Vongai Chiwaridzo v TM Supermarkets

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/444/2012
HELD AT HARARE ON 09 NOVEMBER, 2011
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      	      JUDGMENT NO. LC/H/444/2012

HELD AT HARARE ON 09 NOVEMBER, 2011		   CASE NO. LC/H/43/2011

AND 27TH SEPTEMBER, 2013

In the matter between:-

VONGAI CHIWARIDZO				-	Appellant

And

TM SUPERMARKETS				-	Respondent

Before The Honourable B.T Chivizhe: President

For Appellant 	-	Mr. R. Matsikidze (Legal Practitioner)

For Respondent 	-	Mr. G. V. Mamvura (Legal Practitioner)

CHIVIZHE B.T.:

This is an appeal against an arbitral award handed down on 17 January 2011 in which, after finding that the Appellant’s suspension was a nullity the Arbitrator directed that the Appellant be reinstated without loss of salary and benefits from the date of suspension i.e. 8th September 2010. The Respondent was deviated to, at its discretion, commence fresh disciplinary proceedings in accordance with Statutory Instrument 15 of 2006.

The relevant background facts are as follows;

The Appellant was employed by the Respondent as Finance Director. She was on the 8th of September 2010 served with a letter of suspension effective on the same date. She was arraigned before a disciplinary authority facing two charges under section 4(a) Statutory Instrument 15 of 2006 i.e. “any act of conduct or omission inconsistent with the fulfillment of the express or implied conditions of the claimant’s contract.” On the first charge it was Respondent’s allegation that the Appellant failed to draw up contracts for hired contractual workers prior to their engagement only doing so seven weeks later thereby exposing the company to possibility of having to engage the same workers as permanent employees. The Appellant had also according to the Respondent been instructed to employ those same persons through Human Resources Department but she had disregarded the instruction and employed the ten employees without the input of Human Resources Department.

On the second charge it was Respondent’s allegation that the Appellant had indicated her gross salary to be US$16 000 instead of US$12 000 in an application for a loan from CABS. This she had done in order to construct a gross salary applicable to the 25% on the gross pay limit. The Appellant was found guilty of both charges and consequently a penalty of dismissal with effect from 29 October, 2010 was imposed. The Appellant then referred the matter for conciliation on November 1, 2010. When conciliation failed the matter was referred for compulsory arbitration. The issues were identified to be as follows;

To determine whether or not the suspension of the claimant was lawful.

Whether or not the employee was properly found guilty of the misconduct charges preferred against her.

What is the appropriate remedy?

A concession was made by the Respondent before the Arbitrator that as the Appellant had not been heard in mitigation before the penalty was imposed by the Disciplinary Authority the dismissal penalty could not stand. The penalty was consequently set aside. The Arbitrator after considering submissions by both parties then issued an award in the following terms

The Honourable Arbitrator grossly erred at law in not finding that the evidence on record of disciplinary proceedings clearly points to a case of unfair dismissal as the alleged misconducts are no misconducts at all and cannot constitute dismissible offence if indeed they were misconducts.

Dissatisfied with the award the Appellant then lodged the present appeal against that award. The grounds of appeal as filed and later amended by way of notice on 7 February 2011 are as follows;

The Honourable Arbitrator erred at law in failing to make an alternative order for damages at law in the event reinstatement is no longer tenable. This is being more pertinent in this case where the Respondent is cosmetically reinstating Appellant to commence disciplinary proceedings in order to get rid of her.

The Honourable Arbitrator erred at law in giving a leeway for the Respondent to reinstitute disciplinary proceedings when clearly from the record, it is clear that:-

Parties had already fully made submissions before the Arbitrator and the Arbitrator had since analysed the facts, of the merits of the matter and what was left was for him to make an award on the issues.

There was no offence committed in this matter.

There was no mitigation considered in this matter as a result of clear decision made prior the hearing that the Appellant was to be dismissed.

There was clear evidence that, Appellant was being targeted as a black employee who was occupying a position that the white minority in TM Supermarkets should occupy.

No other outcome was expected to the hearing done because the Applicant was and is viewed as an undesirable element, who advances the cause of black employees under her department, and should be dismissed.

The Honourable Arbitrator grossly erred at law in not finding that the evidence on record of disciplinary proceedings clearly points to a case of unfair dismissal as the alleged misconducts are no misconducts at all and cannot constitute dismissible offence if indeed they were misconducts.

