B.S. Leon Trust Medical Services v Emily Matonga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/156/2016
HARARE, 11 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/156/2016

HARARE, 11 FEBRUARY 2016 			     	     CASE NO. LC/H/718/14

AND 18 MARCH 2016

In the matter between:-

B.S. LEON TRUST MEDICAL SERVICES			-	Appellant

And

EMILY MATONGA							-	Respondent

Before Honourable L.M. Murasi, Judge

For Appellant	-	Mr A. Muchadehama (Legal Practitioner)

For Respondent	-	Ms A. Mobbs (Legal Practitioner)

MURASI J:

Most of the facts in this matter are common cause.  Respondent was in the employ of the appellant.  Following allegations of misconduct, respondent was suspended by the appellant.  No disciplinary hearing was held resulting in the respondent being called back to work.  Respondent was re-suspended on 21 March 2011.  An attempt was made to hold a disciplinary hearing but this was not concluded.  The respondent took the matter to the Labour Officer and the matter was referred to arbitration.  The arbitrator found the respondent guilty on the one charge and not guilty on the other.  Further, the arbitrator ordered payment of arrear salaries to respondent with effect from date of referral of the matter to the Labour Officer.  Appellant is dissatisfied with the arbitrator’s ruling and has appealed to this court.

Appellant’s grounds of appeal are couched as follows:

The learned Arbitrator erred in law in taking a view of the facts that she was not entitled to take more particularly in disregarding the respondent’s evidence on the second charge of disobedience to a lawful order.

Respondent did not heed the call by Sister Njobela to remain at work whilst someone else came to relieve her.

The learned Arbitrator erred and misdirected herself in finding Respondent in violation of Section (2) of Statutory Instrument 15 of 2006 and the effect of such violation.

2.1.	The proceedings not having been concluded within fourteen days, respondent was free to refer the matter to a Labour Officer or compel appellant to conclude the proceedings on time.

3.  Having found the respondent guilty of misconduct, the Arbitrator erred in	     determining the dates of payment and back-pay and benefits.

3.1	It is contented (contended) that the proper approach would have been to order the respondent’s dismissal from the date of suspension.

Mr Muchadehama for the appellant stated that he largely abided by the heads of argument filed of record.  He submitted that the arbitrator fell into error in not finding the evidence of Sister Njobela to be sufficient to convict the respondent on the charge of unlawful disobedience to a lawful instruction.  He further submitted that the evidence of Sister Njobela was not disproved and a holistic approach would have led to a finding that the respondent was guilty of the charge.  Mr Muchadehama stated that the main point was the effective date of the dismissal.  He said after respondent’s first suspension she was re-called and later re-suspended.  There was an attempt to hold a hearing but this was abandoned.  He said this was attributable to serious verbal exchanges between Doctor Mangwiro and the respondent.  It was argued that upon referral to the arbitrator, the arbitrator should have found that the effective date should have been the date of the second suspension.  It was argued that there was no legal basis on which the arbitrator based the effective date as being the date of referral to the Labour Officer.  Mr Muchadema’s heads of argument however state that the effective date of dismissal should be 20 December 2010 (paragraph 8.2.2.).

Ms Mobbs for the respondent stated that she also abided by the heads of argument filed of record.  She further stated that respondent was first suspended on 20 December 2010 and on 15 March 2011 appellant withdrew the suspension and tendered payment of arrear salaries and benefits in the sum of $ 3454,45.  On 21 March 2011 respondent was re-suspended and on 24 March 2011 appellant attempted to hold a disciplinary hearing and did not proceed to conclusion.  Ms Mobbs submitted that this was a clear violation of section 6 (2) of Statutory Instrument 15 of 2006.  The aborted proceedings rendered the second suspension a nullity.  Ms Mobbs further argued that in premises the effective date would therefore be the date when the matter was referred to the Labour Officer.

The first ground of appeal relates to the offence where respondent was discharged.  The appellant’s Counsel submitted that the arbitrator ought to have convicted the respondent on the basis of the evidence given by Sister Njobela.  The arbitrator’s findings in this respect are as follows:

“On the second charge the case against the claimant was weak due to the fact one of the key witness Sister Dongo gave evidence that was contrary to the Respondent’s submission.

It was the finding of the Arbitrator that the Respondent did not produce a duty roster with information on the time the claimant left her workplace.”

