Solta Trading Company (Pvt) Ltd v Precious Chigwaza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/507/2014
HARARE, 23 JULY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/507/2014

HARARE, 23 JULY 2014	    		  	            CASE NO. LC/H/308/14

AND 01 AUGUST 2014

In the matter between:-

SOLTA TRADING COMPANY (PVT) LTD			Appellant

And

PRECIOUS CHIGWAZA						Respondent

Before Honourable E Muchawa, Judge

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

Respondent		-	In person

MUCHAWA, J:

This is an appeal against an arbitral award.

Respondent was employed as a Recruitment and Training Consultant by appellant with effect from April 2013.  Following theft of a laptop from the office, respondent was sent away to facilitate investigations in March 2012.  The parties differ in their version of events thereafter.

Appellant claims that the respondent was put on compulsory leave.  It is alleged that during investigations, it was uncovered that respondent was committing another misconduct relating to engaging in work which was in direct conflict with his contract of employment as he was working for another agency.  Upon being confronted, and with the possibility of a police report, respondent is said to have opted to resign.  A mutual termination is alleged to have been agreed to.  Respondent is however said to have left and disappeared till appellant received the notice to attend to conciliation from the Ministry of Labour.

Respondent’s version is that he was verbally suspended after the theft of the laptop and was invited back on 11 April 2013.  He claims to have denied committing both the alleged acts of misconduct.  Appellant’s director is then alleged to have asked respondent to write a resignation letter and respondent refused and asked appellant to be the one initiating disciplinary proceedings.  When no proceedings were initiated, respondent claims to have made a report at the Ministry of Labour for conciliation.

The arbitrator made a finding that respondent had been unfairly dismissed in respect to allegations of conflict of interest as no disciplinary proceedings had been held and ordered reinstatement or alternatively damages in lieu of reinstatement.

The grounds of appeal raise two questions for my determination.  These are:

Whether or not the findings of the arbitrator on the facts were so unreasonable as to amount to a misdirection at law in that;

(i) The arbitrator failed to determine that the contract of employment was mutually terminated after the respondent had voluntarily admitted to some acts of misconduct hence there was no need to conduct a disciplinary hearing.

(ii) The arbitrator failed to point out why he disagreed with appellant’s submissions.

(iii) The arbitrator failed to determine that a contract of employment could be lawfully terminated even without conducting a disciplinary hearing in the circumstances.

Whether a labour consultant had a right of audience to appear and represent respondent before the arbitration tribunal and effect thereof.

Issue 1

The arbitral award does not seem to have dealt with appellant’s submission that there had been a mutual termination of the contract of employment.  My perusal of the appellant’s written submissions before the arbitrator shows that appellant did not in fact submit that there had been a mutual termination.  I quote the relevant paragraphs below:

“7. Respondent decided to terminate the contract of employment with the claimant taking into consideration that he had previously committed a similar offence (appendix E) and offered him an option to resign instead of the respondent initiating charges against the claimant.

8. Claimant did not object and left the office premises and never returned nor made any effort to communicate with the respondent.”

I find therefore that no allegation of a mutual termination was made before the arbitrator.  Appellant only made an offer which was clearly not accepted.  The decision to terminate was that of appellant and the procedure for termination in terms of the law was not initiated.  The arbitrator cannot be faulted for not considering mutual termination as no such submission was placed before him and it was not demonstrated in the facts before him.  There was no evidence of a voluntary admission to an act of misconduct and a subsequent mutual termination.  (See Kandoma v Shades of Black Cosmetics (Pvt) Ltd SC 115/04 and Tirivangana v University of Zimbabwe SC 21/2013).  I therefore dismiss the first ground of appeal in its entirety.

Issue 2

Respondent was represented at the arbitral tribunal by one Z. Changambika, a Labour consultant.

It is appellant’s position that the arbitrator erred in failing to determine that a labour consultant had no right of audience before him and such representation has the effect of vitiating or nullifying the proceedings.   I was referred to the case of Bothwell Rutsvara v Lucullus (Pvt) Ltd LC/H/38/08 in which MUSARIRI J came to such a conclusion.

Respondent relies on Article 24 (4) of the Arbitration Act (Chapter 7:15) which reads;

“At any hearing or any meeting of the arbitral tribunal of which notice is required, or in any proceedings concluded on the basis of documents or other materials, the parties may appear or act in person or may be represented by any other person of their choice.”

Appellant further argues that the Arbitration Act provision cited above is inapplicable as arbitrators appointed in terms of section 98 of the Labour Act [Chapter 28:01] have specific regulations governing them as well as the Labour Act itself.

A perusal of the Labour Act shows that in section 92 thereof it excludes Labour consultants from appearing and arguing before the Labour Court by recognizing only registered legal practitioners and bona fide officials of registered trade unions or employers organization.  This section is clearly not extended to arbitral tribunals.

Section 98 (9) of the Labour Act gives an arbitrator the same powers as the Labour Court in the hearing and determination of disputes.  This section clearly deals with powers of the Labour Court as set out in Section 89 of the Labour Act.  It does not provide for similar procedures, but powers. Arbitrators generally rely on the Arbitration Act for their procedures together with the Labour (Arbitrators) Regulations, 2012.  The regulations are silent about the right of audience of labour consultants.

The closest guidance in the Regulations is section 7 (1) (g).  It provides;

“ the arbitration process is conducted so as to advance the fair and efficient resolution of the matter (s) submitted for decision, including making all reasonable efforts to prevent delaying tactics, harassment of parties or other participants or other abuse or disruptions being practiced.”

I therefore agree with respondent that in terms of Article 24 (4) of the Arbitration Act [Chapter 7:15] a party may be represented by any person of their choice.  This position is supported by Gwisai M, Labour and Employment Law in Zimbabwe, Zimbabwe Labour Centre and Institute of Commercial Law, 2006 at page 280 and Matsikidze R, Alternative Dispute Resolution in Zimbabwe:  A practical approach to arbitration, mediation and Negotiations, 1st Ed, 2013 at page 90.

I am not bound by the decision cited by appellant which emanated from this court as Rule 35 (1) of the Labour Court Rules SI 59/2006 says such a decision shall only have persuasive authority.

Consequently I find no merit in the second ground of appeal and dismiss it.

Accordingly;

“The appeal being devoid of merit, it be and is hereby dismissed with cost.”

Nyikadzino, Simango & Associates, Appellant’s legal practitioners