Trauma Centre V Brighton Rwapunga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/75/2013
HELD IN HARARE, MARCH 5, 2013
CASE NO. LC/H/110/12
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/75/2013

HELD IN HARARE, MARCH 5, 2013		CASE NO. LC/H/110/12

In the Matter Between

TRAUMA CENTRE					       	APPELLANT

And

BRIGHTON RWAPUNGA			       		RESPONDENT

Before The Honourable E. Makamure         : President

FOR THE APPELLANT     		: Mr T.B. Zishiri (Human Resources Manager)

FOR RESPONDENT		  	: Mr Nkomo (Legal Practitioner)

MAKAMURE E.,

The respondent was dismissed by the appellant.  In so dismissing the respondent, the appellant did not follow the provisions of the applicable code - The National Code of Conduct Statutory Instrument 15 of 2006.  The respondent was aggrieved by the dismissal and the manner in which the dismissal was done.  He pursued the dispute resolution system.  The matter was conciliated upon without yielding the desired results.  The matter was referred to arbitration.  The issues for arbitration were:

Whether or not the matter was referred on time to the Labour Officer.

Whether or not Mr Rwapunga was unfairly dismissed.

Whether or not the matter is properly before a labour officer.

Whether or not the employer committed an unfair labour practice.

Whether or not the labour officer can refer the matter to compulsory arbitration.

The parties were legally represented when the matter was referred for arbitration.  The legal practitioners concerned agreed that the matter be resolved by the arbitrator after both parties had made their written submissions.  The agreement appears on page 40 of the record.

The Learned Arbitrator then proceeded to consider the papers but felt that cross examination was necessary and called for a hearing.   The respondent’s lawyer was present.  However, efforts to contact the appellant or its legal practitioners of record yielded no positive results.  As a result, the matter was heard in the absence of the appellant’s representatives.  The Learned Arbitrator recorded his efforts to effect service on the appellant on the following words:

“The defendant legal representative was contacted but said he no longer represents Trauma Centre.  Efforts were made to conduct (sic) Trauma Centre but ownership was said to have changed, Africa Medical Investments now operates the hospital as a new employer, not taking over from Trauma Centre.  Faced with such a predicament the arbitrator had no option but to issue the award under such circumstances.”

Thereafter, the arbitrator proceeded to make factual findings and made an award in favour of the respondent.  The appellant was aggrieved by the award and appealed to this Court on the following grounds:

“1.	The Arbitrator erred on a point of law in failing to give the respondent an opportunity of cross examining witnesses.

2.	The Arbitrator erred on a point of law by failing to identify the actual respondent at the time of arbitration and in a way that explains why the arbitrator failed to notify the same respondent to attend the hearing.

3.	Against the provisions of Section 16 Chapter 28:01 the arbitrator illegally and stubbornly dictated and exonerated the African Medical Investments from obligations which they should have solved on their own as they had taken over Trauma Centre at that time.

4.	The Arbitrator erred on a point of law in holding the dismissal as unfair when all disciplinary action taken was procedural within the context of the law.”

When parties addressed the Court, Mr Zishiri who appeared on behalf of the appellant only made reference to the first ground of appeal.  Mr Zishiri clarified the position of the appellant in that while there was a change in the name, nothing else changed and therefore the responsibility of the appellant was not affected by the name change.  His stance was that they were not given a chance to be heard.  The rest of the grounds were not argued.  Mr Nkomo who appeared for the respondent submitted that since the other grounds were not argued, they were abandoned.  I associate myself with that view.

What is important to note is that parties had agreed that the matter be decided on the papers.  On that basis my view is that this was a judgment by consent.  Parties had agreed to be bound by the Learned Arbitrator’s determination.  This means that the appellant cannot appeal against the determination (See Phibeon Chawatama v United Touring Company SC 99/04).

It is trite that disciplinary proceedings do not carry the rigorous standards of courts of law.  The rules of natural justice require that the tribunal acts according to the common sense precepts of fairness.  (See Smith Chataira v Zimbabwe Electricity Authority SC 83/2001).   In the present case it is clear that the Learned Arbitrator acted according to the common sense standards of fairness.  I therefore hold the view that the written statement of defence which was submitted on behalf of the appellant is clear testimony that the audi alteram partem  rule was observed.

There is therefore no merit in the appeal.

Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.

Department of Human Resources, Representative for the Appellant.

Donsa Nkomo and Mutangi Legal Practice, Legal Practitioners for the Respondent.