Although there seem to be a number of issues raised in this appeal in my view there are three main issues to be considered:

The Appellant has in her first ground of appeal attacked the Arbitrator’s award on the basis that the Arbitrator failed to provide in order for reinstatement for an alternative order for damages in lieu of reinstatement. The submission is premised on the Appellant argument that the Respondent had in the face of a defective suspension process proceeded to arraign the Appellant before a Disciplinary Authority and consequently imposed a dismissal penalty. It was Appellant’s contention therefore that the Arbitrator should have gone beyond the suspension letter which he ordered to be uplifted and addressed the dismissal penalty. Once he had addressed that issue the Arbitrator would have been forced to in the relief grant an order for reinstatement or in the alternative damages in lieu of reinstatement.

The Respondent in counter-argument submitted that the Arbitrator did not err at law. The Arbitrator having come to a conclusion that the disciplinary proceedings were a nullity due to a defective suspension letter he then ordered the Appellant’s reinstatement without any loss of salary and benefits. The Arbitrator would have had no legal basis to award in the alternative, damages in lieu of reinstatement.

The question as to whether the Appellant’s suspension was valid was the first issue placed before the Arbitrator. The Arbitrator in addressing the issue observed that the suspension letter did not comply with the provisions in Section 6(1) of Statutory Instrument 15 of 2006 in that the letter did not specify reasons and grounds of suspension. The Arbitrator then correctly in my view concluded that in view of the employer’s breach the Appellant suspension was a nullity and that any subsequent proceedings were (of no force or effect) invalid. The Arbitrator aptly referred to the case of Mugwebie vs Seed Co & another 2000 (1) ZLR 99(S). The Arbitrator consequently issued an award in the terms as referred to supra:

“I do order that;

With immediate effect the employee’s suspension and she be reinstated without loss of salary and benefits (if not already paid) from the date of suspension 8th September 2010.

If and when the employer feels the employee has a case to answer, they implement the correct disciplinary process, according to Statutory Instrument 15 of 2006 (National Employment Code of Conduct) for use.”

In the court’s considered view the approach taken by the Arbitrator was the correct one. Having declared the suspension a nullity it meant that everything that followed the suspension fell away. The Arbitrator was duty bound to order the immediate reinstatement of the Appellant without any loss of salary and benefits.

The Arbitrator could not have ordered in the alternative damages in lieu of reinstatement as the primary relief that was available having found that the employer had committed a fatal procedural irregularity was immediate reinstatement.

The Arbitrator also could not have proceeded to deal with the issue on the merits as effectively everything that followed after suspension was rendered invalid. In other words by his order he wiped the slate clean. He could not address the disciplinary hearing nor the penalty as those processes had been rendered invalid.

The Appellant has also challenged the second part of the operative part of the Arbitrator’s award. The contention was made that the Arbitrator should not have directed the Respondent to, at its discretion, conduct second hearing. The Respondent’s view is that even if the Arbitrator had not suggested in his order that the Respondent could implement the correct disciplinary process the Respondent was not barred at law from proceeding to conduct a fresh disciplinary hearing in the circumstances.  It was open to the Respondent as the employer to at its discretion commence fresh disciplinary proceedings.

The Respondent relied for this contention on the matter of Stephen Mackenzie vs Rio Tinto Zimbabwe SC 144/04. I cannot agree more with the Respondent’s submission. The Respondent, whether it was explicitly stated in Arbitrator’s award or not, always had the option to, once it had addressed the procedural irregularity, proceed with a fresh disciplinary hearing.  This the Respondent did.

The Appellant has also challenged the conviction on the charges.  She was facing two counts of contravening Section 4© of the nation Code, Statutory Instrument 15 of 2006 that is;

“Any act of conduct or omission in consisted with the fulfillment of the express or implied conditions of the Claimant’s conduct”

Bearing in mind the facts which are largely common cause there is no doubt the Appellant was properly convicted on both counts.

The Appellant was employed as a Finance Director.  She has not proffered any meaningful defence to the first charge that she had failed to timeously draw contracts for hired contractual workers.  On the second count I am satisfied that by her conduct of inflating her gross salary in an application for a loan she committed an act inconsistent with the implied conditions of her contract of employment.  She had as Finance Director a duty of faith not to be involved in dishonesty that may result in tarnishment of her employer’s image.  That duty she cleared violated.  See for example Standard Chartered Bank vs Matsika SC 125/2004.

In the premise the appeal clearly is without merit. It is consequently dismissed with costs.

Matsikidze and Mucheche – Appellant’s Legal Practitioner

Scanlen and Holderness – Respondent’s Legal Practitioner