Zimbabwe Farmers Union v Misheck Kanotunga

IN THE LABOUR COURT                          JUDGMENT NO. LC/H/53/2013

HARARE, 22 JULY, 2009                        CASE NO. LC/H/97/2008

In the matter between




ZIMBABWE FARMERS UNION                                  -        Appellant
And

MISHECK KANOTUNGA                                       -        Respondent




Before The Honourable B.T. Chivizhe: President
For Appellant     -      Mr. M. Mandevere – Legal Practitioner

                         Mbidzo, Muchadehama and Makoni.



For Respondent    -      Mr. Mufanebadza – Trade Unionist

                         Commercial Workers Union of Zimbabwe




CHIVIZHE, B.T.:


      The appeal is against an arbitral award handed down on 9 July 2008

wherein the Appellant was directed to reinstate Respondent without any

loss of pay and benefits with effect from the date of suspension or be paid

damages in lieu of reinstatement.



      The background facts are as follows;
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The Respondent was employed as an Operations Manager by African

Farmers Company (AFCOY) a subsidiary of the Appellant. The Respondent

was suspended in March 2003 following certain allegations of misconduct.

He was also facing criminal proceedings. There is a dispute between the

parties as to whether proceedings were convened by the Appellant. The

matter was referred to a Labour Officer who after failing to conciliate

referred the matter for compulsory arbitration. The terms of reference as

can be gleaned from the record were “to determine whether M. Kanotunga

was unlawfully suspended or not.”



      The Arbitrator after considering submissions by both parties

concluded that the suspension process was marred by irregularities. She

then directed Appellant to reinstate the Respondent without loss of pay and

benefits from the date of suspension failing which Respondent was to pay

damages in lieu of reinstatement.



      The Appellant has brought his appeal against this determination to

the Labour Court. The grounds of appeal are basically two; firstly that the

Arbitrator erred in deciding the matter purely on technicalities without

delving into the merits of the matter; secondly that the Arbitrator failed to

consider the evidence that was before her.      The rest of the grounds of

appeal seem to be a repetition of the second ground.



The issue at the centre of the dispute between the parties is whether the

Appellant did convene disciplinary proceedings or not.        The Appellant

submission is that it did convene disciplinary proceedings on 27 April, 2004


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after notification of such proceedings was served on Respondent’s legal

practitioners of the record then Messrs Mutezo and Partners; Respondent

was subsequently found guilty of the charges and dismissed in May 2004;

Respondent had later lodged a complaint of unfair dismissal to the Labour

Officer.



The Respondent’s position is that he was suspended on the 20 th of June,

2203. Thereafter the Appellant failed to convene disciplinary proceeding

within the statutory 14 day period.



      The Arbitrator came to a conclusion that the suspension process was

flawed the period having exceeded the stipulated period under the relevant

provisions that is Statutory Instrument 130 of 2003. She also dismissed

Appellant’s submissions that the disciplinary hearing had been convened on

the basis of lack of evidence of the notification of hearing and the

disciplinary minutes. On the basis of these fatal irregularities the Arbitrator

therefore ordered reinstatement from the date of suspension or in the

alternative damages in lieu of reinstatement if the employment relationship

was no longer tenable.



      The Arbitrator clearly did not err in her conclusions. It is clear from a

reading of the suspension letter that the Respondent was placed on an

indefinite suspension which suspension was hinged on the finalization of

the criminal proceedings. The suspension letter issued in March 2003 was

couched as follows;




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              “I hereby suspend you from conducting AFCOY business with immediate effect
      without prejudice to your conditions of service, until such a time when your court case is
      resolved.”


      The Arbitrator correctly observed that the Appellant had erred in

delaying to commence disciplinary proceedings until resolution of the

criminal proceedings as disciplinary proceedings are separate, independent

processes from criminal proceedings. She dismissed Appellant’s reasons for

delay in convening disciplinary proceedings. I cannot find fault any fault in

her reasoning and the conclusion reached that the suspension process was

flawed as a result.



      The Arbitrator also found that the disciplinary hearing was not

convened on the basis of lack of evidence of the notification of hearing and

the disciplinary minutes. Before the Labour Court, the Appellant attempted

to produce as exhibits the “notice of hearing” and the minutes of the

purported hearing held on 27 April, 2004 which documents were marked as

Annexure “A” and “B”. The Respondent objected to the production of the

documents on the basis that these had never been placed before the

Arbitrator. The court disallowed the production of these documents on the

basis that these documents were not produced before this Arbitrator. It was

not explained to my satisfaction why if indeed these documents were

available at the time they were not produced before the Arbitrator. Appeals

before the Labour Court in any event are confined to the record of

proceedings as placed before the Arbitrator. Consequently the Court cannot

make a finding based on these documents.                     The Appellant has in his

grounds of appeal referred to “other” evidence placed before the Arbitrator


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but no oral submissions were made in that regard by Appellant’s counsel. It

is clear therefore that the Arbitrator was correct in reaching the conclusion

that based on fatal irregularities committed by the Appellant that the

Respondent should be automatically reinstated. I would therefore dismiss

the second ground of appeal.



      The Appellant has also argued that the Arbitrator erred in deciding

the matter on technicalities only. The Arbitrator ought to have proceeded to

deal with merits. The Arbitrator was in my view entitled after coming to the

conclusion that fatal irregularities had been committed by Appellant to

order reinstatement. Reinstatement is after all the primary remedy where

an employer has committed a fatal procedural irregularity. See Mugwebie

vs Seedco 2000 (I) ZLR 99 (S). The Arbitrator however went further and

ordered that in the event of the employment relationship being no longer

tenable, the Appellant should in the alternative pay of damages in lieu of

reinstatement. This in my view is in line with the provisions in Section 89 (2)

(c) of the Labour Act where Labour Court and Arbitrators are enjoined, to,

where an order of reinstatement is made to specify the alternative in

damages. The Supreme Court has also in Zimnat Life Assurance Ltd vs

George Dikinya SC 30/10 stated that a failure by the Labour Court Judge to

order damages as an alternative to reinstatement shall amount to a

misdirection in law. I would therefore dismiss the first ground of appeal.



      There is one further issue.     The Appellant filed a supplementary

affidavit on the 29th July, 2009, attested to by the Appellant’s Property

Manager, a Mr Enock Bvumirayi Mashumba. Mr Mashumba stated under


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oath that the Appellant company is under liquidation and is therefore

unable to reinstate the Respondent should be appeal be dismissed. He

submitted that although the company has not gone through a formal

liquidation process no curator has been appointed and the company has no

assets existing. It is the prayer of the Appellant that the Court should in the

circumstances not direct the reinstatement of the Respondent.



         It is not clear from record the circumstances leading to the filing of

this supplementary affidavit. Although Mr Mashumba submitted that he

had been directed by the Court to file the affidavit by 22 July, 2009, the

record itself does not attest to this fact. On the contrary, the record shows

that on the 6th of July, 2009 when this directive is supposed to have been

granted, the Appellant was in default of appearance. The only thing that

barred a default order against the Appellant was the lack of proof of service

on it.      It is the Court’s finding that the Appellant having filed a

supplementary affidavit; after the matter had already been argued and

judgment reserved; without having obtained the Court’s leave to do so; the

supplementary affidavit is deemed inadmissible as it violates Rule 19 (6) of

the Labour Court Rules, Statutory Instrument 59 of 2006.

         In the event that I am wrong in taking this approach, the submission

being made on the Appellant’s liquidated status is in any event being made

to the wrong forum. Having concluded that the Arbitrator did not err it is

the duty of this Court to confirm his award. It is up to the Appellant to

present the evidence of its liquidated status before the next forum if it is still

so inclined.




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Accordingly it is ordered as follows:



   1. The appeal be and is hereby dismissed

   2. The arbitral award handed down on July 2008 is confirmed.




Mbidzo, Muchadehama and Makoni. – Appellant’s Legal Practitioner




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