Sylvernos Ushe v Urban Councils Association of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/480/2013
HARARE 7TH MAY & 11TH OCTOBER 2013
CASE NO LC/H/394/2012
In the matter between:-
---------




IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/480/2013

HARARE 7TH MAY & 11TH OCTOBER 2013		CASE NO LC/H/394/2012

In the matter between:-

SYLVERNOS USHE						APPELLANT

Versus

URBAN COUNCILS ASSOCIATION			RESPONDENT

OF ZIMBABWE

Before The Honourable L Kudya	:	Judge

For the Appellant		In Person

For the Respondent	J Mambara (Legal Practitioner)

KUDYA J:

This is an appeal against the arbitrator’s decision where he upheld the dismissal of the Appellant.

Facts of the case are that, the Appellant who was in the Respondent’s employ as a Finance Manager was charged with contravening the National Code of Conduct SI 15/06 where it was alleged that he had performed his duties inefficiently thus displaying gross incompetency or lack of skill which he professed to possess. A disciplinary hearing was convened by the Respondent’s committee.

The committee found him guilty of the alleged infraction and consequently dismissed him from employment.

Aggrieved by his dismissal he took the matter up on appeal and ended up at arbitration where the arbitrator also upheld his dismissal. It is against the confirmation of that dismissal that he has now appealed to this court.

His grounds of appeal are as follows:

Gross Miscarriage of justice.

He alleges that his right to be heard was compromised by the fact that the arbitrator ignored his submissions and only relied on the Respondent’s submissions. In the same light he argues that his disciplinary hearing was flawed in that it commenced with a penalty followed by investigations.

Failure to comply with the Labour Act in dismissing the employee.

Here he says that he was penalised first before his disciplinary case was heard. Further to that, he says the Respondent acted as both the judge and the complainant in its case yet the arbitrator found no fault with that.

Reviewing instead of attending to the appeal

Here his argument is that, given that dismissal is a severe penalty, the arbitrator had to HAVE a broader view of the charges before confirming the dismissal. In particular, he maintained that duties for which he was dismissed were only brought to his attention for the first time during his dismissal.

Substantive fairness

His argument in this respect is that the duties which he was charged for were not the duties which he was mandated to carry out as per the Accounting Procedures Manuals copies of which he furnished court with. He also highlighted that, the reporting structures in relation to the duties were not clear hence it was improper to find him guilty of the infraction complained about. He also argued that he did more duties than his title entailed as a way of assisting the Respondent. Finally he argued that the audit report was not taken in during the hearing for fear that it could demonstrate that he had no case to answer at all.

In response to the appeal the Respondent maintained that:

The grounds of appeal are frivolous and vexatious.

An appeal to the Labour Court lies on a point of law and the grounds of appeal raised by the appeal do not raise any point of law.

The Respondent to that end prayed for the dismissal of the appeal.

Both parties filed with the court comprehensive heads of argument and various authorities to support their different positions. The court does not wish to restate these as they are already part of the record.

It is trite law that, appeals against arbitral awards to the Labour court lie on points of law. What is a point of law is settled in various authorities including the case of Sable Chemicals v Peter Eastbrooke SC-18-10.

Further to that, even where the third rung of the point of law test is applied the law is clear that, exercise of discretion by a lower tribunal is not to be interfered with unless it can be demonstrated that it was exercised outrageously or in defiance of logic and common sense. See the case of Attorney General v Howman 1988 (2) ZLR 402 (SC).

Applying the above legal principles to the instant case it is clear that what the Appellant basically raised were review issues which he also tabled before the arbitrator, that is, the issues to do with the processes leading to his dismissal. A reading of the arbitral award demonstrates clearly that the arbitrator attended to each of these in turn and the court is satisfied that there is no legal basis for upsetting the arbitrator’s finding on all the issues relating to the processes which were followed.

As regards the substantive component of the case, it is clear from the legal position already enunciated above that only where there is a misdirection which amounts to a point of law shall the instant court be allowed to interfere.

A reading of the arbitral award also demonstrates clearly that, the arbitrator applied his mind to all the substantive issues vis in the case which the Appellant raised before him and the court does not find fault with any of them.

In any event, even from a technical perspective the court is in agreement with the Respondent’s argument that the way in which the grounds are couched do not raise any point of law. However even if the court were to for once condone the failure to articulate the grounds to the required legal standard due to the Appellant’s self actor status there is nothing in the arbitral award which demonstrates that the arbitrator exercised his discretion capriciously or improperly.

In the ultimate it is clear that none of the grounds of appeal raised by the Appellant has merit. They all should accordingly fail.

IT IS ORDERED THAT:

The appeal being devoid of merit in its entirety be and is hereby dismissed with costs.

The arbitral decision confirming the Appellant’s dismissal is to stand.

KUDYA J

LABOUR COURT – HARARE

J Mambara & Partners, Respondent’s legal practitioners