Innscor Africa Limited v Darlington Manyange

IN THE LABOUR COURT OF ZIMBABWE                         JUDGMENT NO. LC/H/74/2013
HELD AT HARARE ON 26 OCTOBER, 2012                   CASE NO. LC/H/517/2011
In the matter between



INNSCOR AFRICA LIMITED                                        Appellant
And

DARLINGTON MANYANGE                                         Respondent


Before The Honourable L. Kudya, President
For Appellant         -       Mr. B. Taruvinga(Human Resources Manager)
For Respondent        -       Ms E.Masango(Unionist)



KUDYA, L.


       This matter came as an appeal against the arbitrator’s award which

ordered the reinstatement of the Respondent to his former position at work

without loss of benefits, alternatively that the Appellant company was to pay

him damages in lieu of reinstatement if it was of the view that reinstatement

was no longer possible.



       The basic ground of appeal which was cited by the Appellant company

was couched in the following words: ”The arbitrator failed to observe principles of natural
justice as he conspicuously displayed bias against the applicant as he made a decision without

calling parties to appear before him” In particular it was the respondents argument

that its right to be heard had not been observed by the arbitrator because it

was not given a chance to make oral submissions and to call its witnesses on

the matter. It therefore prayed that this court sets aside the arbitral award and

substitute it with an order to have the case heard afresh and in procedurally

correct manner.
      The brief chronology of events leading to the instant appeal is as follows.

Respondent who was in the employ of the appellant company as a kitchen

porter was charged with contravening section 4 (d) of SI 15/06 it being alleged

that, he together with his workmates defrauded appellant company.
                                              JUDGMENT NO. LC/H/74/2013



      The fraud allegations saw respondent appearing before the criminal

court where charges were dropped for lack of evidence. On 15 July 2009 a

hearing on the matter was conducted at the workplace in the respondent

absence on the basis that he had failed to turn up on the day scheduled for the

hearing despite being aware of the hearing date.          The respondent was

accordingly found guilty of the misconduct complained of. He was therefore

summarily dismissed on 20 July 2009



      In February 2010 the matter was brought for arbitration. On 15 July 2011

the arbitrator made the determination which is now the subject of the instant

appeal.



      Most of the facts stated above are not disputed. What is in major dispute

is the appellant’s argument that it was denied the chance to be heard by the

arbitrator. Appellant stated that then the matter was before arbitration it

requested time to call its witnesses as well as the chance to present its

evidence. To its surprise it however discovered that the arbitrator had decided

on the matter without affording it the chance to    give evidence and to call its

witnesses.
      On the other hand the respondent argues that the line of argument

advanced by the appellant is palpably false .His argument is that the appellant

was granted ample time by the arbitrator to present its case to the extent that

the matter had to drag on beyond a year awaiting the appellant’s written

submissions which the arbitrator needed to work with.



      A reading of the arbitrator’s award demonstrates that all his efforts to

deal with the matter on the merits were frustrated by the appellant who time

and again promised to bring in its submissions on the matter until the

arbitrator decided to conclude the matter without sight of those submissions.




                                            JUDGMENT NO. LC/H/74/2013



      As far back as March 2010 according to correspondence on the record

the arbitrator had started asking for submissions from the parties concerned.

Even a reading of his decision demonstrates that he had to issue a default

award because there had been nothing forthcoming from the appellant. His

story is corroborated by the respondent’s argument that the matter only got to

be concluded without the appellant’s submissions because the appellant

deliberately withheld from the arbitrator information on the matter which he

had to decide.



      There is nothing on the record or the submissions by the parties which

shows that the arbitrator denied the appellant the chance to be heard. In actual

fact a further reading of the record in particular the minutes of the hearing of
the respondent’s case by the appellant demonstrate lack of seriousness on the

part of the appellant.



        The minutes in question show that the employer did not apply its mind to

the proceedings which gave rise to the respondent’s dismissal. Of particular

note are the handwritten notes when the committee decided that the employee

was guilty where the following words were taken down in reference to the

respondent’s guilt
“----------today he did not turn up which shows that he has a case to answer “


        This is all that was taken as pertinent which was discussed to found the

respondent’s dismissal. Such a cursory approach by the appellant gives

credence to the version by the arbitrator and the respondent that the appellant

deliberately chose not place before the arbitrator information pertaining to the

case in question when the matter was now at arbitration. It is even no surprise

that the criminal case was dismissed because if the standard displayed by the

exhibit referred to above is the appellant’s standard then it leaves a lot to be

desired.



        The court fails to appreciate how it can be said that the arbitrator

misdirected himself as there is no basis for holding such a view. At some point

as borne out by
                                                         JUDGMENT NO. LC/H/74/2013



the record of proceedings before this court,the court was almost tempted to

have the matter remitted but upon careful consideration of the scanty notes on

the    hearing minutes referred to, the court formed the opinion that the

appellant lacks
seriousness in its handling of its employer -employee issues and this court can

aid it in breaking the law in that respect .



      The court was therefore convinced that there is no basis to interfere with

the arbitral award at least from the issues discussed above. This court is

therefore convinced that the appellant failed to make out a good case for the

upsetting of the arbitral award. That award is therefore upheld as it does not

answer to the misdirection alleged by the appellant.



It is thus ordered as follows



   1) That the appeal being without merit be and is hereby dismissed with

      costs.

   2)The arbitral award is upheld in its entirety.




Signed     ______________________

L. Kudya
President – Labour Court




Z.C.H.W.U – Respondent’s Representative