Chimhau Primary School v Chibaiso Kanyoka

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/442/16
HELD AT HARARE 15 JUNE 2016
CASE NO
JUDGMENT NO LC/H/442/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/442/16

HELD AT HARARE 15 JUNE 2016				CASE NO LC/H/531/13

& 22 JULY 2016

In the matter between:

CHIMHAU PRIMARY SCHOOL				Appellant

And

CHIBAISO KANYOKA					Respondent

Before The Honourable Kudya, J

For Appellant				Chekai (Legal Practitioner)

For Respondent			Chihombe (Trade Unionist)

KUDYA J:

This is an appeal at the instance of the appellant school against a decision made by the arbitrator in favour of the respondent employee.

The background to the matter is that the respondent who was in the appellant’s employ as a clerk-typist was dismissed from employment following disciplinary proceedings for acts of misconduct.  Her matter eventually landed at arbitration where the arbitrator set aside the dismissal and reinstated her as well as ordered that she be paid what she was being underpaid in terms of the industry salary and benefits stipulates.  Appellant was aggrieved by the arbitral award and thus appealed to the Labour Court, which appeal is the subject of this judgment.

The grounds of appeal were cited as:

Arbitrator misdirected self in law and fact in finding that appellant defaulted arbitral hearing yet notice to attend had been served over the school holiday or due to appellant’s nature of business it could not have attended hence no proper service was effected.

Arbitrator erred at law to find that respondent was unfairly dismissed yet it was impractical for appellant to conduct the disciplinary hearing per the code of conduct.

Arbitrator failed to appreciate that at law in absence of a workers committee appellant properly convened a disciplinary committee.

Arbitrator erred at law by descending into the arena and making factual findings on issues which were not presented before her and determining same.

Arbitrator erred at law to hold that only written documents were acceptable as evidence especially considering that respondent did not rebut the assertions by the appellant.

Arbitrator correctly found that housing and transport allowance were payable per industry code where such not provided by employer but erred to find for respondent yet she chose not to take up the free accommodation.

Arbitrator erred by failing to appreciate and consider appellant’s financial status and socio-education needs of community served by appellant.  Appellant’s operations would be incapacitated and that undermines the appellant’s and community objectives.

Arbitrator erred at law to find for respondent on underpayment and disregarded the agreement on reduced working hours which was not rebutted by respondent.

Arbitrator erred to determine the matter on the papers yet there were several material disputes of fact warranting leading of oral evidence.

Arbitrator erred at law by not showing how he arrived at $3328.66 as being due to the respondent.

In the result appellant prayed that the appeal be allowed and that the arbitral

decision be set aside with costs.

In response to the appeal the respondent maintained that:

Per  arbitration record, arbitration hearing was done on 28 March 2016 which date was not a school holiday as suggested by appellant.  To that extent arbitrator did not misdirect self to conclude that appellant wilfully absconded the hearing.

Appellant should have sought guidance from NEC on how to proceed than to act as it did with only the management employer representative only making the panel hence the respondent was unfairly dismissed as the panel was one sided.

Arbitrator was guided by the terms of reference and made the determination bases on the said terms.

Appellant did not show proof of agreement with respondent on non-payment of stipulated minimum wage and respondent refusal to take up accommodation as well as reduction of working hours without submitting same to NEC for ratification.

Despite appellant default arbitrator had courtesy to ask appellant to file submissions which they did out of time and if needed oral hearing could have requested so since they did not they thus waived their rights.

Appellant in their heads did not rebut calculations for underpayments and allowances hence they did not object to the calculations.

In the result respondent prayed that the appeal be dismissed with costs for lack of

merit.  It is settled law that appeals from arbitration to Labour Court are on points of law.  See Section 98 (10) Labour Act.  As to what a point of law is.  See Muzuva v United Bottlers 1994 (1) ZLR 217.  In light of the legal principles set out in the above authorities each of the grounds of appeal is addressed below.

Ground 1

Impression created by the ground is that award was default award.  If it was then it would not be appealable .  See Zvinavashe v Ndlovu SC-40-06.  Award states clearly that it was based on papers filed by both parties.  Nowhere in the papers does it show that appellant requested oral hearing but was denied same.  The court therefore has no reason to fault the manner in which arbitrator proceeded with the matter.

There is no serious misdirection in that respect calling for the award to be vacated.  The ground being without merit should fail.

Ground 2

The right to be heard principle is the pinnacle of all judicial and quasi judicial proceedings.  The objective behind that cannot be over emphasised.  Where such is not done it would not be remiss to hold the verdict and penalty emanating from same to be a nullity.

It is apparent that by virtue of constituting the disciplinary committee with only employer representatives the respondent was thus not given a fair hearing whatever the merits of the charges under discussion were.  The impracticality of convening a proper committee was an issue which was rightly noted by respondent should and have been taken up with the authorities for corrective action to be taken.  That was not done and the court therefore cannot fault the arbitral reasoning that the dismissal was ill founded.  This ground being without merit should also fail.

Ground 3

What was stated above in grounds 1 and 2 apply to this ground with equal force and deserves no reinstatement.

Ground 4

The law is clear that an arbitrator has to confine self to the terms of reference.  See case of UZ v Jirira SC-6-13.   A look at the terms of reference to arbitration demonstrate that all the issues which the arbitrator dealt with were within his terms.  He cannot be faulted for acting as alleged by the appellant.  On that account this ground should also fail.

Ground 5

A reading of the arbitral award does not in the least suggest what the appellant says he said.  The award only speaks to the fact that had there been written attestation of the arguments advanced then it would have been easier for him to buy or reject the argument about the short time and reduced wages etc.  The court finds nothing irregular in that reasoning.   To that extend this ground cannot avail the appeal.  It should be dismissed

Ground 6

As reasoned in ground 5 above the arbitrator cannot be faulted for not relying on what was not placed before him.  Had appellant tendered the documents supporting its position on the issues in question the arbitrator could have been guided accordingly.  He thus cannot be faulted for ruling as he did.

Ground 7 and 8

What was stated in  grounds 5 and 6 apply to this ground with equal force.  It should also fail.

Ground 9 and 10

As stated on ground 1 there is no evidence on record that appellant was denied the chance to lead oral evidence hence the court had no basis to fault the arbitral reasoning.  In any event arbitrator ultimately reasoned that if the appellant was of the view that indeed respondent had breached the Industry code it had to discipline her in a procedurally correct manner. It chose not to do so and has no basis to urge the court to have the arbitral award vacated.  In the ultimate all the appeal grounds being without merit they should be dismissed.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed with costs.

Arbitral award is to stand.

Mukome Legal Practitioners, appellant’s legal practitioners