hearing authority was that they wanted all the members of the first committee to preside over the matter.  From the record of the proceedings Mr Muhwati the hearing authority then made a ruling that the Appellant had a discretion to constitute a committee or an authority to preside over matters.  He then proceeded to hear the matter.  Respondent and her counsel requested to be excused and they were excused.  In her absence evidence was led and Respondent was found guilty of the charges leveled against her and dismissed.  Respondent appealed to the Appeals Hearing Officer and the appeal was unsuccessful.  Subsequently the matter went before an Arbitrator after conciliation failed.  The Arbitrator’s terms of reference were

Whether or not there was non-compliance with SI 15 of 2006.

Whether or not there was unfair dismissal.

The Arbitrator ordered that the Appellant reinstate the Respondent and referred the matter back to the Appellant to be heard before a different hearing committee or authority.

The Appellant then noted an appeal to this Court based on six grounds.  A careful analysis of the grounds of appeal to my mind come to one ground of appeal that the Arbitrator erred in finding that the hearing authority was biased.

The test for bias has been clearly set out by the courts, it must be more than conjecture or suspicion it must be real and not remote.  In the case of Bailey v Health Professions Council 1933 (2) ZLR 17 (S) the court had this to say

“Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the Tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him”

I propose to put out the circumstances of this case.  It is common cause that Mr Muhwati was the Chairperson of the first hearing committee.  At that hearing the matter was disposed of by way of a point in limine raised by the Respondent’s legal representative.  The matter did not proceed into the merits, no evidence was led.  What is in dispute is whether Mr Muhwati during those proceedings ordered the Secretary not to minute some utterances by one Sauramba. Sauramba was the Complainant and it was alleged that he had said “I know who to fix”, thereafter the Chairperson ordered the Secretary not to record that part.  The Respondent’s representative submitted that was the reason the other members of the committee did not sign the record of proceedings as a true reflection of what transpired.  In addition on the day in question of the subsequent hearing at 0900 hours all the other committee members were at the venue except for Mr Muhwati.  Counsel for Respondent excused himself and advised Appellant to advise him when the chairperson arrived.  It was until 1500 hours when Counsel was contacted and upon arrival he discovered that the other committee members were no longer present it was only Mr Muhwati to preside over the matter as an authority.  According to the Respondent being alone there could be a real danger of bias since he was at one point ceased with the matter.

On the other hand the Appellant argued that the fear of bias was mere speculation.  Mr Muhwati did not deal with the matter on merits.  He did not order certain utterances not to be recorded.  That there was no evidence of bias or any indications that he had an interest in the matter.  It was also submitted that at the second hearing Respondents had actually indicated that they did not doubt Mr Muhwati’s impartiality.  According to the Appellant the record of proceedings for the first hearing was not signed by the other committee members because a formal meeting was not convened for the members to sign the minutes.  I must say the Appellant’s representative could not explain why such a meeting was not held since it was

important that the minutes were signed by committee members to confirm their authenticity.  In my mind there must have been an issue which led members not to sign.

I believe justice must not only be done but seen to be done.  This matter has been skirting around technicalities at no point did the Respondent plead her innocence. The matter must be addressed on the merits.  Its undesirable that the Respondent is reinstated solely because of a technicality she must be reinstated because she did not commit the offence.  If Muhwati presided over the matter initially clearly he was aware of the facts of the case, for it to be concluded that he could be biased I think there must be something more than that knowledge.  In this case there is something more.  Muhwati interfered with the writing of the minutes.  The only logical conclusion to be drawn from such conduct is that there was a bias that the complainant could be seen in a bad light.  I reject Appellant’s explanation why the minutes were not signed by other committee members.  In addition what the Respondents want is to be tried by an impartial committee or authority, they are not refusing to be tried.  The Appellant’s representative argued that technically there is always some institutional bias since the process is at the employer’s terms and conditions.  He relied on the case of Musarira v Anglo – American Corporation 2005 (2) ZLR 267 for this proposition.  Indeed this bias can be inferred to exist but it should not be so apparent in the manner and conduct of the parties appointed to hear the matter.  It should be noted that where individuals are appointed to preside over such matters it is assumed that they are clothed with eyes to look into the matter with impartially considering only the facts before them.  It boggles my mind why the other committee members appeared at first but when the chairman finally showed up they were not part of the hearing panel.  Were they appointed to be part of this process or not?  The record has evidence that only Muhwati was appointed to be the hearing authority.

I believe to any reasonable person faced with the circumstances of this case there can be an apprehension of a real danger of bias.  On that basis the appeal must fail.

Accordingly the following order is made.

The appeal be and is hereby dismissed.

The arbitral award be and is hereby upheld, the matter is remitted back to the Appellant to constitute a different committee /authority to deal with the matter.

Each party to bear its own costs.     eHH

Mushonga, Mutsvairo & Associates – Respondent’s Legal Practitioners