George Makunde v Ndoro Mazasi Mavhura

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/661/2016
HARARE, 26 FEBRUARY 2016
CASE NO. LC/H/661/2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/661/2016

HARARE, 26 FEBRUARY 2016			               CASE NO. LC/H/168/13

AND 21 OCTOBER 2016

In the matter between:-

GEORGE MAKUNDE 	 				Appellant

And

NDOROMAZASI MAVHURA				Respondent

Before Honourable R.F. Manyangadze, J

For Appellant		C W Gumiro (legal Practitioner)

For Respondent		T. Muchineripi (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against an arbitral award handed down on 12 February 2013, in terms of which it was ruled that the respondent was unfairly dismissed, and should be reinstated to his employment with the respondent.

The brief factual background to the matter is as follows.

The respondent was employed by the appellant as a domestic worker. The appellant was at the material time the town clerk for the Municipality of Kariba. The respondent was a male domestic worker. It is not clear whether he was responsible for both gardening and household chores, or was confined to one area.

On 21 March 2012, the appellant dismissed the respondent from employment, on allegations of unauthorised absence from work.

The respondent lodged a complaint of unfair dismissal. The matter ended up at arbitration, which resulted in the arbitral award in contention.

The grounds of appeal are stated as follows:

“The Honourable arbitrator erred in holding that the respondent was dismissed without the conduct of a disciplinary hearing whereas it was clearly established that respondent was a domestic employee and that he was accorded an opportunity to be heard by his sole employer prior to dismissal.

The Honourable arbitrator erred in reinstating the respondent to his employ whereas it was established that the respondent had committed acts of misconduct that entitled dismissal by the employer”

A reading of the arbitral award does not show any analysis of the merits of the matter. This is inspite of the fact that the arbitrator indicated that she was going to hear the dispute afresh and resolve it on the merits. She then ordered reinstatement on the basis that the respondent was unprocedurally dismissed. This is what he stated, at page 3 of his award;

“According to the Labour Act Cap 28:01 Section 12B(1) states that dismissal for a cause must be in terms of a hearing done under an appropriate employment code-----Having perused documents filed and circumstances surrounding this matter it is noted that Ndoromazasi be reinstated back into his former position.” (emphasis added)

In the operative part of her award, the arbitrator then went on to order reinstatement, on the basis that the respondent was “unprocedurally dismissed”.

The issue therefore is whether the dismissal of the respondent, without a hearing, was proper. At the hearing of the matter, Mr Gumiro, for the appellant, formulated the issue as follows:

“The issue is whether or not the employer was obliged to conduct a hearing before dismissing the employee from employment.”

The appellant contended that there were only two people in the employment relationship, that of household owner and domestic worker. It was not possible to conduct a disciplinary hearing in such a situation. As long as the domestic worker understood, in a one-on-one discussion between the two of them, the reason for the termination of his employment, he would have been properly dismissed. The appellant expressed this in the following terms, in paragraph 5 of his heads of argument:

“It is submitted that an analysis of the nature of the relationship between the parties clearly show that it was virtually impossible for appellant to conduct a disciplinary hearing.  Respondent was employed as a domestic worker by the appellant.  It is therefore apparent that the “workplace” was constituted of 2 people only, being the appellant and respondent.  It was therefore virtually impossible for appellant to call for a disciplinary hearing in that he would have been the complainant, the judge and the prosecutor at the same time.  There is no way the disciplinary hearing could have been conducted.”

On the other hand, the respondent insisted that a hearing ought to have been done before he was dismissed. He emphasized that the principles of natural justice, in particular the audi alteram partem rule, ought to have been followed. In this regard, he made reference to numerous cases, where the right to be heard was underscored. The cases included:

Health Professional Council v McGown 1994(2)ZLR 329(S),

Jiah and Others v PSC and Another 1999(1) ZLR 17(S)

Professional Security (Pvt) Ltd v Mazoe LC/H/169/05

Further to the common law principles, the respondent referred to the statutory requirements for dismissal enshrined in the Labour Act (Chapter 28:01) (the Act). Mr Muchineripi, for the respondent, contended during oral submissions:

“On record, there is no evidence to suggest that a hearing was done, let alone the alleged interface, in fulfilment of the law. We have not been furnished with any record of proceedings to prove the alleged interface. On that alone, the appeal should fail.”

