Zimbabwe German Society v Claire Shambira

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/116/14
HELD AT HARARE ON 19TH NOVEMBER, 2013
CASE NO. LC/H/260/13
And 14TH MARCH, 2014
JUDGMENT NO LC/H…./14
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IN THE LABOUR COURT OF ZIMBABWE		 JUDGMENT NO LC/H/116/14

HELD AT HARARE ON 19THNOVEMBER, 2013 		CASE NO. LC/H/260/13

And 14thMARCH, 2014

In the matter between

ZIMBABWE GERMAN SOCIETY				Appellant

And

CLAIRE SHAMBIRA						Respondent

Before The Honourable L.F. Kudya : Judge

Appellant:	Mr A. Chagonda (Legal Practitioner)

For Respondent :	Mr S. Hashiti (Legal Practitioner) with

C. Tawanda (Legal Practitioner)

KUDYA. J

This matter involves 2 appeals which were consolidated for ease of reference during their argument.  These pertain to an appeal against an arbitral award and an appeal against a quantification of that arbitral award. The parties are the same and the labour dispute is the same which gave rise to the decisions now under appeal.

Facts of the matter are that Respondent/employee was charged with misconduct following her elevation to a higher post which she failed to act in to the satisfaction of the Appellant/employer. A disciplinary committee was set up. It deliberated her matter and found her guilty of the misconduct complained of. Consequently it dismissed her from employment. Aggrieved by her dismissal, Respondent approached the Arbitrator. At Arbitration the Arbitrator ruled in Respondent’s favour and reinstated her. The reinstatement order provided in the alternative that the employer could pay her damages in place of reinstatement. The quantum of damages had to be agreed upon by the parties failing which either party could approach the Arbitrator for quantification. Indeed no agreement on quantum was reached by the parties. Respondent went back to arbitration for quantification. Arbitrator awarded the Respondent back pay, damages in place of reinstatement and leave days value. The Appellant employer was aggrieved by both the main award and the quantification award. This led it to file the instant appeals which are now the subject of this judgement. On the main appeal that is the arbitral award appeal, the Appellant raised the following grounds;

Arbitrator erred to find that there was no total adherence to Section 6 of SI 15/06 and that Appellant was legally obliged to finalise Respondent’s hearing within 14 days.

If indeed the provisions were not adhered to Arbitrator was obliged to find whether any prejudice was suffered by such non-adherence.

Arbitrator after accepting that Respondent was failing to discharge the functions of her new office regarding the submission of financial books, a fact which went to the root of the contract failed to find that the employer was entitled to termite the employment contract.

Arbitrator failed to give regard to findings by Courts that labour matters should not be disposed of on the basis of technicalities but on the merits.

After Arbitrator accepted that Appellant exercised its discretion on penalty, he erred by taking that discretion away in the absence of proof/belief that employer’s discretion had been abused.

Arbitrator erred to order damages in place of reinstatement before giving the employee an option to reinstate.

On the quantification the grounds of appeal were that;

Arbitrator erred at law to award employee 3 months’ notice pay yet all he had to determine was how long it would take employee to secure alternative employment.  To that extent he awarded the employee what she had not claimed.

Arbitrator erred to award 10 months’ salary as damages without reasons on how long it would take Respondent to secure alternative employment.

Arbitrator erred to award cash in place of leave without hearing evidence from the parties in that respect. He also did not take into account +$438 which had been paid to Respondent in that respect.

In the result Appellant prayed that both appeals succeed and that the Court confirms the dismissal penalty which was meted out by the Disciplinary Committee. For clarity of record he Court will first deal with the appeal on the main arbitral award. The test to be employed in deciding such appeals is settled. See Nyahondo vs. Hokonya and Others 1997 (2) ZLR 475 (SC). In the same spirit it is pertinent to observe the provisions of Section 98(10) o the Act which obliges the appeal court to only deal with questions of law as regards arbitral decisions.

A reading of the grounds of appeal demonstrate that the appeal is premised mainly on the third test of what a point of law is as opposed to a point of fact See Muzuva vs. United Bottlers 1994(1) ZLR 217. In essence the Appellant’s argument is that the Arbitrator’s factual reasoning was so grossly unreasonable that no tribunal applying its mind to the facts would reach a similar conclusion. To that extent the unreasonableness of the reasoning elevates the argument to a point of law and hence appealable in the circumstances. Each ground will be addressed in turn below.

Ground one

On this ground the Appellant maintains that Section 6(2) of SI 156/06 only obliges the employer to conduct and conclude the hearing within 14 days but gives it discretion by the use of the word “may” to communicate the outcome of the hearing. It therefore argues that if given the delay in the communication of the results of the misconduct hearing outside the 14 days period the proceedings could only be vitiated if it was demonstrated that such a delay prejudiced the Respondent in one way or the other. On this point, the arbitral ruling was that though it was clear that Respondent worked below expectation in the new position he was however of the view that the decision should have been communicated to the Respondent within 14 days of the commencement of the Disciplinary Hearing process. The question on this point is whether the Arbitrator’s interpretation was wrong at law or alternatively in outrageous one warranting this Court’s interference. A reading of the Section in question speaks to 2 issues.Theseare the peremptory conclusion of the hearing and the directory communication of the outcome.  This indeed creates an absurd result which the court is inclined to agree with Appellant’s submission that such must have been a product of ill drafting. Being as it is a plain reading of the Section leads to the result that failure to communicate the outcome with 14 days would indeed not be fatal to the proceedings. In any event as correctly observed by the Appellant no prejudice to the Respondent was demonstrated to have emanated from the late communication. This ground therefore being with merit should succeed.

Ground 2

This ground is intricately linked to ground one discussed above and deserves no repetition. It being with merit shall therefore also be allowed.

Ground 3

Appellant argues that, since Arbitration had concluded that the Respondent fell below the expectation of her new office it was irregular for him to have then gone on to take away the employer’s discretion by holding that the dismissal of the Respondent was inappropriate. It is pertinent to note that, whilst the Arbitrator acknowledged that Respondent fell below her post’s expectation he was also alive to the fact that such a failure was also attributable to the employer who loaded the Respondent with more tasks than she could undertake. It is within the context of that understating that the Arbitrator ruled that the Appellant could not then go ahead and dismiss the Respondent in circumstances where it also participated in her failure to liv up to the expectations of her new position. In the Court’s view the reasoning by the Arbitrator in this respect is unassailable and cannot be held to satisfy the test of unreasonableness which had to be satisfied in such a case before the decision is upset. This ground lacking in merit should therefore fall away.

On the issue of not dealing with matters on technicalities the record demonstrates that the Arbitrator was alive to that fact hence his concession that indeed Respondent had performed below expected standard. The fact that he was convinced that the employer’s contribution to the ill performance of the Respondent demonstrates amply the fact that he did decide the matter on the merits and not on technicalities. This ground also lacking in merit should fail.

Ground 5

On penalty it is apparent that Arbitrator appreciated that the employer had discretion to penalise an employee but that had to be within the bounds of the conduct complained about. In the instant case, as repeated above the Arbitrator noted that Appellant contributed to Respondent’s failure to perform to expected levels. To that extent he deemed it gross that the Appellant should benefit from part of its contribution to the Respondent’s failure to perform well by allowing it to take the extreme measure of dismissing the Respondent in such circumstances. The Court shares the same view with the Arbitrator that, on the facts of this matter it is clear that Appellant was not entirely without blemish hence the penalty it had to mete out on the Respondent had to be tampered with mercy. This ground also lacking in merit should also fail.

Ground 6

On this ground, the Appellant argues that it was imperative for Arbitrator to give it a chance to reinstate first before a damages award. A reading of the award shows that the reinstatement avenue was kind of closed by the wording of the award which simply stated “the claimant be paid damages in lieu of reinstatement.” The records is silent as to why the option of reinstatement was not made a first option followed by an alternative damages award. Being this as it may, it is apparent from the reference in the order that the issue of reinstatement indeed occurred to the Arbitrator. However it is not clear how it then got lost when the final order was made. It is a flaw which cannot stand but can be rectified by amending the order to allow the Appellant the option of reinstatement first. This ground being with merit shall succeed.

In a nutshell the above analysis shows that on the main award some arguments raised by the Appellant have merit and some lack merit but overally it is apparent that the Respondent’s dismissal in the totality of the circumstances of this case was not justified.To that extent, the arbitral award is unassailable.

On the appeal against quantification the Court did not deem it necessary to deal with the grounds individually.

This is so because the main argument advanced in this case is that the quantification award was not done on sound reasoning. Essentially it was not backed by enough evidence. The record indeed confirms that it is a flaw which has to be rectified. In the result the quantification appeal succeeds to the extent that the parties have to present before the Arbitrator once against and have the damages properly quantified afresh. In the ultimate the Court makes the following order;

IT IS ORDERED THAT

Appeal grounds 3,4 and 5 on the main arbitral award being without merit be and are hereby dismissed.

Appeal grounds 1,2, and 6 being with merit be and are hereby allowed.

The whole appeal on quantification being with merit it be and is hereby upheld.

Both the main arbitral matter and the quantification matters are remitted to the Arbitrator so that the Arbitrator re-words his award in respect of reinstatement and damages properly. On quantification, the Arbitrator is to invite parties to give evidence on the justifiable quantum of damages in the matter if the Appellant is not keen on taking the Respondent back. This order has to be implemented within 3 months from the date of receipt of this judgment by either party.

Each party bears its own costs.

L. Kudya

JUDGE – LABOUR COURT

Sawyer & Mkushi – appellant’s legal practitioners

Zuze Law Chambers – respondent’s legal practitioners