Takesure Mudiwa v Chitungwiza Municipality

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/285/2016
HARARE, 17 MARCH 2016 &
CASE NO LC/H/42/2016
6 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/285/2016

HARARE, 17 MARCH 2016 &				           CASE NO LC/H/42/2016

6 MAY 2016

In the matter between

TAKESURE MUDIWA							APPELLANT

Versus

CHITUNGWIZA MUNICIPALITY					RESPONDENT

Before the Honourable P Muzofa J

For the Appellant	In Person

For the Respondent    T Marume (Legal Practitioner)

MUZOFA J:

This is an appeal against an arbitral award made in favour of the respondent.

The facts of the case are not in dispute. The appellant was employed by the respondent as a Chief Internal Auditor. According to the appellant on 6 February 2012 he was suspended for contravening the respondent’s Code of Conduct. It was alleged that the appellant wilfully lost council property and secondly for engaging in behaviour likely to harm the financial position of the council.

On 28 February 2012 the appellant appeared before a disciplinary committee. Both parties presented their cases and on 29 February 2012 the disciplinary committee withdrew the charges against the appellant and reinstated him.

On 2 March 2012 the appellant reported for duty. He was suspended on allegations of misconduct similar to the previous ones. The respondent failed to have the matter heard within thirty days. The appellant subsequently referred the matter to a labour officer.

At conciliation before the labour officer parties agreed to the following:

That the appellant be paid his salaries and benefits up to the date of the second suspension;

That the second suspension remain operational until the finalisation of the matter by the arbitrator; and

That the arbitrator shall address the merits of the matter neither party was precluded from raising technical issues.

The arbitrator found the appellant liable and dismissed him from employment.

The appellant set out three grounds of appeal in that:

The arbitrator grossly erred by not setting aside the dismissal of the appellant after making the finding that the matter was res judicata and therefore there was nothing to decide upon.

The arbitrator grossly erred at law when, without proof he made a finding of guilt.

The arbitrator failed to apply his mind to the issues before him and as a result made a decision which no reasonable court would have made under the same circumstances.

Clearly the third ground of appeal does not raise any issue for consideration. It was a bare allegation not grounded on any basis. The court will therefore not address the third ground of appeal.

The issue for consideration raised in the first ground of appeal is whether the arbitrator made a finding that the matter was res judicata.

The ground of appeal clearly is based on a misconception of the facts by the appellant. The appellant was not dismissed by the respondent so there was no issue of setting aside the dismissal of the appellant. The second misconception stem from the proceedings before the arbitrator.

Before the arbitrator the appellant did not raise the issue as to whether the matter was res judicata or not. The appellant’s issue was that the respondent’s Code of Conduct did not provide for withdrawal of charges after a full enquiry. To that extent the respondent should have made a determination on the guilt or otherwise of the appellant. This issue is certainly different from a plea of res judicata.

The respondent did not address the arbitrator on the plea of res judicata.

In essence whether the matter was res judicata or not was not an issue before the arbitrator. The arbitrator only referred to it meru moto as a plea that could have been relevant to the appellant’s defence. I should quote verbatim what the arbitrator said on page 15 of the record he said:

“The claimant (appellant herein) could have had a good argument to the effect that the matter is res judicata since it had been fully heard by a Disciplinary Tribunal under a Code which led to an unconditional reinstatement. Unfortunately, I cannot entertain this argument because the parties in their wisdom did not agree to have this as part of the issues referred to me for arbitration” (underlining for emphasis)

The arbitrator’s sentiments do not require canons of interpretation. The arbitrator despite having raised that the plea of res judicata could have been a good argument correctly noted that it was not an issue before him for determination. The record reflects that the arbitrator commented on the issue but did not make a finding on it.

It is a trite principle of our law that a tribunal cannot be faulted for not dealing with a matter that it was not asked to deal with. See S T Chitanda v United Touring Co Ltd SC 7-99.

Following that reasoning the appellant cannot successfully raise the issue that the arbitrator made a finding that the matter was res judicata. He did not. The arbitrator was only asked to consider the merits of the case. He was bound by those terms.

This court cannot in turn even consider whether the matter was res judicata as invited by the appellant. The issue was not determined upon and therefore beyond this court’s scope.

The first ground of appeal should therefore be dismissed it has no merit at all.

The second ground of appeal is that there was no proof to prove the charges against him. This is clearly a question of fact. This court sitting as an appeal court can only determine an appeal on questions of law.

A question of law has been defined to include questions of fact where the findings on facts are grossly unreasonable. This court therefore can only upset the findings of fact by the arbitrator if the exercise of such discretion was irrational on the evidence placed before him. In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 at p 670 KORSAH JA had this to say on the issue.

“The general rule of law as regards irrationality is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

Where a court has to determine whether there was proof, the standard of proof in such cases is on a balance of probabilities only. The test is not similar to criminal proceedings where proof has to be beyond a reasonable doubt.

The undisputed facts before the arbitrator were that the appellant had the book and files containing internal vouchers for the period 2009 to 2010 at some point. When these documents were sought for the appellant could not account where they were. The respondent indicated that the appellant gave conflicting statements on the whereabouts of the documents. I must say that it would appear despite the reference to documents the charge eventually zeroed on one book.  At first the appellant claimed he returned the book to main accounts and later he claimed he could not locate the book in his office. According to the respondent it was only before the arbitrator that the appellant claimed he handed the book to the then Town Clerk one Mr Tanyanyiwa.

The arbitrator in my view correctly found that the appellant failed to satisfactorily explain where the book was. Before the arbitrator the appellant did not deny that he gave conflicting explanations as to the whereabouts of the book.

The appellant tried to explain why he misled the respondent initially by claiming he could not locate the book. The arbitrator did not believe the explanation. The court in turn has no reason to interfere with the arbitrator’s findings on this aspect.

Clearly the book went missing in the custody of the appellant. The appellant could not give a credible explanation.

The appellant also argued that the missing book was not an important book of accounts of the respondent. In my view once an employer defines important any of its property. It is not for the court to define otherwise. The court has no business setting out what is important or not important to an employer.

It was also argued by the appellant that there was no motive in the wilful loss. The book was handed over to the Town Clerk who was actually convicted for the crime. This is irrelevant, the appellant did not prove before the arbitrator that the said Town Clerk was convicted for wilful loss of the same book. In any event even if he did the appellant’s conduct remained a misconduct since his conduct would have abetted the loss of the said book.

The second ground of appeal has no merit and is dismissed.

From the foregoing clearly the appeal cannot succeed. Accordingly the following order is made:

The appeal be and is hereby dismissed.

The appellant’s dismissal is hereby confirmed.

Matsikidze & Mucheche, respondent’s legal practitioners