The arbitrator heard the evidence of all those witnesses.  An appellate court will only interfer with the decision of lower court or tribunal where there is evidence of a gross misdirection.  It would be wrong for this Court to purport to be the court of first instance.  That tribunal was endowed with the opportunity of hearing viva voce evidence and make an assessment of the witnesses as they gave evidence.  This Court is not in a position to make those observations.  Appellant’s Counsel does not take issue with the correctness of the finding by the arbitrator on the evidence of Sister Dongo.  The arbitrator makes the finding that the Sister’s evidence was contrary to the submissions by the respondent.  In other words this evidence must have been well off the mark.  It has been argued that the arbitrator should then have accepted the evidence given by Sister Njobela.  The basis upon which such submission is made has not been ventilated by the appellant.  In fact the arbitrator goes further to state that the appellant did not produce the duty roster.  Since Sister Njobela was the one supposedly in charge, she should have produced the duty roster.  This was not done as stated by the arbitrator.  Precedent has shown that proved facts should be such that they exclude every reasonable inference from them save the one to be drawn.  It is my view that this Court is not in a position to fault the finding of the arbitrator in this respect.

In order to determine the other grounds of appeal, it is pertinent that a look be made at the provisions of Statutory Instrument 15 of 2006.  Section 6 of the National Code provides:

“(1)	Where an employer has good cause to believe that an employee has committed a misconduct mentioned in section 4, the employer may suspend such employee with or without pay and benefits and shall forthwith serve the employee with a letter of suspension with reasons and grounds of suspension.

(2)	Upon serving the employee with the suspension letter in terms of subsection (1), the employer shall, within 14 working days investigate the matter and conduct a hearing into the alleged misconduct of the employee and, may, according to the circumstances of the case –

(a) serve a notice, in writing, on the employee concerned terminating his or her contract of or employment, if the grounds for his or her suspension are proved to his or her satisfaction; or”

The plain meaning of the above provision is that the employer, after suspending the employee, shall proceed to hold a hearing within the stipulated period of time.  The suspension should be followed by a hearing.  The requirements are clearly conjunctive when one has regard to the use of the word ‘and’.  The employer cannot therefore suspend an employee and not hold the hearing within the stipulated 14 days.  The provision is peremptory.  The employer is not at liberty to hold the hearing as and when he or she pleases.  The holding of a hearing cannot be said to have taken place where there is an attempt to do so and it is abandoned with no conclusion being arrived at.  This is why there is a provision that if it is not concluded a litigant may refer the matter to a Labour Officer for conciliation.

In casu, appellant initially suspended the respondent on 20 December 2010 but did not hold a hearing within the stipulated 14 days.  Appellant later reinstated the respondent.  This means that the earlier suspension fell off. After being re-suspended, an attempt was made to hold a hearing but this was not concluded.  The matter was referred to the Labour Officer.  What then was the effect of the aborted hearing on the suspension?  Did the respondent remain on suspension?  Clearly not.  Where the employer has not complied with the peremptory provisions of a statute, it cannot be held that the suspension would ensure for an indefinite period of time simply because the employer has failed to conclude the hearing.  That suspension must be deemed to have fallen off where the employer has not complied with the statutory provisions.  To this end I am in agreement with the submissions of Ms Mobbs.  Respondent’s counsel refers to Nyoni vs Secretary for Public Service, Labour and Social Welfare & Another 1997 (2) ZLR 516 where it was stated thus:

“The validity of the suspension of the applicant without pay lapsed by operation  of law after 14 days and her continued suspension without holding disciplinary hearing became unlawful.”

Mr Muchadehama in his heads of agreement stated that the arbitrator should have found the effective date of dismissal to be 20 December 2010.  This is the same argument that was advanced before the arbitrator.  That argument was clearly wrong having regard to the fact that respondent was later reinstated in March 2011.  Mr Muchadehama thereafter stated that the effective date of dismissal should be the date of the second suspension.  As stated earlier the appellant was enjoined to hold a hearing within 14 days.  Appellant did not conclude the said hearing until the matter was referred to the Labour Officer.  It cannot be said that the suspension imposed on respondent was extant at the time the matter was referred to the Labour Officer.  Clearly the suspension was now unlawful.  I am of the view that the arbitrator did not err in finding that the effective date of dismissal was the date the matter was referred to the Labour Officer.

In conclusion I find that the decision of the arbitrator in this regard cannot be faulted.  The appeal is therefore dismissed with costs.

Mbidzo, Muchadehama & Makoni, appellant’s legal practitioners

C. Nhemwa & Associates, respondent’s legal practitioners