The point being emphasized by Mr Muchineripi, it seems to me, is that the provisions of the law relating to the dismissal of employees, must be scrupulously adhered to. These provisions permit no derogation. Mr Muchineripi further submitted that the appellant was duty bound to appoint an independent person to enquire into the case and come up with a determination, notwithstanding the costs involved.

The law relating to dismissals is provided for in section 12B of the Act. In particular, section 12B sub-sections (1) and (2) read as follows:

“(1) every employee has the right not to be unfairly dismissed.

(2) An employee is unfairly dismissed –

(a)	 if, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or

(b)	in the absence of an employment code, the employer shall comply with the model code made in terms of section 101 (9)”

There is no employment code governing disciplinary issues for domestic workers. The regulations currently in place are the Labour (Domestic Workers) Employment Regulations Statutory Instrument 377 of 1992.

These regulations relate to domestic workers’ conditions of service such as working hours, leave, grading and remuneration. They do not provide for disciplinary issues. There is no code of conduct, registered or otherwise, specific to this sector. In terms of section 12B (2) (b) of the Act, the model code would therefore have to govern disciplinary issues for domestic workers.

The model code is provided for in the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 (the National Code). The relevant provisions are found in sections 5 and 6 of the National Code, which read as follows:

5. Termination of contract of employment

“No employer shall terminate a contract of employment with an employee unless—

(a) the termination is done in terms of an employment code which is registered in terms of section 101(1) of the

Act; or

[Paragraph amended by S.I. 232 of 2006.]

(b) in the absence of the registered code of conduct mentioned in (a), the termination in terms of the National

Employment Code of Conduct provided for under these regulations; or

(c) the employer and employee mutually agree in writing to the termination of the contract; or

(d) the employee was engaged for a period of fixed duration or for the performance of a specific task and the

contract of employment is terminated on the expiry of such period or on the performance of such task.

[Paragraph amended by s.i. 232 of 2006.]

6. Disciplinary procedure

(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 or employment, if the

grounds for his or her suspension are proved to his or her satisfaction; or

(b) serve a notice, in writing, on the employee concerned removing the suspension and reinstating such

employee if the grounds for suspension are not proved.

(3) A determination or order served in terms of subsection 2(b) shall provide for backpay and benefits from the

time of the summary suspension.

(4) At a hearing in terms of subsection (2), an employee shall have the right to—

(a) at least three working days notice of the proceedings against him or her and the charge he or she is facing;

(b) appear in person before the employer or the employer’s representative or disciplinary authority as the case

may be and be represented by either a fellow employee, worker’s committee member, trade union

official/officer or a legal practitioner;

(c) call witnesses and have them cross-examined;

(d) be informed of the reasons for a decision;

(e) address in mitigation before the ultimate penalty is imposed.”

Ideally, the most preferable option would be termination in terms of section 5 (c) of the National Code, where “the employer and employee mutually agree in writing to the termination of the contract”. However, the realities of human relations, in particular the employer/employee relationship, are such that a convergence of interests is not always possible.  This makes it necessary for the parties to go through an adjudication process. How that process is carried out, will depend on the nature of the employment relationship and the available legal framework.

The appellant does not really take issue with the requirements of the law, be it the common law principles of natural justice, or the statutory provisions referred to. His contention is that he did not fall foul of the law. He held what he termed an “interface discussion” with the respondent. In that interface, the respondent was made aware of his misconduct and why he was being dismissed. Nothing more than that was required, given the peculiar situation in which he was the sole employer and the respondent the sole employee.

I find the position the appellant is advancing somewhat contradictory. As already indicated, he has emphatically argued that he cannot be the complainant, prosecutor and judge at the same time. That is a reasonable argument, given the nature of the employment relationship between the two. One does not need to be an expert jurist to see the absurdity of the appellant himself conducting a hearing on misconduct allegations he is levelling against his domestic worker. Needless to say, it would violate all the principles of natural justice over which the respondent has expressed concern.

