Tanaka Ventures v John Goro

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/209/2014
HARARE, 27 MARCH 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/209/2014

HARARE, 27 MARCH 2014		           	        		      CASE NO. LC/H/865/13

& 11TH APRIL 2014

In the matter between:-

TANAKA VENTURES					Appellant

And

JOHN GORO						Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mr. S. Mukubvu (Executive Director)

For Respondent		Ms. L. Makuzva (ZCHWU)

MAXWELL J:

This is an appeal against a determination by honourable Mambara J dated 30 September 2013.  The Arbitrator ordered the reinstatement of Respondent without loss of salary and benefits.  If reinstatement is no longer an option damages in lieu of reinstatement were to be paid.  The parties were to agree on the quantum failing which either party may approach the tribunal for quantification.  Each party was to pay 50% of the arbitration costs.

Appellant was aggrieved and approached this court on the basis that the determination was flawed as it was based on unsubstantiated evidence.  Appellant alleged that the arbitrator based his decision on documents that were submitted by Respondent at a time when Appellant no longer had a right of reply Appellant disputes the authenticity of the documents and alleges that if it had had knowledge of that documents as per the proposed timeline, it would have requested for an oral hearing to contest the contents of the documents.

In the pre-arbitration award the following timeline was set.

Claimant was to file the statement of claim and serve on the Respondent and arbitrator on Friday 6 September 2013.

Respondent was to file statement of defence and serve on Claimant and arbitrator by Friday 13 September 2013.

Claimant was to file replication on 17 September 2013.

Any party needing an oral hearing was to advise the arbitrator before end of day on 18 September 2013.

Appellant was in default at the pre-arbitration hearing.

Respondent was employed by Appellant since October 2010.  It is in dispute in what capacity he was employed.  Appellant alleges he was employed as a general hand whilst Respondent alleges he was part of the canteen staff operating as a kitchen porter and waiter.  Sometime in January 2011 Respondent was suspended for disrespectful conduct towards one of the Directors.  He was charged under section 4 (a) of the Labour (National Employment Code of Conduct) Regulations SI 15 OF 2006.  A hearing was held resulting in Respondent’s dismissal.  On appeal the proceedings were quashed and a re-hearing ordered.  Respondent was reinstated without loss of salary and benefits pending the re-hearing.  A second hearing was held.  Respondent was denied representation by the Zimbabwe Catering and Hotel Workers Union (ZCHWU).  He was found guilty and was dismissed.  Respondent alleges that he noted an appeal which was ignored by Appellant.  He alleges that he referred the matter to the National Employment Council and Ministry of Labour and Social Welfare culminating in the arbitration process whose award is subject of this appeal.  Appellant alleges that Respondent did not exhaust domestic remedies.  Instead of appealing internally he approached the national Employment Council.

The arbitrator dealt with the matter without the record of proceedings.  In my view that was an irregularity.  Appellant submitted that Respondent furnished the Arbitrator with the purported letter of appeal on 18 September 2013.  As such Appellant did not have opportunity to interrogate the late submission or even request for an oral hearing.  Appellant sought to rely on documents that were not presented to the Arbitrator in discrediting the letter of appeal.  The Arbitrator states:

“I also found as a fact that an appeal dated 8 March 2012 was addressed to the Respondent’s Managing Director.” (page 2 of award)

The arbitrator also stated on page 3 of the award.

“The record of proceedings was not furnished to enable me to assess whether or of the claimant was unfairly dismissed.  The Respondent avers that, The Designated Agent was very clear in her reasons for coming up with her determination.  There is no judgment furnished and therefore no reasons for the determination are available.”

On page 4 of the award the Arbitrator states;

“Once the question of the fairness or otherwise of the decision cannot be answered then the benefit of the doubt should work in favour of the claimant.”

The question that exercised my mind is whether or not the Arbitrator was correct in giving the Respondent “the benefit of the doubt” and ordering his reinstatement.  In my view, his reinstatement implies a finding that he is innocent of the charge of misconduct laid against him.  The Arbitrator said he could not assess whether or not the Respondent was unfairly dismissed.  His award should therefore have facilitated his being able to make that assessment.  The Chief Justice has stated that;

“A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee.  He should escape such consequences because he is innocent.”

See Air Zim (Pvt) Ltd v Chiku Mnensa & Anor SC 89/04

The Arbitrator should have demanded the record of proceedings that was not furnished to him.  Appellant has submitted that the documents availed to the Arbitrator by Respondent when the replication was submitted necessitated an oral hearing.  The justice of the case demands that Appellant be afforded an opportunity to interrogate the submissions by the Respondent which Appellant claims were out of time.  I am inclined to remit the matter for a fresh hearing before an arbitrator.  The question that follows is what would be the position regarding the Respondent?

The Supreme Court has dealt with a Similar situation in the case of Standard Chartered Bank of Zimbabwe Limited v J. Chikomwe & 211 Others SC-77-2000.  In that case it was held that the Respondents would revert back to the position they occupied prior to the proceedings that were being challenged.  In this case the Arbitrator stated that he could not assess whether or not the Respondent was unfairly dismissed.  To that position Respondent reverts.

Accordingly the appeal is allowed.  The arbitration award of 30 September 2013 is set aside.  The matter is remitted for rehearing before a different arbitrator.  The Respondent remains dismissed pending the rehearing.

There is no order as to costs.