Zimbabwe Broadcasting Corporation (Pvt) Ltd v Walter Mufanochiya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/33/2016
HARARE, 2 APRIL 2015 &
22 JANUARY 2016
CASE NO LC/H/397/2014
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IN THE LABOUR COURT OF ZIMBABWE	           JUDGMENT NO LC/H/33/2016

HARARE, 2 APRIL 2015 &				        CASE NO LC/H/397/2014

22 JANUARY 2016

In the matter between

ZIMBABWE BROADCASTING					APPELLANT

CORPORATION (PVT) LTD

Versus

WALTER MUFANOCHIYA					RESPONDENT

Before The Honourable E Makamure J

For the Appellant	A Muchandiona (Legal Practitioner)

For the Respondent	Miss L Shambamuto (Legal Practitioner)

MAKAMURE J:

This is an appeal against an arbitral award wherein the Learned Arbitrator ordered the appellant to reinstate the respondent with no loss of salary with an alternative order for damages should reinstatement be no longer possible.

The facts of this matter are as follows:

The appellant company’s managerial employees formed a union called the Managerial Credit Union (MCU). The respondent was chairman of that union. It had its own constitution which governed its operations. The appellant was MCU’s guarantor with their bankers, CBZ Bank. Its (the appellant’s) Chief Executive Officer (CEO) was the patron of MCU. The respondent abused the union’s funds. He admitted his guilt and the MCU dealt with him according to its terms of reference.

The appellant then commenced disciplinary proceedings against the respondent. Before the disciplinary proceedings were concluded, the matter was referred to a labour officer in terms of section 101 (6) of the Labour Act [Chapter 28:01] (“The Act”). Following the issuance of a certificate of no settlement, the matter was referred to arbitration.

The Learned Arbitrator as noted above ordered the appellant to reinstate the respondent.

The appellant was aggrieved by the arbitral award and appeals to this court on the following grounds:

“1.	The arbitrator erred and misdirected himself on a point of law in holding that the matter was properly referred to him in terms of section 101 (6) of the Labour Act [Chapter 28:01]. There was no legal basis for ousting the jurisdiction the Appellant’s Disciplinary Committee in terms of the registered Code of Conduct.

2.	The Arbitrator erred and misdirected himself on a point of law in holding that the appellant had no locus standi to prefer disciplinary charges against the respondent when it was quite clear from the evidence placed before him that the ZBC managers and its union accessed a loan from CBZ Bank Limited on the basis of a guarantee which was provided by the appellant. The Arbitrator’s decision in this regard was so grossly unreasonable in its defiance of logic that it could only have been arrived at on the basis of a serious misdirection.

3.	The arbitrator erred and misdirected himself on a point of law in purporting to make factual findings to the effect that the respondent was not guilty of offences with which he was charged. Such findings were grossly unreasonable in that the respondent himself never disputed the allegations on the merits and in any event the issue of whether or not the respondent was guilty of the offences was never part of the Arbitrator’s terms of reference. It was agreed by the parties that the respondent had no valid defence on the merits.”

It is clear the Learned Arbitrator determined that the appellant had lost jurisdiction to deal with the matter. He therefore proceeded to deal with the merits of the matter.

The issue of whether or not the matter was properly before the arbitrator forms the basis of the appellant’s first ground of appeal. At page 198 of the record, it shows that the respondent was notified to attend proceedings on 25 September 2012. The matter was referred to a labour officer on 3 October 2012. A hearing which was supposed to take place on 4 October 2012 was objected to by the respondent’s legal practitioners.

Section 101 (5) and (6) of The Act provide as follows:

“(5)	Notwithstanding this part, but subject to subsection 6, no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment Code, nor shall he intervene in any such proceedings.

(6)	If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such a matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.” (my underlining)

Section 101 (3) provides:

“(3)	An employment Code shall provide for-

….

….

….

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The notification to any person who is alleged to have breached the employment Code that proceedings are to be commenced against him in respect of the alleged breach”. (my underlining)

It is clear that when the matter was referred to arbitration, thirty days had not elapsed from the date of “notification” to attend the proceedings. The operative word here is when the respondent was notified to attend the disciplinary proceedings. Indeed investigations were carried out into the matter. It was only after investigating the matter that the respondent was required to attend the proceedings. While issues may arise on how long the investigations took, the issue is that when the respondent was “notified” is when the time started running. Further the Supreme Court has stated that one cannot escape guilt unless they are innocent. In Air Zimbabwe (Pvt) Ltd v (1) Chiku Mnensa (2) Mavis Mwarweye SC 89-04 the Supreme Court stated:

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

The appellant cannot lose jurisdiction to discipline its employee when in essence the operative period required for it to lose jurisdiction had not passed. I believe that the reference to arbitration was done prematurely.

Those proceedings ought to have been completed. If there was need to have the matter referred to arbitration, that should have happened later.

In the present matter the appellant avers that it has authority as the employer to charge the respondent. It has a Code of Conduct. The provisions of that were invoked. They ought to have been complied with to finality. I therefore agree with the appellant that the matter was improperly placed before the arbitrator. Since the matter was improperly before the Arbitrator, the determination of the second ground of appeal falls away. As regards the third ground of appeal, the facts of the matter are common cause. The parties themselves were in agreement that the respondent had committed the misdemeanours in question. Further the guilt or innocence of the respondent did not constitute part of the terms of reference which were before him. It is an established principle of our law that a court cannot determine an issue which is not before it. In C Kambuzuma & Twenty-two Ors v The Athol Evans Hospital Home Complex SC 118-04, the Supreme Court stated:

“The allegation that the Committee had conducted a mass hearing was not one of the grounds on which the workers relied when they appealed to the Tribunal against their dismissal. Consequently, when the appeal was later heard by the Labour Court, that court did not deal with it, and cannot be faulted for not doing so” (Emphasis added).

The Learned Arbitrator therefore acted outside his terms of reference when he considered an issue that was not placed before him by the parties.

Accordingly the arbitral award granted by Honourable P Bvumbe dated 22 April 2014 is hereby set aside.

The matter is referred back to the employer for the employer to discipline the respondent in terms of the applicable Code.

Danziger & Partners, appellant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners