Takesure Mudiwa v Chitungwiza Municipality

### Preamble
Judgment No. SC 38/20
1
Civil Appeal No. SC 98/18
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DISTRIBUTABLE:     (35)

TAKESURE     MUDIWA

v

CHITUNGWIZA     MUNICIPALITY

SUPREME COURT OF ZIMBABWE

GARWE JA, GOWORA JA & GUVAVA JA

HARARE, MAY 15, 2018 & MARCH 5, 2020

Appellant in person

R.R. Mutindindi, for the respondent

GARWE JA

[1]	This is an appeal against the judgment of the Labour Court dismissing an appeal that in turn had sought an order setting aside an arbitral award finding the appellant guilty of misconduct and dismissing him from employment as a consequence thereof. Having found no merit in the appeal the Labour Court upheld the award and confirmed the dismissal of the appellant from the respondent’s employ.

THE BACKGROUND

[2]	The appellant was employed by the respondent in the capacity of Chief Internal Auditor. On 6 February 2012 he was suspended from duty without benefits by the then Town Clerk, G. Tanyanyiwa. It was alleged that he had misconducted himself in three respects, contrary to the respondent’s Code of Conduct. A board of inquiry was constituted by the respondent to look into the allegations. It appears that, during the hearing, the appellant challenged the propriety of the composition of the disciplinary board.  Having considered the challenge and further that it had “encountered problems in having the matter completed”, the respondent, according to the record, then “decided to withdraw charges against Mr Mudiwa”.  A copy of the withdrawal was served on the appellant the same day and by letter of the same date, the then acting Town Clerk, Mr Mbetsa, immediately reinstated the appellant to his former position with full benefits.

[3]	On 2 March 2012, the acting Town Clerk again suspended the appellant on substantially the same allegations.  It was alleged that he had retrieved financial books and a file containing internal payment vouchers from the finance section and that the documents had disappeared whilst in his possession. It was further alleged that he had given inconsistent statements on the fate of the documents and that his intention had been to conceal information.  Consequently he was charged with wilful loss of council property and, alternatively, behaviour likely to prejudice the interests of or harm the council’s financial interests or position. He was summoned to appear before a disciplinary committee on 21 March 2012.

[4]	On the day of hearing, the appellant’s legal practitioner, Ms Chinjeya, objected to the composition of the board of inquiry on the basis that most of the members of the board had been involved in the initial hearing.  It appears the matter was thereafter postponed with no formal determination having been made on the objection. The appellant then referred the matter to a labour officer.  At conciliation, it was agreed between the parties that the appellant be paid all his dues up to the date of the second suspension and that the matter be referred to an arbitrator for determination of the allegations of misconduct levelled against him.

PROCEEDINGS BEFORE THE ARBITRATOR

[5]	At arbitration the parties confirmed (a) that the appellant was to be paid all salaries and benefits due to him up to the date of the second suspension (b) that the subsequent suspension was to stand until finalisation of the matter by the independent arbitrator and (c) that the arbitrator was to deal with the merits of the allegations made against the employee and make an appropriate determination thereof. The parties signed a memorandum capturing these issues as well as the issues requiring determination at arbitration on 13 June 2012.

[6]	Before the arbitrator, the appellant filed a number of documents that had a bearing on the matter as well as submissions on the allegations of misconduct levelled against him. On the basis of the papers filed, the appellant prayed that he be found not guilty of the charges preferred against him and that he be reinstated to his position.

[7]	The respondent also filed a statement of defence. It submitted as follows.  The arbitrator’s specific terms of reference required him to determine the matter on the merits. It submitted that the events that had taken place before the parties’ agreement on the arbitrator’s terms of reference were irrelevant. Any procedural irregularities previously experienced in the first and second disciplinary hearings were not part of the issues for arbitration.  In its heads of argument, the respondent quoted various remarks made by various officials during the investigations into the disappearance of the books as well as written responses by the appellant on the whereabouts of the documents. The respondent submitted further that the appellant had accepted that the book was a security risk and that unscrupulous members of the respondent’s finance department wanted to steal it.  The appellant had further accepted that the book carried information on the previous investigation carried out into the activities of the finance staff and that the finance department, which should have kept the book, had developed bad apples who most likely wanted to steal the book to cover up their misdeeds. On the basis of all these facts the respondent submitted that the appellant should be found guilty of both charges and that, because his conduct went to the root of the employment contract, he should be dismissed from employment.

[8]	No evidence was led before the arbitrator, both parties having relied on written submissions and various documents that had been prepared during the investigation into the matter. The arbitrator appreciated that his role was “to deal with the matter on the merits and to make an appropriate determination on the merits.” He took into account the submissions by the appellant that he had, on realising that the book was a security risk, handed over the book in question to the then Town Clerk, Tanyanyiwa.  The arbitrator found that the appellant had advanced “different explanations” on the fate of the book. He found that the appellant had claimed, at one stage, that he had returned it to finance; that at another stage he had stated that he was failing to locate it and, later, that he had handed it over to the Town Clerk. He found the appellant’s version as having lacked credibility and, in the result, found him guilty on both charges. Having found no strong mitigatory factors, he imposed the ultimate penalty of dismissal from employment.

PROCEEDINGS BEFORE THE LABOUR COURT

[9]	Dissatisfied with the outcome of the arbitral proceedings, the appellant noted an appeal to the Labour Court. The appeal was predicated on three grounds.  First, that the arbitrator, having made the finding that the matter was res judicata, had misdirected himself in not setting aside the dismissal of the appellant. Second, that the arbitrator had misdirected himself in finding him guilty of wilful loss of property in the absence of evidence establishing such guilt. Third, that the arbitrator had failed to apply his mind to the issues before him and, as a result, had made a decision which no reasonable tribunal would have made on the same facts.

[10]	In motivating the appeal the appellant further submitted that the arbitrator, having appreciated that the matter was res judicata, should not have gone further to make a determination thereon. The merits of the case had been heard fully and, though a verdict had not been given, he had been reinstated, a clear sign that he had been found not guilty of the charges.  He also submitted that there was no evidence establishing that he had intentionally caused the loss of the book.

[11]	The respondent disagreed. It argued that appellant had, before the first board of inquiry, raised procedural issues as a result of which it (the respondent) had withdrawn the initial charges and reinstated him. It had then, as it was entitled to, instituted the disciplinary proceedings afresh. It was never the finding by the arbitrator that the matter was res judicata. The arbitrator had merely remarked that perhaps the appellant would have had a more arguable case if his submissions had been that the matter was res judicata. It argued that the matter was not, in any event, res judicata, as the charges had been withdrawn and the appellant reinstated before he was again suspended. The appellant’s lawyers had, by letter dated 1 Mach 2012, written to the board of inquiry alleging serious irregularities and requesting that the proceedings be quashed and the appellant reinstated. Having accepted those representations, the respondent had then withdrawn the charges, reinstated the appellant and thereafter reinstituted the proceedings.  The matter was thus not res judicata.

[12]	The respondent further submitted that the documentary evidence presented to the arbitrator showed that the appellant had unlawfully retrieved the book and files containing payment vouchers for the period 2009-2010 and had not returned these to the assistant finance director. At some stage, he lied that he had returned the book to main accounts. On another occasion he had said he could not locate the book in his office.  Before the arbitrator, he had then alleged, for the first time, that he had given the book to the then Town Clerk, Tanyanyiwa. Clearly the appellant failed to explain where the book, which he had taken custody of, was. His conviction on both counts was therefore proper. So was the penalty of dismissal.

[13]	In its determination, the court a quo found that the third ground of appeal was a bald allegation, not grounded on any identified misdirection on the facts. The ground did not therefore raise any issue of law. As regard the first ground of appeal, namely, that the arbitrator had erred in determining a matter that was res judicata, the court found that the appellant had misconceived the facts.  Before the arbitrator he had not raised the issue whether the matter was res judicata or not. His case had been that the code of conduct did not provide for the withdrawal of charges after a full enquiry. Neither party had addressed the court on the issue of res judicata and that issue was therefore not before the arbitrator.  Although he mentioned that there could have been argument on whether the matter was res judicata, the arbitrator was quick to point out that the issue was not before him. The arbitrator, in any event, had, by agreement of the parties, been asked to consider the merits of the case only.

[14]	On whether the appellant had been correctly convicted, the court agreed with the arbitrator that he had given conflicting statements on the whereabouts of the book and had failed to satisfactorily explain its whereabouts.  The court accordingly confirmed the findings by the arbitrator and dismissed the appeal.  That determination has resulted in the present appeal.

APPEAL PROCEEDINGS BEFORE THIS COURT

[15]	In his grounds of appeal, the appellant has raised three issues.  First, that the court a quo erred when it declined to uphold his submission that the matter before it was res judicata.  Second, that the court further erred when it accepted that the disciplinary proceedings had been withdrawn when the disciplinary committee had no power to do so. Third, that the court erred in rejecting the appellant’s submission that he had handed over the book to the then Town Clerk, Tanyanyiwa.

[16]	In his heads of argument, the appellant says the agreement reached between his legal practitioner and the respondent’s legal practitioner for the arbitrator to deal with the matter on the merits only was without his blessing.  He persisted with his argument that the matter was indeed res judicata because it had been dealt with to finality at the hearing stage. The merits of the case had been fully heard by the board of inquiry. The board purported to withdraw the proceedings but had no authority to do so. Therefore, when the decision was made to reinstate him, after a full enquiry, the case had been finalized. Nowhere in the Code of Conduct is the disciplinary committee empowered to withdraw charges.  On the merits, he submitted that there was no evidence to prove that he had intentionally lost the book. At most the appellant “may be accused of negligent loss of the book”.

[17]	The respondent’s submissions before this Court mirror the submissions made before the court a quo.  It submitted as follows. The issue of res judicata was not an issue before the arbitrator and no finding on that issue was ever made. Therefore the appellant cannot allege that the arbitrator misdirected itself in not dealing with an issue not raised by the parties.  Secondly, the appellant at no stage challenged the authority of the second disciplinary committee to hear his matter. The withdrawal by the first committee was never challenged. The appellant consented to the withdrawal of the first set of charges and to the payment of outstanding salaries before the Labour Officer. If the appellant ever had rights to challenge the decision to withdraw the charges, he must be regarded as having waived them. On the merits, the finding by the court a quo that the appellant had committed the acts of misconduct was not unreasonable or irrational. The findings were consistent with the proved facts.

ISSUES FOR DETERMINATION

[18]	Taking into account the grounds of appeal and the submissions of the parties, I consider that there are three issues that fall for determination before this Court. First, whether the court a quo erred in declining to uphold the appellant’s submission that the matter before the arbitrator was res judicata, the matter having been dealt with to finality. Second, whether the effect of the withdrawal of the charges at the conclusion of the first hearing was an issue both before the arbitrator and the court a quo. Third, whether the court a quo was correct in upholding the arbitrator’s findings that the appellant was guilty of misconduct and, as a consequence, that the penalty of dismissal imposed was appropriate.  I deal with each of these in turn.

WHETHER THE MATTER WAS RES JUDICATA

[19]	The allegations of misconduct levelled against the appellant were referred to the arbitrator for the latter to “deal with the merits of the allegations against the employee and make an appropriate determination and/or penalty”. In other words, the parties agreed that technicalities and procedural issues were to be avoided and that the matter was to be determined on the merits.  This is precisely what the arbitrator proceeded to do.  He confined himself to the issue whether the appellant was guilty of the two acts of misconduct levelled against him. Whilst he expressed, obiter, the personal view that the appellant may have had a good argument on whether or not the matter was res judicata, he immediately stated that this was not an issue for determination before him.

