Victoria Foods (Pvt) Ltd v Dorcas Kambani

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/393/16
HELD AT HARARE 12 MAY 2016
CASE NO
JUDGMENT
LC/H/393/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT LC/H/393/16

HELD AT HARARE 12 MAY 2016				CASE NO LC/H/531/15

& 23 JUNE 2016

In the matter between:

VICTORIA FOODS (PVT) LTD				Appellant

And

DORCAS KAMBANI					Respondent

Before The Honourable L M Murasi, Judge

For Appellant			Miss S Nyagura (Legal Practitioner)

For Respondent		Mr H Chitima (Legal Practitioner)

MURASI, J:

Respondent was employed by the appellant as a procurement executive.  For the sack of brevity the court will summarise the facts as follows.  During the currency of her employment, respondent filed certain grievances with the appellant.  These issues were deliberated upon by the appellant who dismissed them.  Thereafter the appellant instituted misconduct proceedings against the respondent.  Respondent declined to attend and the matter was heard in her absence.  She was found guilty and dismissed from employment.  The matter ended up in arbitration.  The first arbitration was before honourable Kabasa.  Appellant applied for the matter to be reviewed and the Labour Court ordered a re-hearing before a different arbitrator.  The matter was brought before arbitrator Mambara who found in favour of respondent.  Appellant has appealed against that decision.

Appellant’s grounds of appeal are as follows:

The arbitrator grossly misdirected factually a misdirection that amounts to a question of law by making a finding that respondent was unfairly dismissed when the charges against her were proved on a balance of probabilities.

The arbitrator grossly misdirected factually a misdirection that amounts to a question of law by failing to find that respondent waived her right to challenge the dismissal by absconding the hearing.

The arbitrator misdirected factually a misdirection that amounts to a question of law by making a finding that Joel Katsande and Dennis Mutungi had no right to assume jurisdiction when respondent did not attend the hearing to challenge same and there was no proof that they were biased.

The arbitrator misdirected himself at law (by) making a finding that there was no need to carry out a disciplinary hearing before the grievance proceedings had been completed when appellant has a right to discipline its employees where there is reasonable grounds that an act of  misconduct has been committed and appellant’s intention was not to get rid of the respondent.

The arbitrator misdirected himself at law by interfering with appellant’s discretion which was judiciously exercised.

Miss Nyagura for the appellant stated that she abided by the documents filed of

record.  She submitted that the arbitrator had not considered the merits of the case in the Disciplinary Committee’s hearing.  She further submitted that the record of that committee’s hearing showed that the allegations against the respondent had been proved on a balance of probabilities.  It was argued that respondent had clearly made up her mind not to attend the proceedings and that when the Disciplinary Committee began the proceedings, no report had been lodged with the Labour Office.    Miss Nyagura stated that the report was filed on 4 October 2010, the date of the hearing.  It was argued that the respondent should have attended the Disciplinary Committee’s hearing and raised the issues that she was now raising.  It was further submitted that the arbitrator had erred in interfering with the discretion of the appellant to dismiss the respondent when there was no evidence of a misdirection in this regard.

Mr Chitima for the respondent submitted that the decision of the arbitrator could not be faulted.  He stated that as far as the Terms of Reference placed before the arbitrator, the latter was correct in finding that the Disciplinary Committee did not have jurisdiction to preside over the proceedings.  Mr Chitima submitted that the finding by the arbitrator that some of the members of the Disciplinary Committee should not have presided over the matter as they had been part of the Grievance proceedings which had been initiated by the respondent was correct.  It was argued that they had been witnesses in the previous proceedings and had therefore pre-judged the matter.  Mr Chitima submitted that he supported the arbitrator’s finding that the respondent had been unfairly dismissed for lack of both procedural and substantive fairness.  It was also stated that it was improper for the Disciplinary Committee to disregard evidence placed before it by the respondent

