CITY OF Harare V PAUL Mushawemhuka

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/459/2016
HARARE, 18 MARCH 2016
CASE NO. LC/H/1153/14
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/459/2016

HARARE, 18 MARCH 2016				CASE NO. LC/H/1153/14

AND 22 JULY 2016

In the matter between:-

CITY OF HARARE						Appellant

And

PAUL MUSHAWEMHUKA				Respondent

Before Honourable R.F. Manyangadze, J

For Appellant		Ms A. Zvoutete (Principal Legal Officer)

For Respondent		Ms T.J.Magaya (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against an arbitral award handed down on 3 November 2014, which set aside the respondent’s dismissal from the appellant’s employment, and ordered his reinstatement.

The facts of the matter briefly outlined, are that the respondent was employed by the appellant as a messenger.  It is alleged that on 15 May 2012 the respondent teamed up with his colleagues and visited some shops within the Harare Central Business District, where they demanded spot fines from shop owners.  They did so after misrepresenting that they were licencing officials from the Council’s Licencing Inspectorate.  This expedition led to the respondent’s arrest on criminal charges of impersonation of police.  He was tried and acquitted of the criminal charges at the Harare Magistrates Court.

The appellant instituted disciplinary proceedings against the respondent after the criminal proceedings.  He was charged under Clause 115 (t) of the Collective Bargaining Agreement: Harare Municipal Undertaking (Employment Code of Conduct) Statutory Instrument 171 of 2010 (the Code).  The charge is framed as;

“Any act, conduct or omission grossly inconsistent with the fulfilment of express or implied conditions of one’s contract: express conditions are those that are clearly written in “	one’s contract of employment as read with the job description and implied conditions are those that they may not be specifically laid down in any document forming part of the contract of employment.”

On 19 October 2012, the appellant Disciplinary Committee found the respondent guilty as charged, and imposed a penalty of dismissal.  The respondent referred the matter to the Employment Council for the Harare Municipal Council.  Conciliation failed, and the matter was referred to compulsory arbitration.  This resulted in the arbitral award in contention.

Aggrieved by the arbitral determination the appellant filed an appeal with this court.  The grounds of appeal are stated as follows:

“1.	The Honourable Arbitrator erred at law when he made a legal finding that the applicant’s witnesses’ evidence was far away from logic and that applicant failed to prove the offence yet the evidence presented which corroborated each other was credible and admissible and proved on a balance of probabilities that the offence had been committed.

2.	The Honourable Arbitrator erred at law when he made a legal finding that the matter was marred with inconsistencies without mentioning the inconsistencies referred to and how those inconsistencies, if any, had the effect of vitiating the disciplinary proceedings and yet there were no procedural irregularities in the matter.

3.	The Honourable Arbitrator erred at law by failing to appreciate the offence faced by respondent, the essential elements of the offence and the nexus between the offence and the respondent hence he then failed to recognize that respondent had proved the essential elements of the offence and linked the respondent to the offence thereby discharging the onus on itself to prove the offence on a balance of probabilities.

4.	The Honourable Arbitrator’s award is so unreasonable and outrageous in its defiance of logic so as to constitute a ground of appeal.”

At the hearing of the matter counsel for both parties agreed that the matter be decided on the papers filed of record.  No oral arguments were made.

In its heads of argument, the respondent raised a point in limine.  It was to the effect that grounds of appeal 1 to 3 do not raise any point of law.  The respondent submitted that these grounds deal with the sufficiency of evidence adduced against the respondent and as such constitute findings of fact in respect of which no appeal lies with this court from an arbitral decision.  The argument, essentially, is that the findings of fact made by the arbitrator should not be interfered with.

A look at the grounds of appeal shows that indeed they emanate from factual issues.  It is about the sufficiency of evidence led, the alleged inconsistences in the witnesses’ statements, and generally the nexus between the offence and the respondent.  The arbitrator found that the evidence was insufficient to prove the alleged misconduct. That is a finding he made based on the facts placed before him.  In its grounds of appeal, the appellant referred to the legal findings of the arbitrator, when in fact, such reference was to the factual findings relating to the sufficiency of evidence.  It is erroneous therefore to refer to such findings as legal. The case referred to by the appellant, of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 does not support the view point advanced by the appellant.  There is no “question as to what the law is” in the averments made by the appellant in ground 1 to 3.  The averments are to the effect that the facts were wrongly assessed by the arbitrator.

If the appeal rested merely on the averment that the evidence was wrongly assessed, it would not be based on a question of law, and would therefore not be properly before the court.

It is however pertinent to note that the appellant went on to allege, in ground 4, that the findings by the arbitrator were grossly unreasonable and irrational.  In my view ground 4 cannot be read and considered in isolation.  The gross unreasonableness and irrationality of the arbitral award would, naturally, emanate from the findings made by the arbitrator.  As already indicated, these were findings of fact.  If, having regard to that evidence led, such findings are so outrageous, grossly unreasonable or irrational, they can properly be appealed against.  In this regard, the appellant referred to the often quoted remarks from the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664. In that case, KORSAH JA stated at page 670 that;

“The general rule of the law as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

The appellant, basically, is making the point that if the findings of fact constitute a gross misdirection, then that would amount to a question of law.  This proposition is correct in law.  The only problem is that it has not been clearly and well articulated in the appellant’s heads of argument.  The appellant could have been more succinct in postulating that legal position.  The point however, has been made, albeit inelegantly.

In the light of this, the appeal can properly be regarded as raising a question of law.  It seeks to demonstrate that the findings of fact are so grossly unreasonable that they amount to a misdirection in law.

More importantly, it must be noted that the arbitrator himself was considering the factual findings made at the hearing of first instance.  The question then arises as to whether such findings are so grossly unreasonable, so outrageous, so irrational that the arbitrator was justified in upsetting them.

In the circumstances, I find that the appeal is properly before the court.  The point in limine is accordingly dismissed.

I now turn to the merits.  In the first ground of appeal, the appellant avers that the evidence it adduced at the disciplinary hearing sufficiently proved the case against the respondent, on a balance of probabilities.  The arbitrator misdirected himself by holding that the appellant failed to prove its allegations.

The sufficiency or otherwise of evidence is basically a factual inquiry.  It is an inquiry into whether the factual finding of the Disciplinary Committee, which conducted the initial hearing, were reasonably and properly made.   As pointed out earlier in the judgement, when considering the respondent’s point in limine, a gross misdirection on the facts amounts to a misdirection in law.  The position of the law has been made clear, that an appellate tribunal will not lightly interfere with the factual findings of a tribunal of first instance.  It will only do so if gross misdirection is demonstrated.  This is more so where the court a quo heard oral evidence and assessed the demeanour and credibility of witnesses.  The appellate tribunal, to whom such witnesses do not again present themselves, does not enjoy the same opportunity of assessing the witnesses’ credibility.  See  S v Isolano 1985 (1) ZLR 62

In casu, the arbitrator was considering the factual findings of the Disciplinary Committee.

The record contains an executive summary of the evidence the Disciplinary Committee used.  Although this is not part of the indexed record, the parties agreed that these were the minutes of the disciplinary hearing.  The minutes, together with the executive summary of the findings, were submitted with the agreement of both parties.  The executive summary shows the evidence the Disciplinary Committee assessed, both oral and written.  Pertinent excerpts from page 2 to 3 of the executive summary read as follows:

“1st Witness, Mr Dennis Mupezeni

He is the accused’s immediate supervisor in the City of Harare. He allu8ded before the Committee that on 15 May 2012 the accused was on his official leave which he requested to sort his domestic affairs.  However, he told the Committee that he never assigned the accused for any Municipal licensing Inspectorate duties on 15 May 2012 but was only summoned to the Harare Central Police station in connection with the accused person as an employee of the City of Harare.

2nd Witness Constable Hopewell Bunya of Zimbabwe Republic Police

He gave oral evidence to the effect that the accused was using Harare Municipal Medical Aid Cards (HMMAS) as identity during his act of masquerading as Municipal licensing inspectorate official, which cards were retrieved by Police.  The Police Officer further told the Committee that he learnt from the accused’s Supervisor that he was never assigned the illegal duties he was performing and that he was designated Messenger.  He revealed that the accused was detained in the cells before he appeared to the Court upon which he paid US$50 as bail out.  He also further stated that the accused later came requesting for the HMMAS cards alleging that he wanted to use them for treatment and was given on record by the police.

3rd Witness Ms Rosemary Vambe

Ms Vambe is a Director of Telwest (Pvt) Ltd trading as Ashava Designer shop in Harare along Robson Manyika Road.  It was her evidence that the accused disturbed her prior to the 15 May 2012 by requesting a shop licence that is on the 11 May 2012 when she was in a meeting at her shop premises.  She was shown a HMMAS Card by the accused person upon whom she phoned Chief Inspector Sabau following suspicion of continued various bogus officers in the Central Business District purporting to be officials from the City of Harare’s licencing Inspectorate.

4th Witness Chief Inspector James Sabau of Zimbabwe Republic Police

He gave oral evidence that he was phoned several times that there was a police officer with the same surname as his in company of four others (including the accused) who were masquerading as Municipal Licensing Inspectorate officials.  On the 11th of May 2012 he was again phoned by Ms Rosemary Vambe over suspected bogus licensing officials and on 15 May 2012 when he was phoned by Police Officer Musara that there was a group of People among them was a Police Officer by the name Sabau (including the accused person).  He said on suspecting foul play over the use of his name as Public figure he finally visited the scene in which the accused and his colleagues were masquerading as genuine licencing officials leading to the accused’s arrest.”

This summary of evidence, which was assessed and accepted by the Disciplinary Committee, shows that the respondent was on leave on 15 May 2012.  It also shows that on 11 May 2012 the respondent approached Ms Rosemary Vambe and requested for a shop licence.  He exhibited a Harare Municipal Medical Aid Society (HMMAS) card as a form of identification.  Among the respondent’s team there was one who presented himself as Sabau, which is the name of Chief Inspector Sabau.  Alerted that there was a police officer using the name Sabau, and concerned about such use of his name, Chief Inspector Sabau went to the scene, leading to the respondent’ arrest, together with those who were in his company.

This evidence persuaded the Disciplinary Committee that the respondent was guilty of misconduct, in terms of the provision cited.  His conduct was found to be grossly inconsistent with the terms and conditions of his employment.

It is important to examine how the arbitrator faulted the Disciplinary Committee for accepting this evidence.  This should assist in determining whether the arbitrator misdirected himself as averred by the appellant.

After stating the basic principle that he who alleges must prove his allegation, the arbitrator then expressed his views about the evidence against the respondent.  This is all he had to say:

“In the circumstances the respondent in my view has therefore failed to discharge the burden on him to prove that the misconduct took place.  The evidence of the witness is far away from logic taking into cognisance inconsistences marred in the matter.  The witness failed to pin down the accused and therefore the absence of cogent proof will fall the allegations.”

From this, it is difficult to appreciate the basis on which the arbitrator faulted the evidence that was placed before the Disciplinary Committee.  It is a terse statement to the effect that the appellant “failed to discharge the burden on him to prove that the misconduct took place”.  The analysis does not go on to show in what respects the appellant failed to discharge the onus.

The arbitrator also appeared to have been influenced by the fact that only the respondent was charged with misconduct and not the other employees.  This is what he stated;

“Moreover, when the misconduct took place was the claimant the only respondent’s employee in all fairness substantively, the respondent when dealing with disciplinary hearing the rules must be applied consistently in such a way that no other employees would be allowed to get away with the misconduct.”

This approach to the matter was clearly wrong.  It has been stated that it is the prerogative of the employer as to who to charge with misconduct.  Thus an employee cannot avail himself the defence that others who could also have been charged were not charged.  See Lancashire Steel (Pvt) Ltd v E.Z. Mandovena & Others SC 29/95.

There is also reference to the respondent’s acquittal in a criminal court.    His short analysis appears to take into account the criminal acquittal.  The position is trite that the standard of proof in criminal proceedings is distinct from that in civil proceedings.  The former require proof beyond a reasonable doubt.  The latter require proof on a balance of probabilities.  See ZESA v Dera 1998 (1) ZLR 500 (S).

There was therefore no basis on which the arbitrator upset the findings of the Disciplinary Committee, on the sufficiency of the evidence placed before it.  The evidence looked at, on a balance of probabilities, establishes the misconduct alleged.  The acts complained of clearly constituted conduct inconsistent with the express or implied terms and conditions of the respondent’s contract of employment.

There is another dimension to this matter, that of procedural fairness.  The respondent’s notice of response dwells on this aspect considerably.  In fact, of the six paragraphs making up the notice of response, five focus on procedural aspects.  Only paragraph 6 addresses the merits.  The procedural aspects include composition of the Disciplinary Committee and alleged bias.

It seems these issues were abandoned by the respondent, as they do not feature at all in his heads of argument.  This is so despite the appellant having addressed the issues in its heads of argument, paragraphs 68 – 90, as these had been raised in the notice of response.  None of these issues is pursued in the respondent’s heads of argument.  These focus wholly on the substantive issues, such as the credibility of witnesses.  The court was therefore not given any basis on which to assess the arguments on the alleged procedural unfairness.  The issues may reasonably be regarded as having been abandoned.

Moreover, the arbitrator’s analysis is completely silent on the procedural issues.  This is despite the issues having been raised in the respondent’s statement of claim.  The arbitrator summarised the procedural issues raised, but made no reference to them at all in his analysis, findings and conclusion.

The arbitral award therefore demonstrates no basis on which the Disciplinary Committee decision may be set aside.  No gross unreasonableness, or even unreasonableness, has been shown to exist in the factual finding of the Disciplinary Committee.

Grounds of appeal 2, 3 and 4 essentially raise the same issues addressed in my analysis of ground 1.  It is the sufficiency of evidence, based on the factual findings of the Disciplinary Committee, and the test of gross unreasonableness or irrationality.  In the circumstances, it is my considered view that the appeal has merit and must be upheld.

On the question of penalty, the gravity of the respondent’s conduct cannot be overemphasised.  The appellant submitted in paragraph 100 of its heads of argument, that the offence falls under Category Four offences, which constitute gross misconduct.  Such offences attract a penalty of dismissal.  The appellant obviously viewed the respondent’s actions seriously.  The conduct “tarnished the image of the appellant in the face of the residents”.

There is no basis for interference with such a penalty. In the circumstances the appeal must succeed in its entirety.

It is accordingly ordered that;

The appeal be and is hereby allowed.

The arbitral award of 3 November 2014 be and is hereby set aside.

Each party bears its own costs.

Magaya-Mandizvidza, respondent’s legal practitioners