Innscor Africa v Obey Mabharo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/352/16
HELD AT HARARE ON 7 JULY 2015
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE          JUDGMENT NO LC/H/352/16

HELD AT HARARE ON 7 JULY 2015		      CASE NO LC/H/237/15

& 27 MAY 2016

In the matter between:-

INNSCOR AFRICA						Appellant

And

OBEY MABHARO						Respondent

This is an appeal against an arbitral award handed down by the Honourable M Mpango Arbitrator on the 23rd of February 2015. The operative part of the award reads as follows.

AWARD

“WHEREFORE, after carefully analysing the facts and the law, I make the following award.

The Claimant is hereby reinstated to his position without loss of salary and benefits with effect from the date of dismissal.

That if reinstatement is not an option, the Claimant should be paid damages to be agreed by the parties within fourteen (14) days from the date of the arbitral award, failing which either party may approach the arbitrator for quantification.

I so award.”

The material background facts to the matter are as follows. The Respondent was employed by the Appellant as a driver. On the 25th of April 2012 the Appellant following investigations had Respondent arrested on allegations of theft and use of the company motor-vehicle without authorisation. The Respondent had subsequently been released on bail on the 30 of April, 2012. On the 2nd of May 2012 the Respondent was again arrested on allegations of theft whilst he was on bail.

The Appellant then invited the Respondent to a Disciplinary hearing to be convened on the 22nd of May, 2012. The Respondent however failed to appear. The Disciplinary Committee reconvened another hearing on the 31st of May 2012. The Respondent again failed to turn up resulting in the Disciplinary Committee proceeding to hear the matter. The Respondent was found guilty in absentia and a dismissal penalty was imposed. The dismissal was with effect from the 22nd May, 2012. The Respondent did not appeal against the decision. Instead he in October 2012 referred a complaint of unfair dismissal to the designated officer. When the matter could not be resolved the designated officer then referred the matter to compulsory arbitration.

The main issue before the Arbitrator was whether the Respondent had been unfairly dismissed. At the hearing the Appellant took a point in limine that Respondent who was represented then by Baking Industry Workers Union could not be represented by the union on the basis that Respondent was not a member of the union. The Arbitrator reached the conclusion that the Union could represent the Respondent. He also found that the Respondent was unfairly dismissed. The Arbitrator then handed down an award in terms as referred to supra.

The Appellant was aggrieved by the award. The Appellant noted the present appeal on the following grounds of appeal;

“Grounds Of Appeal

The Arbitrator erred in law in dismissing the point in limine.

The Arbitrator erred in law in not affording the Appellant the opportunity to be heard on the merits.

The Arbitrator erred at law in finding that there had been an unfair dismissal when the evidence before him established that the Respondent was dismissed in terms of an employment code.

The Arbitrator made a gross misdirection of fact that amounted to a misdirection at law in that he found that there was reasonable cause for the Respondent’s absenteeism when there was no evidence before him of this fact.”

The appeal is opposed by the Respondent on the following basis; that the Honourable Arbitrator made a correct finding at law that the Respondent was unfairly dismissed; that the Arbitrator correctly dismissed the point in limine raised by Appellant; that the Arbitrator made a correct finding in law in that there was reasonable cause for Respondent’s absenteeism.

The first point taken by the Appellant is that the Arbitrator erred in law in dismissing the point in limine. The Appellant submission on the point is premised on Section 92 of the Labour Act [Cap 28:01]. That section according to Appellant provides that an employee must be represented by a Union of which the employee is a member or by a legal practitioner. The Appellant submits that having submitted before the Arbitrator that as the employer responsible for remittance of union dues on behalf of Respondent it had not paid any subscriptions on behalf of the Respondent to the Baking Industry Workers Union the Arbitrator erred in finding otherwise. The Appellant had also tendered evidence of the Respondent payslip to show that no union dues had been deducted from Respondent’s salary in favour of the union concerned. The Respondent himself did not reply to the point in limine. The Appellant submission is that despite the evidence so tendered the Arbitrator proceeded to dismiss the point in limine in the absence of any evidence to support his position. On this basis it is Appellant submission that the Arbitrator erred at law and his award ought to be set aside.

The Respondent submissions in counter was that the issue of representation was not raised at the conciliation stage. It was not therefore included as a term of reference. The Arbitrator therefore was correct in dismissing the point and continuing with proceedings. The Respondent also sought to introduce a new argument through his heads of argument that the Arbitrator was correct on the basis of Section 6 (2) of the Union Constitution. This last point not having been raised before the Arbitrator is clearly improperly taken before this court. The court cannot place any reliance on it.

It is very clear that the Arbitrator by dismissing the point in limine misdirected himself in law in two material respects. Firstly the issue of representation i.e. as to who is representing a party before the tribunal is in itself a question of law. Section 92 of the Labour Act [Cap 28:01] to which the Arbitrator was referred is very clear as to who has the right of representation in the Labour Court/Tribunal. It can only be either a Trade Unionist from the Trade Union of which the party is a member or by a Legal Practitioner. Section 92 of the Labour Act [Cap 28:01] reads as follows;

“A party to a matter before the Labour Court may appear in person or be represented and appear by—

(a) a legal practitioner registered in terms of the Legal Practitioners Act [Chapter 27:07]; or

(b) an official or employee of a registered trade union or employers organisation of which the party is a member.”

The issue being a question of law it follows that it can be raised at any stage of the proceedings even on appeal. The fact that the issue had not been raised at conciliation was clearly neither here nor there. Once the point had been raised before him the Arbitrator was duty bound to determine the point as raised before him. The Arbitrator could not afford to dismiss it cursorily as he did in the present matter.

The second misdirection by the Arbitrator is that the point having been placed before him by the Appellant the Arbitrator was duty bound to consider in full the submissions made and any evidence tendered in support of the submission. It is clear from the record the Appellant tendered evidence in the form of Respondent payslip to back up its submission that no deductions were made in favour of the union. The Respondent however did not make any submissions on the point. The Respondent also did not tender any evidence to controvert the submissions made by the Appellant. The Arbitrator however proceeded to make the following findings;

“The Respondent submitted as evidence the Claimant’s pay slip show that no union dues were deducted from his salary. Does the deduction of salary during the life of the contract the only proof required to prove membership? What if the Claimant became a member after dismissal, is he precluded from becoming a member after dismissal? Section 28 of the Act provides that every trade union, ... shall ..(b) .... adopt a written constitution which shall provide for-

The qualification for membership, including membership fees, if any; and

The right of any person to membership if he is prepared to abide by the rules and conditions of membership.

The mere fact that union dues were not deducted from the Claimants does not itself mean that he was not a member of the union. The claimant could have joined the union after he was dismissed, can’t the union represent him? I think they can represent him.”

It is clear in reaching the above conclusions there were no submissions made before him by the Respondent. There was also no evidence placed before him by the Respondent to support the position that the union had right of representation. The Appellant having placed evidence before the Arbitrator in the form of the payslip to show that no union dues were deducted in favour of the union it was open to the Respondent to controvert that evidence. The Respondent however failed to place any evidence to rebut the evidence tendered by the Appellant. The conclusion so reached by the Arbitrator in the absence of any positive evidence presented before him to show that the Respondent had joined that particular union before or after his dismissal were therefore clearly wrong.

The conclusions were purely based on the Arbitrator’s supposition and mere whim. The Arbitrator ought to have considered the point in limine and determined it on the basis of the evidence tendered before him by the Appellant which evidence pointed to the fact that the Baking Industry Workers Union had no right of representation before him. He ought to have upheld the point in limine as taken by the Appellant. He should have taken the approach that the Labour Court took in the matter of Freddy Mashazhike and Innscor Africa LC/H/615/11 that having no locus standi the trade union was excused from the proceedings and the employee was advised to either seek alternative representation or self represent. The Arbitrator clearly misdirected himself in law in dismissing the point in limine.

Having reached this conclusion it is clear that the appeal ought to be allowed on this basis alone. It is not necessary for the court to determine the rest of the grounds of appeal which are otherwise predicated on the merits of the matter. It is accordingly ordered as follows;

The appeal be and is hereby allowed.

The arbitral award handed down on the 23rd February 2015 is hereby set aside.

There is no order as to costs.

Honey & Blanckenberg, appellant’s legal practitioners