In the same breath, the appellant is contending that he conducted a hearing of some sort, which he preferred to call an interface. The exact form that interface assumed has not been explained. I do not see it being anything other than him confronting the respondent with allegations of the misconduct in question, the latter attempting to give his side of the story, the appellant then concluding that the respondent is guilty, and meting out the punishment of dismissal. Such a scenario would be exactly what the appellant contended he was unable to do, because of his peculiar position of being the sole employer

The position advanced by the respondent also presents some serious challenges.  His position is that the provisions of the National Code must be strictly adhered to. These provisions require a fairly elaborate process involving formulation of charges, notification of a hearing, and convening of the hearing before a disciplinary committee or authority. It would be cumbersome and costly to have such processes, structures and measures put in place in a household or domestic set up. Even if the employer is well resourced and somehow manages to put in place disciplinary machinery, it is most unlikely that it will be perceived as impartial by the domestic worker.  It is likely to be seen as the employer’s effort to get rid of him or her.  This highlights the need for a platform for impartial adjudication for this category of workers.

The appellant referred the court to the case of Medical Investments (Pvt) Ltd t/a as Avenues Clinic vs Phiri SC266/96. He averred that the case is to the effect that an internal inquiry is not always possible or necessary. The appellant did not point out any portion of that judgment where the court held as averred. My reading of the judgment did not reveal such holding. The judgment shows the disciplinary processes that were followed in the old labour law regime, where approval by the Minister of Labour was required before an employee could be dismissed.

There was no internal disciplinary hearing on the basis of which the employee could be dismissed. This was because the system provided for an investigation and enquiry by a labour relations officer.  The judgment shows that the employee was suspended on 23 October 1987.  The labour relations officer concluded his enquiry on 13 November 1987.

What happened in that case was that the respondent, who was employed as a ward maid, was suspended for various acts of misconduct, which included absenteeism, insubordination and use of abusive language. She was suspended pending the process of obtaining the Minister’s approval to terminate her employment. That process involved her having to go through the various levels of the disciplinary hearing structures then prevailing. These levels included a labour relations officer, a regional hearing officer, Labour Relations Board and Labour Relations Tribunal.

The labour relations officer determined that there was insufficient evidence to prove the alleged misconduct. The employer appealed to the Regional Hearing Officer, who overturned the labour relations officer’s determination. The employee appealed to the Labour Relations Board, which dismissed her appeal. She appealed to the Labour Relations Tribunal, which upheld her appeal and ordered her reinstatement. The employer appealed to the Supreme Court, which granted the appeal and set aside the Tribunal’s determination, finally resulting in the employer having the authority to terminate her employment. This tortuous journey commenced in 1987, and ended in 1996, a period of 9 years. Parties to an employment contract in a private household certainly do not expect to go through such protracted and harrowing litigation in order to terminate the contract.

What is however significant to note is that throughout the various levels of litigation in that case, what was considered was the sufficiency of evidence establishing the alleged misconduct. An enquiry was held, beginning at the labour relations level, wherein evidence against the employee was heard and considered. That is an integral, indeed indispensable, component of due process in disciplinary proceedings. How it is achieved will depend very much on the regulatory framework in place, and the circumstances of each case. In that case, the regulatory framework was such that the enquiry had to be held using the structures provided for in the Ministry of Labour. These structures were outside the workplace. One had to go through the structures, in order to obtain approval to dismiss an employee.

In casu, the regulatory framework had been liberalised. It was now the era of collective bargaining agreements concluded under National Employment Councils (NEC). Dismissal could take place at the workplace level, in terms of NEC negotiated Codes of Conduct. The appellant, it appears, took advantage of the liberalised regime, and conducted a workplace enquiry, which he has termed an interface. Unfortunately for him, and the domestic work sector as a whole, there are no NEC structures under whose framework a collective bargaining agreement , incorporating a code of conduct, has been negotiated and concluded.  This necessitates recourse to the National Code.

A disciplinary process conducted in terms of the National Code eventually ends up at conciliation before a labour officer, and subsequently arbitration. It ends up at these levels after going through all the adjudication processes available at the workplace, as provided for in sections 6 – 8 of the National Code.  A household cannot reasonably be expected to have such workplace level disciplinary structures or mechanisms.

In the absence of disciplinary structures at the household level, it seems to me the most appropriate course of action would have been to refer the dispute to a labour officer from the outset. Conciliation efforts could possibly have helped the parties find each other. The problem with this case is that the parties went to conciliation after the appellant had already dismissed the respondent, having investigated, prosecuted and adjudicated over the matter all by himself. Attitudes were, most likely, already hardened for any amicable resolution.

The importance of conciliation, in certain circumstances, was highlighted by John Brand et al, in the book, Labour Dispute Resolution, 2nd edition, at pages 114-115.  The learned authors stated;

“More recent experience has however shown that conciliation can play a useful role in resolving conflicts of right such as dismissals.  The tendency is toward attempting to see consensus in all disputes prior to the use of power or adjudication.

Conciliation is particularly helpful in the following circumstances:

when relationships are important;

when the parties want control of the outcome;

if there is no great disparity in power;

when speed is important;

when confidentiality is important;

when both parties need the opportunity to ‘let off steam’;

when neither side really wants to litigate;

when the parties are unable to talk to one another directly;

when the parties have neither the skill nor the desire to talk to one another; or

when parties cannot find a solution themselves.”

The dispute in casu fits in some of the circumstances outlined by the authors. The South African system, in the context of which they wrote the above – cited book, provides conciliation through institutions like the CCMA (Commission for Conciliation Mediation and Arbitration) and Industrial Councils. Our system provides this platform or forum through labour officers or NEC designated agents.  For domestic workers, it would have to be labour officers, as there are no NEC designated agents specific to their sector.  If, at the workplace level between the two parties, mutually agreed termination proves unachievable, referral to third party conciliation, through the institutions provided by law, in my view, should be the route to take.  Any attempt by the employer herself or himself to conduct a disciplinary hearing and dismiss at the the workplace level, will only leave her or him facing serious legal challenges.  The propriety or otherwise of such a disciplinary hearing will be questioned vis avis the well established principles of natural justice, the same way the hearing purportedly done by the appellant in the instant case has been challenged.

When conciliation fails, the matter proceeds to adjudication. In this case, it was arbitration. Given the peculiar background to this matter, the arbitrator should have placed herself in the position of a tribunal of first instance, and hear evidence from both parties. This is what the arbitrator purported to do, but is not borne out by her award. This would have remedied the handicap the appellant suffered, as he was not in the position of an impartial adjudicator. The arbitrator was in that ideal position.  The matter would then have come to this court as an appeal on the merits, depending on how the arbitrator would have assessed the evidence on the alleged unfair dismissal.

It must be pointed out that the conciliation and adjudication process, for disputes of right, has been changed by the Labour Amendment Act No. 5 of 2015.  Labour Officers now have the power to adjudicate over disputes referred to them.  The labour officer hands down a ruling, which is referred to the Labour Court for confirmation.  Since the dispute in the present case occurred prior to the promulgation of the Labour Amendment Act, it had to go through the process in force at that time, viz conciliation by a labour officer, followed by adjudication by an arbitrator.

Whether it is in the pre- or post Labour Amendment Act regime, the pertinent question remains – whether an employer in the position such as the appellant found himself in, is obliged to conduct a disciplinary hearing before referral to a labour officer.  For reasons already indicated, the court is of the view that straight referral to conciliation is more preferable.  It is the route the appellant should have taken, instead of taking it upon himself to investigate, charge, prosecute, convict and dismiss the respondent.

This court, in the case of Miriam Makwara v Kasipiti Children’s Home LC/H/215/16, was faced with a more or less similar situation.  The respondent, a children’s home, did not have disciplinary mechanisms in place to deal with an employee accused of misconduct.  It made a straight referral of the dispute to the relevant NEC, without attempting to hear the dispute itself.

