Baines Avenues Clinic v Safira Makwangwanya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/770/16
HELD AT HARARE 27 OCTOBER 2016
CASE NO
JUDGMENT NO LC/H/770/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/770/16

HELD AT HARARE 27 OCTOBER 2016			CASE NO LC/H/06/16

& 2 DECEMBER 2016

BAINES AVENUES CLINIC				Appellant

SAFIRA MAKWANGWANYA			Respondent

Before The Honourable G Musariri, Judge

For Appellant		I Chagonda, Attorney

For Respondent		I Goto, Attorney

MUSARIRI J:

Arbitrator J Madziya, issued an arbitration award at Harare date-stamped

25 November 2015.  He ordered appellant to reinstate respondent or pay her damages in lieu of reinstatement.  Appellant then appealed to this court against the award.  Respondent opposed the appeal.

The grounds of appeal were four-fold as follows

“1. The arbitrator erred on a point of law in interfering with the employer’s exercise of discretion to dismiss the respondent without finding any recognisable misdirection on the part of the employer.

2. The arbitrator erred on a point of law in not appreciating that there is a long line of cases which have established that where an employee has been found guilty of misconduct going to the root of contract, the penalty is dismissal and an appeal tribunal cannot substitute its own penalty if the guilty verdict is upheld.

3. The arbitrator grossly erred and seriously misdirected himself on a point of law by holding that the respondent was due a gratuity in circumstances were a legal basis for the claim had not been established.

4. The arbitrator seriously erred on a point of law in giving an award for damages in a case where there had been no evidence led in support for the damages and in any event an award of 12 months damages to an employee who has been found guilty induces a sense of shock particularly in light of the Labour Amendment Act which lays down that the damages be calculated at 2 weeks for every year served.”

The crux of respondent’s counter was that “the arbitrator’s decision that the appellant was unlawfully dismissed is sound at law as the Tribunal has the right to decide the appropriate remedy in terms of the Labour Act.”

Appellant employed respondent as a Claims Manager in Harare.  On

20 November 2014 she was suspended from duty on grounds of misconduct.  A hearing was held on 3 December 2014.  She was found guilty and slapped with the penalty of dismissal.  In due course respondent filed a complaint with a labour officer who then referred the matter to arbitration.  This resulted in the aforesaid arbitration award.  In his analysis, the arbitrator opined that,

“… this tribunal observes that indeed the complainant committed an act of misconduct.  She processed refunds and did not make follow ups to check whether the processed refunds reached the intended beneficiaries.  She also confirmed that processing of refunds was not part of her job description but was an oversight.”

Clearly the arbitrator found that the guilty verdict was warranted.  However he proceeded to interfere with the penalty of dismissal.  He found that the mitigatory factors in the matter warranted a final written warning.  This is where the arbitrator fell into gross error.  The employer found the employee guilty of misconduct.  The prescribed penalty was dismissal.  The employer exercised his discretion and imposed that penalty.  The arbitrator could only interfere if it was shown that the employer abused his discretion on penalty.  The arbitrator did not deal with the employer’s reasons for the penalty at all.  He treated the matter as if he was at large on the question of penalty.  He was not.  He had to engage with the employer’s discretion.  Having failed to do so he had no basis upon which to interfere with the penalty.

As for the gratuity, again there was no basis for its award.  A gratuity can be provided for by contract or statute.  None such was cited in support of the gratuity awarded.  Normally gratuities are provided for in Collective Bargaining Agreement (CBA).  Even in this court, respondent did not cite any CBA.  Her claim that a former colleague was granted a gratuity does not hold water.  We do not know the basis upon which the colleague got a gratuity that is if he got it at all.  In the circumstances I consider that the arbitration award was not warranted.  The appeal against it ought to succeed.

Wherefore it is ordered that,

The arbitration award issued by Arbitrator J Madziya date-stamped

25 November 2015 is set aside; and

Each party shall bear its own costs.

G MUSARIRI

J U D G E