In the first ground of appeal, appellant alleges that the arbitrator erred in making a finding that the respondent was unfairly dismissed when the charges against her were proved on a balance of probabilities.  It is pertinent to look at the arbitral award in order to determine what the findings in this regard were.  The arbitrator dwells at length on the fact that the respondent had made responses which were ignored by the Committee.  He also stated that the members who presided over the matter must have prejudged the matter.  In his analysis, the arbitrator does not refer to the minutes of the Disciplinary Committee.  The clear evidence on the record is that when charges were preferred against the respondent she declined to attend the hearing.  Respondent did not submit any responses to those charges.  This was confirmed by Mr Chitima during the oral submissions.  The arbitrator states that the Disciplinary Committee erred in not taking into account respondent’s earlier submissions in the Grievance hearing..  With respect, this was a clear misdirection.  The Disciplinary Committee could not have taken those responses as being respondent’s defence.  She had not formally informed the committee that she intended those responses submitted in a different forum to be part of her defence.  She had made a clear decision not to attend and waived her rights in the process.  These must be the consequences when a litigant makes a conscious decision to shun proceedings which he/she is aware of and has been invited to attend.  The facts show that the proceedings before the Disciplinary Committee preceded the filing of the complaint with the Labour Office.  It thus cannot be argued that when the Disciplinary Committee sat to deliberate on the matter there was a report pending at the Labour Office.  The facts also show that the proceedings before the Disciplinary Committee sat to deliberate on the matter when there was a report pending at the Labour Office.   That is an incorrect finding on the facts.

What is the effect of respondent’s non-attendance at the hearing?  It meant that her side of the story was not heard.  The issues that she now raised before the arbitrator were not before the Disciplinary Committee.  The arbitrator should have taken into account that what arguments he was being asked to consider by the respondent were not before the Disciplinary Committee.  What he was called upon to decide was whether, on the record of proceedings, the appellant was correct in finding the respondent guilt which justified her dismissal.  The fact that the hearing and the decision were made in her absence was of her own making.  I associate myself with the sentiments of CHEDA AJA in Robert Dombodzvuku & Anor v CMED (Pvt) Ltd S 14/11 which I quote extensively at page 7 and 8 of the cyclostyled judgment where he had this to say:

“The above record of the Hearing Committee shows very clearly that the appellants never refuted the allegations levelled against them.  They made several excuses to avoid their misconduct case being heard.  They were found guilty after they removed themselves from the hearing.  On review to the Labour Court they raised several issues which the Labour Court considered and dismissed.  They alleged that their main reason for objecting to the proceedings was the presence of certain on officials of the respondent the panel Mrs Madzorera in particular, who was only an investigator, and they were told that her presence was essential as she was familiar with the facts, having been investigator, and was to assist the panel with the information.

The appellants alleged the possibility of bias yet the record of the Hearing Committee shows that they walked out for different reasons.

Even if the objection to the presence of Mrs Madzokera was one of the reasons once their objections were over-ruled the committee was entitled to proceed.  There was therefore no breach of the audi alteram partem rule.  The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.

Worse still they left without responding to, or refuting the charges against them.  They declined the opportunity to put forward their defences to the allegations.  I find no fault in the Labour Court holding that the appellants waived their rights to be heard by walking out of the disciplinary proceedings.”

The issues that the arbitrator lays emphasis upon were those raised by the respondent post the Disciplinary Committee hearing.  These were supposed to have been raised before the Disciplinary Committee which would have dealt with them.  It is clear that the arbitrator was guilty of a misdirection when he pronounced that the committee had pre-judged the issue when he had not received any evidence to this effect.