The appellant raised the point that referral to conciliation and subsequently arbitration was unprocedural, as no hearing had been held at the workplace.

The court held that what the respondent did i.e. referral to conciliation without a workplace hearing, was proper and was the best that could be done under the circumstances.  It remarked, at page 3 to 4 of the cyclostyled judgment:

“This, it seems, is what influenced the arbitrator in proceeding to handle the matter.  In her analysis of the parties’ submissions, she remarked;

“The applicant could not proceed to conduct a hearing due to incapacity in terms of the NEC Code where a disciplinary committee has to be there.  The applicant was crippled to conduct the hearing.  In terms of the NECWEI Code there is no provision for a disciplinary authority, therefore the applicant (employer) deemed it fit to refer the matter as a dispute for it to be resolved amicably.  Therefore I see no prejudice in referring the matter to NEC because the employee (respondent) was afforded the right to be heard before the audience of NEC at conciliation stage and subsequently arbitration.  At arbitration both parties were present and the claimant outlined her charges and the respondent made a submission to the charges and therefore the arbitrator will proceed to look into the merits as filed.” (underlining added)

It is the court’s considered view that the arbitrator cannot be faulted for adopting this approach, in the circumstances……

It appears the respondent did the best it could under the circumstances, to ensure that the appellant was accorded her fundamental rights, and was not prejudiced in this regard.

Reference was made to the case of Dulys Holdings v Chanaiwa 2007 (2) ZLR (1) (S).  In that case, GWAUNZA JA stated;

“The appellant’s argument that it did the best thing under the circumstances to ensure that the respondent had a fair hearing cannot, in my view, be faulted.  To the extent that the respondent was given an opportunity to answer to the charges and present his side of the story, he should not be heard to say that there was no observance of the audi alteram partem rule.  The court a quo correctly noted in its judgment that the rules of justice required no more than that the domestic tribunal acts according to the common sense precepts of fairness.  Given the circumstances outlined above, I respectfully disagree with the court a quo’s conclusion that it could, in casu, not be said that the rules of natural justice were observed.  I am satisfied that the respondent was, therefore not prejudiced in any way by the disciplinary procedures followed.

The appellant argues, correctly, that the adoption of disciplinary procedures not specifically outlined in the Code finds support in ZFC v Geza 1998 (1) ZLR 137 (S), where this court emphasized the importance of flexibility in the conduct of disciplinary tribunals, and the principle that they were there to conduct an enquiry.  It cannot, in my view, be said in this case that the disciplinary tribunal did not conduct an inquiry.”

In the instant case, it cannot be said that the appellant was denied her rights.  She was not prejudiced by the proceedings before the NEC and the arbitrator.”

In casu, there were no disciplinary mechanisms at all at the workplace, being a household. Straight referral to a labour officer, it seems to me, would have provided an impartial forum. It would avoid placing the employer in the invidious and preposterous position of being a judge in his own cause.

As I have indicated earlier, the arbitrator disposed of the matter on the procedural question of whether or not a hearing was conducted before the respondent’s dismissal. There is nothing in the arbitral award addressing the substantive question of the sufficiency of evidence establishing the alleged misconduct. I am inclined, in the circumstances, to remit this matter to arbitration, for determination on the merits.

The appeal therefore partially succeeds, to the extent that the arbitral award is set aside.  The matter however, is to be remitted for determination, on the merits, of the lawfulness or otherwise of the respondent’s dismissal. What this means is that the parties revert to the status quo ante i.e. the position prior to the date of the arbitral award, until the contested dismissal is properly determined.

It is accordingly ordered that;

The arbitral award granted in favour of the respondent on 12 February 2013 be and is hereby set aside.

The matter be and is hereby remitted to a different arbitrator for determination on the merits.

Each party bears its own costs.

Ngarava, Moyo & Chikono, appellant’s legal practitioners

Muchinerpi & Associates, respondent’s legal practitioners