[20] There can be no doubt that the issue whether the fresh charges preferred against him were res judicata or not was not one of the issues referred to the arbitrator and that he appreciated this. Further, as correctly pointed out by the respondent, the allegations against the appellant were not, in any event, res judicata. No determination had been made by the first board of inquiry on the guilt or otherwise of the appellant.  The charges were withdrawn after the parties had made submissions on the matter and, after representations by the appellant’s legal practitioners that the board was not properly constituted. Having considered those submissions, the charges had then been withdrawn and a copy of such withdrawal served on the appellant the same day.

[21]	That an employer has the prerogative, where irregularities in procedure have been brought to his attention, to withdraw the charge and start afresh is now well accepted in our Labour Law.  But that does not appear to have been the appellant’s grievance. His grievance was that, since the parties had been allowed to make submissions and had been heard, then he was entitled to a verdict. Whether or not there was merit to this argument is an issue that I need not determine in this case.  What is clear is that, no verdict having been rendered, the charges were withdrawn and the appellant reinstated.  He did not complain. He took no action to impugn the withdrawal. Fresh charges were levelled against him arising from the same set of circumstances.  His complaint before the second board of inquiry was that most of its members had been members of the first board of inquiry.  That the matter was now res judicata and, more specifically, that he had been acquitted of all wrong doing, was not raised. Indeed when the matter eventually came up before a labour officer and a certificate of no settlement issued, the parties agreed, firstly, that the matter was to be referred for arbitration; secondly that the appellant was to be paid his dues up until the date of the second suspension and that the arbitrator was to avoid technicalities but deal with the matter on the merits.  No issue was taken concerning the propriety of the withdrawal of the charges at the first board of inquiry after both parties had made submissions.  Whether or not the matter was now res judicata was not one of the issues that the parties agreed was to be referred to arbitration. Indeed the arbitrator made no finding that the matter was res judicata.

[22]	In disposing of the issue the court a quo remarked:-

“…….. the appellant cannot successfully raise the issue that the arbitrator made a finding that the matter was res judicata.  He did not.  The arbitrator was only asked to consider the merits of the case.  He was bound by those terms. The court cannot in turn consider whether the matter was res judicata as invited by the appellant. The issue was not determined upon and therefore beyond this court’s scope.”

[23]	In my view, the court a quo cannot be criticised for reaching the above conclusion.  On the facts before the arbitrator and the court a quo, there was nothing to suggest that the matter was res judicata. What is clear is that in his heads of argument filed before the arbitrator, the appellant did question whether the board of inquiry could, in terms of the respondent’s code of conduct, have properly allowed the charges to be withdrawn after having heard argument from both parties.  That complaint however was not one of the issues that fell to be determined at arbitration.  Res judicata had nothing to do with the facts of this case.  Consequently, the court a quo correctly found that the arbitrator was within his powers when he proceeded to hear the second set of the allegations levelled against the appellant.

WITHDRAWAL OF THE CHARGES WAS NEVER AN ISSUE

[24] Both in his grounds of appeal and heads of argument, the appellant has submitted that the committee acted ultra vires its powers when it purported to withdraw the charges after both parties had been heard.  This issue need not detain this Court.  As the respondent correctly pointed out, at no point did the appellant take issue with the withdrawal. He appeared before the second board of inquiry on the same charges but raised no complaint on the propriety of the withdrawal of the first set of charges.  What he complained of was the composition of the second board of inquiry.  Even at conciliation, he did not raise the complaint. Instead, the parties agreed that he be paid his salaries and benefits up to the date of the second suspension, that the second suspension was to remain operational until finalization of the matter and that the matter was to be referred to an arbitrator who was to deal with the matter on the merits.

[25]	The respondent is correct, in my view, in submitting that the appellant waived any rights he may have had to challenge the withdrawal of the charges preferred against him.  His conduct was not consistent with that of a person who was challenging the propriety of the withdrawal of the first set of charges, which withdrawal had then given way to the reinstitution of fresh charges. The decision to refer the matter to arbitration and for the appellant to be paid all his dues up to the date of the second suspension, was agreed between the parties and both parties did sign the document to put beyond doubt that its contents were agreed.

[26]	Further, and in any event, the propriety of the withdrawal of the charges was not an issue before the arbitrator. It was also not an issue before the Labour Court. The issue has been raised for the first time in the grounds of appeal filed with this Court. The appellant cannot be allowed to raise, for the first time before this Court, the issue whether the first disciplinary authority that withdrew the first set of charges had the power to do so.

THE DECISION BY THE COURT A QUO CONFIRMING THE VERDICT AND

PENALTY

[27]	The Labour Court found that, on the papers before it, the arbitrator was entitled to reach the inference that the appellant had possession of the book and had thereafter failed to satisfactorily explain the fate of that book. The arbitrator made findings of fact which the court a quo found were consistent with the evidence in the papers before him. Indeed it was common cause that the appellant had given different versions as to the fate of the book.  At one stage he was said to have indicated he did not have the book only for it to be found in his drawer. During the arbitration proceedings he then alleged that he had given the book to the then Town Clerk as he felt that it was a security risk.  It is clear that the arbitrator was satisfied that the book went missing whilst in the appellant’s custody and that the different stories given by the appellant suggested that he had consciously taken the decision not to disclose its whereabouts.  These were findings of fact which the court a quo accepted. The court found no basis for interfering with these factual findings.  Like the court a quo, this Court also finds no basis for interfering with the decision of the court a quo to confirm the findings of the arbitrator.  The findings made by the arbitrator, and accepted by the court a quo, cannot be said to be irrational or of such a nature that no tribunal, faced with the same facts, would have made the same. Indeed the proven facts are consistent with the findings made on the guilt of the appellant. That a penalty of dismissal was appropriate consequent upon the above findings of fact cannot be disputed.

CONVICTION OF APPELLANT ON BOTH CHARGES WAS IMPROPER

[28] Neither party took issue with the finding by the arbitrator that the appellant was guilty of both counts.  They should have. The charge preferred against the appellant was wilful loss of council property, alternatively, behaviour likely to harm the financial position of council. These were therefore not two separate charges.  Whilst the findings of fact would have justified a finding of guilt on either charge, it was not proper for the arbitrator to find him guilty of both.  He should have been found guilty of the main charge and not guilty of the alternative.  The conviction of the appellant will therefore need to be corrected to this extent. The correction, for obvious reasons, has no effect on the penalty of dismissal that was imposed.

DISPOSITION

[29]	I am satisfied that the matter before the arbitrator was not res judicata.  I am also satisfied that the issue, in any event, was never raised before either the second disciplinary committee or the arbitrator.  I am further satisfied that the propriety of the withdrawal of the first set of charges was never raised before the second board of inquiry and was not an issue before the arbitrator. Those two tribunals could not therefore have been expected to deal with an issue that did not fall for determination and in respect of which both parties had not made submissions.  Lastly, the finding of guilt returned by the arbitrator was consistent with the facts as deduced from the documents presented before the arbitrator. The Labour Court was therefore correct in determining that it had no basis for interfering with either the finding of guilt or the penalty of dismissal imposed by the arbitrator.

[30] The appeal is therefore without merit and must fail.

[31]	It is accordingly ordered as follows:

(1) The appeal is dismissed with costs.

(2) The judgment of the court a quo is amended to read:

“(i) The appeal is dismissed.

(ii) The award of the arbitrator is corrected to read:

“The claimant is found guilty of the main charge of wilful loss of council property and not guilty of the alternative charge of behaviour likely to harm the financial position of council.”

(iii) The award is otherwise confirmed.”

GOWORA, JA			I agree

GUVAVA, JA			I agree

Appellant in person

Matsikidze & Mucheche, respondent’s legal practitioners