I now turn to the minutes of the Disciplinary Committee.  The record shows that respondent’s immediate superior, one Webster Chinyoka presented the case as the complainant.  After outlining the facts, several witnesses were called to testify.  In the absence of any other evidence, their evidence was accepted by the Disciplinary Committee.  The record shows that the committee sought clarification where it felt the evidence was not clear.  Martin Ndenga from OLAM gave evidence which showed that it was respondent who had made decisions which had led to the prejudice that was eventually suffered by the appellant.  This Martin Ndenga did not work for appellant.  The committee also heard evidence from company employees who stated that two plants had to be temporarily shut down due to shortage of packaging material.  The procurement of this packaging material was respondent’s responsibility.  The Disciplinary Committee proceeded to find the respondent guilty on all the changes.  A reading of these minutes shows that the proceedings were conducted in such a manner that the committee heard the evidence which pertained to the allegations levelled against the respondent and came to a decision.  It is my view that no fault can be apportioned to the committee.  The arbitrator raised the issue that the committee had pre-judged the matter.  As stated elsewhere in this judgment, there is no such evidence to support such a finding.  It is my view, having regard to the observations above, that the evidence adduced showed, on a balance of probabilities that respondent was guilty of the charges levelled against her.  I have also dealt with the issue of respondent’s non-attendance at the Disciplinary Committee in that she had waived her rights in this regard.  The appellant’s first two grounds of appeal must be allowed on this score.  I have also commented on the fact that there was no evidence to show that the persons who presided over the Disciplinary Committee were biased.  The findings of the arbitrator in this regard were not based on any evidence.  As alluded to the findings were made post the hearing and the allegations of potential bias had not been brought before the committee to “react” to them during the proceedings.

It is my view that the ground of appeal must be allowed as the arbitrator made such a finding which was not based on the record of proceedings.  The ground of appeal must be allowed.

I now turn to the issue of dismissal.  The arbitrator stated that the dismissal was unfair and stated thus:

“In this matter the misdirections are clear.  There was no need to carry out a disciplinary hearing before the grievance proceedings had been completed.   Joel Katsande and Dennis Mutungi were non suited to preside over the disciplinary hearing after having presided over the grievance hearing.  There was a clear plot to get rid of the claimant.”

The arbitrator clearly misses the point.  The decision to dismiss the respondent was a result of her being found guilty of the misconduct charges levelled against her.  The arbitrator was enjoined to consider and determine whether on the record of the proceedings before the Disciplinary Committee, the appellant was entitled to dismiss the respondent.  The arbitrator does not refer to those proceedings.  The respondent was not dismissed as a result of the grievance proceedings but the disciplinary hearing which she chose not to attend.  It is trite that the giving of bad reasons for arriving at a conclusion amounts to not going any reason at all.  Where litigants have presented their competing facts and arguments before a tribunal, they have a legitimate expectation to know whether their version of the facts has been received and if not, why.  In casu, the dismissal of the respondent was anchored on the Disciplinary Committee’s findings.  The arbitrator does not consider the merits and demerits of that hearing.  It is my view that the issue of whether respondent’s dismissal was unfair was to be determined by considering the minutes of the Disciplinary Committee.  This the arbitrator did not do.  He fell into error.  I have already referred to the minutes of the hearing and the witnesses called to give evidence.  The charges that respondent was facing were fairly serious.  The issue is whether a reasonable court would have reasonably dismissed the respondent in the circumstances.  It is trite that an appellate court will hesitantly interfer with the discretion of the employer to dismiss an employee unless there is evidence that the discretion was exercised unreasonably.  (See Innscor Africa (Pvt) Ltd v Letron Chimoto S 6/12.)  It is my considered view that there is no evidence to show that appellant exercised this discretion unreasonably.  A reasonable employer would have reasonably dismissed the respondent in the circumstances.  This ground of appeal must be allowed.

In the result and for the aforestated reasons, the court is of the view that the appeal is with merit and ought to be allowed.

The court makes the following order:

The appeal, being with merit, is allowed.

The arbitral award of Honourable Mambara be and is hereby set aside.

The decision of appellant’s Disciplinary Committee finding the respondent guilty and culminating in her dismissal be and is hereby upheld.

Each party to meet its costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners