Aaron Katsande v Chapman Golf Club

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/490/14
HELD AT HARARE 22ND JULY 2014
CASE NO
JUDGMENT NO LC/H/490/14
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/490/14

HELD AT HARARE 22ND JULY 2014			CASE NO LC/H/281/14

& 1ST AUGUST 2014

In the matter between:-

AARON KATSANDE				Appellant

And

CHAPMAN GOLF CLUB				Respondent

Before The Honourable L.M. Murasi, Judge

For Appellant		Mrs L.F. Wuta- Mageza

For Respondent		Mr C Gohora (Human Resources Manager)

MURASI, J:

Appellant was employed by respondent as a Club Steward.  On

2 October 2013, appellant was apprehended carrying some items in his bag by security personnel which allegedly belonged to respondent.  Appellant was subsequently suspended and brought before a Hearing Committee.  The Committee recommended his dismissal.  Appellant approached the Ministry of Labour which office referred the matter to compulsory arbitration.  The arbitrator found in favour of respondent.  Appellant has appealed to this Court.

Respondent, in its Heads of Argument purported to raise points in limine.  However, as respondent did not raise the issue at the commencement of the proceedings, the Court took it that it was no longer pursuing the matter.

Appellant submitted that the arbitrator erred in raising issues mero motu which were not part of the terms of reference.  Appellant’s Counsel stated that the arbitrator raised the issue of terminal benefits and this was the first time this was being raised and it had the effect of influencing the award.  Appellant further stated that the arbitrator was in error when he found that the acceptance of the terminal benefits affected appellant’s rights to challenge dismissal as he was assumed to have waived his rights.  Appellant’s Counsel stated that the cases cited by the arbitrator, were distinguishable as they dealt with retrenchments which was different from appellant’s case.  Appellant raised the issue that the arbitrator should have found that the evidence adduced was insufficient to prove the guilt of the appellant.  Counsel for the appellant also raised the issue of procedural irregularity in that appellant was not afforded enough time to prepare for the hearing and that the suspension letter did not state the reasons and grounds upon which appellant was being suspended.

Respondent largely abided by the Heads of Argument filed of record.  It was submitted that the arbitrator had not raised the issue of the payment of terminal benefits mero motu.  Respondent referred the Court to page 15 of the record which showed that the arbitrator enquired from appellant’s Counsel of appellant’s position on the matter at the submissions before him had omitted to deal with the matter.  As regards the items allegedly stolen, respondent submitted that the identity of the items coupled with the evidence gathered when appellant was arrested clearly showed that these belonged to the respondent.  Respondent further stated that appellant was given enough time to prepare for the hearing as shown by the fact that he was able to bring a witness to the hearing.  It was stated that appellant should clearly show the nature of the prejudice suffered as a result.  Respondent dismissed the claim that the record of proceedings was not a clear reflection of what transpired at the hearing.  Respondent stated that appellant appended his signature to show that he agreed with the record.  Respondent urged the Court to dismiss the appeal as it did not have any merit at all.

Precedent has established that an appellate court will only interfer with the decision of a lower tribunal where there is evidence that the tribunal’s decision was so outrageous in its defiance of logic or accepted moral standards that no sensible person applying his mind to the question to be decided could have arrived at such a decision.  (See generally  Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (SC).  With this is mind the Court will consider appellant’s first point that the arbitrator raised the issue of the payment terminal benefits mero motu.  The record shows that respondent raised this issue in its submissions before the arbitrator.   The arbitrator clearly states in the award that he reminded appellant’s Counsel that appellant had not addressed this as it had been raised by the respondent.  The record shows that thereafter,  appellant’s Counsel conferred with the appellant and confirmed with the arbitrator that the terminal benefits had indeed been paid on 21 October 2013.  Therefore, the fact that this matter was raised  mero motu by the arbitrator is incorrect as shown in the record.  This ground of appeal has no merit.

The second ground of appeal is that the issue of payment of terminal benefits was not part of the terms of reference agreed upon by the parties as the arbitrator went on the deliberate on a different issue.  The arbitrator, on page 16 of the record asks the following question:

“Given the fact that it is common cause that claimant was paid terminal benefits after his dismissal, the legal question that begs for an answer is whether the claimant can persist with a claim for unlawful dismissal after he accepted payment of the terminal benefits arising from the some dismissal which he seeks to impugn?”

The terms of reference are couched as follows:

“Whether or not the employee was unlawfully dismissed.

Determine appropriate remedy.”

It is clear that the arbitrator’s line of reasoning was whether a person

who had accepted terminal benefits could allege unlawful dismissal.  The arbitrator went on to cite cases where persons had accepted terminal benefits and were deemed to have waived their rights to claim unlawful dismissal.  Appellant’s Counsel sought to distinguish the cases cited as applying only to persons being retrenched as opposed to applicant’s case.  I am not connived that appellant’s Counsel ably did so.  This ground of appeal must also fail.

The third ground of appeal sought to attack the dearth of evidence adduced at the hearing and that the arbitrator failed to find that no evidence was led to prove appellant’s guilt.  As pointed out by respondent, the nature of the goods found in appellant’s possession and the replies that he gave clearly showed that the goods must have been removed from respondent’s premises.  For example, appellant did not state that he had been given the goods by his brother. He did not produce any receipt on the date in question.  The evidence shows that he begged for forgiveness.  He did not bring the receipt at the hearing but it was produced at a later date.  The receipt did not show what items were bought on 1 October 2013.  Further, the batch numbers on the soap were similar to those in respondent’s stock.  The Court is of the view that the benchmark for evidence is found in its credibility, reliability and relevance.  The evidence of the witnesses at the hearing satisfied the above criteria.  I find no misdirection on the part of the arbitrator.

Appellant’s other ground of appeal was on procedural irregularities.  It was submitted that the respondent only gave the appellant a few days within which to prepare for the hearing.  This was not as prescribed by the Code of Conduct.  Respondent in its submissions did not strenuously argue that it had complied with the Code of Conduct.  There was a mild concession on its part but observed that appellant had not raised the issue at the hearing.  This was the same observation made by the arbitrator.  The Court inquired of appellant’s Counsel what prejudice  appellant had suffered seeing that he had been able to bring a witness to the hearing.  Appellant’s Counsel was at pains to point out the prejudice that appellant had suffered as a result.  It is trite that procedural considerations should not be allowed to vitiate proceedings unless it can be shown that the other party would suffer prejudice.  This has not been demonstrated.

Lastly, appellant raised the procedural irregularity that the suspension letter did not state reasons and grounds upon which he was suspended.  This ground clearly has no merit as the letter shows what items appellant is alleged to have removed and from which place.

In deciding whether the penalty of dismissal was appropriate, it should be asked whether it was reasonable for the employer to dismiss him.   If no reasonable employer would have dismissed him, then the dismissal was unfair.  But, if a reasonable employer might have reasonably dismissed him, then the dismissal was fair.  (See generally Nampak Corrugated Wapeville v Khoza [1999] 2 BCLR 108 (LAC) ).  The Court is of the considered view that having regard to appellant’s position at respondent’s employ, the latter was entitled to dismiss.

In the result the Court finds no merit in the appeal and it is accordingly dismissed with no order as to costs.

Mageza & Nyamwanza, appellant’s legal practitioners