J. Manjeesee and Another v Zimbabwe Open University

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/354/2013
HELD AT HARARE ON 27th JUNE
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IN THE LABOUR COURT OF ZIMBABWE	         	   JUDGMENT NO. LC/H/354/2013

HELD AT HARARE ON 27th JUNE

& 13th SEPTEMBER 2013 	                                    CASE NO. LC/ H/683/2011

In the matter between

J. MANJEESE AND ANOTHER		 –	Appellants

And

ZIMBABWE OPEN                               _ 	Respondent

UNIVERSITY

Before The Honourable L. Kudya, President

For Appellants	-  E. Mangezi (Legal Practitioner)

For Respondent  	-  A.K. Maguchu (Legal Practitioner)

KUDYA, L.

This is an appeal against the decision of the Arbitrator who confirmed the dismissal of the Appellants by the Respondent University.

Facts of the case are that; the Appellants who were employed as Information Record Clerks by the Respondent were brought before a Disciplinary Committee on allegations of conducting themselves in a manner inconsistent with the conditions of their employment and fraud in contravention of the National Code of Conduct SI 15 of 2006.

The Disciplinary Committee found them guilty and they were dismissed from work.  Aggrieved by their dismissal, they took their matter up on appeal within the Respondent’s hierarchy.  The appeal was not concluded and this led the Appellants to a Labour Officer who tried to conciliate over the matter without success. Subsequently, the matter went to arbitration where the Appellants’ dismissal was confirmed.  It is the confirmation of the dismissal which led the Appellants to lodge the instant appeal which is the subject of this judgment.

The grounds of appeal are as follows

Arbitrator erred to accept that the Disciplinary Committee should have been constituted in terms of the Labour Act (Chapter 28:01) instead of the Z.O.U Act Cap 25:20.

Arbitrator erred by finding that the Disciplinary Committee could hear the matter outside the provisions of the Z.O.U Act.

Arbitrator erred by placing onus of proving who had tampered with the passwords on the Appellants.

Evidence used to convict the Appellants was inconclusive in the circumstances.

Arbitrator’s finding defied logic and common sense to the extent that no other court applying its mind could have arrived at a similar decision.

In response to the appeal the Respondent maintained that:

The Labour Act is superior to all other statutes in labour matters hence the Arbitrator’s decision to confirm the usage of the Labour Act instead of the Z.O.U Act cannot be faulted.  In view of the matter being a labour matter, the key issue should not be the manner in which the hearing was conducted but whether the Appellants are guilty.

Since the alleged “acting outside Z.O.U. Act” was informed by the Labour Act, such conduct was not unlawful.  It was in keeping with the statutory provisions regarding the superiority of the Labour Act over other Statutes on employment issues.  Since instant case was a labour matter, the key issue should not be the manner in which the hearing was conducted but whether the Appellants are guilty.

At arbitration, Appellants were the Claimants hence the duty to show that the Disciplinary Committee decision was flawed lay with them but they failed to do so.  Once again, key issue should not be the manner in which the hearing was conducted but whether the Appellants were guilty.  The matter can thus not be remitted only for the law, where it is clear that the party is guilty.  Besides, the first issue is whether the passwords were changed or altered.  Only after that can the question of who altered them become relevant.  The ground of appeal is not of consequence because the issue of whether the passwords were altered was not challenged.

Appeals to the Labour Court from Arbitration are limited to issues of law.  The ground of appeal lacks detail and specificity on how it is said that the case lacked evidence.  The allegation is thus general and is also denied.

The ground of appeal does not specify which finding defied logic hence is unsustainable and it is denied any how. In the result, the Respondent prayed that the Arbitrator’s decision be upheld.

It is important to note that, the facts as set out above are basically common cause.  The major thrust of the arguments advanced by the parties is whether there is a proper appeal before this court and if so whether it can be concluded that the Arbitrator erred to the extent that his decision be set aside and that the Appellants’ prayer of reinstatement be granted.  This approach to the case is informed by the heads of argument filed in instant case by both parties which speak to the fact that the appeal is improperly before this court.  For completeness of record each of the three grounds will be addressed in turn below.

Grounds one and two

These two grounds speak to the fact that the Disciplinary Committee was improperly constituted as it was not composed of the people specified in Section 25 of the Z.O.U Act.  Further to that, it was the Appellants’ argument that Respondent’s dealing with the case in terms of the National Code instead of the Z.O.U Act meant that the disciplinary proceedings were irregular as they were done outside the Z.O.U Act which stipulates who should constitute a Disciplinary Committee in respect of misconduct leveled against an employee.

The Respondent in response to these two grounds raised two major arguments. Firstly it argued that the issue of which statute to use was not properly before the Arbitrator. It argued that the arbitrator should not have ruled on it as it was outside his jurisdiction.  It argued further that, if this court however finds that the issue was properly before the Arbitrator, it is clear that his finding that it was proper for the Appellants to have been charged in terms of the National Code was proper since the Z.O.U Act is inconsistent with the Labour Act in so far as it does not spell out the acts of misconduct and the process to be followed in disciplining an employee.  It also argued that, the arguments raised in these two grounds are clearly reviewable issues which should not have been taken to the Arbitrator but should have found their way straight to the Labour Court if any issues arose therefrom.

The powers which are exercisable by an Arbitrator are clearly set out in Section (98) (a) which sates that;

“In hearing and determining any dispute on Arbitrator shall have the same powers as of the Labour Court”

Further to that, Section 4 of the Arbitration Act Chapter 7:15 shows clearly that matters which are excluded from being arbitrated on do not include matters like the one which is the subject of this appeal.  Finally, a reading of the terms of reference of the instant case shows that the issue about which Act was applicable in the instant case was one of the issues which the parties had agreed to be arbitrated upon.  To that extent, it means that the Respondent acquiesced to the issue being determined by the Arbitrator. It therefore cannot be heard to raise that argument at this stage to challenge the Appellants’ appeal.

In any event, a reading of the arbitral award shows that, the issue of the arbitrator’s jurisdiction on this aspect was never raised by either party; hence it can not be brought up at this stage. To this extent, the argument raised by the Respondent on the aspect that the appeal is improperly before this court is therefore without merit.  The Respondent made reference to Section 89(6)of the Labour Act as estopping the Arbitrator from deciding on the issue of which Act was applicable.  However, for the reasons already advanced that argument is without merit. The court is therefore satisfied that, the appeal is properly before this court in respect of grounds one and two.

Turning now to the second leg of the argument, is it important to note that the Arbitrator pointed in his award that:

“Under normal circumstances, I am agreeable with Claimants submission that Respondent should have used the University Act to discipline let alone dismiss them.  This is however not the case in that the University Act has the following inconsistencies.

there is no outline of act of misconduct

the University Act does not articulate on disciplinary process and procedure

the instrument does not have a provision of penalties

no appeal structure is in place”.

The essence of the Arbitrator’s reasoning in the court’s mind is that he agreed that the Z.O.U Act which set out the Disciplinary Committee for Respondent was what should have been used in the normal course of things. This reasoning, as far as this court is concerned, is without fault.  It is important to note that, if one were to glean the mischief of the Z.OU Act, it is clear that it intended to discipline its staff in terms of the Committee set up under Section 25. It however fell short by not providing for the other specifics noted by the Arbitrator or at least coming up with an extra piece of law either in the form of a Code of Conduct or elaboration in the Act itself of how the disciplinary processes should have been effected.

To that extent, the court is not persuaded that the Respondent acted properly in then going on to use the National Code without also giving effect to the Z.O.U provisions which clearly spelt out who should have constituted the disciplinary body.  It is the court’s considered view that, even if the Respondent faced the practical difficulty of how it could charge the Appellants as it had no Code of Conduct which spelt out misconduct acts it should however for consistency with its enabling Act have seen to it that the Committee in question was constituted by personnel spelt out in the Z. O.U Act.

Failing to do so means that it caused the Appellants to be dismissed by an irregularly constituted disciplinary body.  The court is therefore satisfied that, grounds one and two of appeal being with merit should therefore stand as it is clear that the Appellants should have been dealt with under the Z.O.U Act as read with the National Code which set out the offences which the Appellants had committed.

Ground Three

As regards ground three, very little turns on it, since it is clear from the arbitral award that, the basis upon which the Arbitrator said that the employees had to prove that their passwords had been tampered with was because he had accepted the fact that it was common cause that the passwords were encrypted hence no one else other than their owners could access them.

To that extent, he decided that it was now up to the employees to show that someone else other than themselves had used the passwords.  In fact, the finding by the Arbitrator on this aspect was based on the facts presented before him which is not appealable  unless it can  be shown that his reasoning was grossly unreasonable see case of AG vs Howman 1988(2) ZLR 402 (SC).

It is trite law that, he who alleges must prove. To this extent, the duty to show how the passwords were tampered with was on Respondent. Once it showed that the passwords had been tampered with, the Appellants had to adduce evidence to show that they were not the ones who had tampered with the passwords and falsified the students’ results.

Ground four and five

These are almost to the same effect as ground three as they both relate to the sufficiency of the evidence leading to the conviction of the Appellants.  As has already been stated above, this is a factual point which is not appealable unless the findings of fact were grossly unreasonable.  In the instant case, it is however clear  that, apart from the mere say so that the arbitral decision defies logic and common nothing else was placed before this court for it to be able to measure the defiance of the logic or otherwise .

All that remained was a bald assertion which could not assist the court much.  Being that as it was, what is worth noting is that, in view of the conclusion on grounds one and two the case was fraught with a procedural technicality of the wrong composition of the Disciplinary Committee. The question which has to be answered is, what then should be the correct course of action?

The Appellants urged the court to set aside the arbitral award and confirm the order heir reinstatement.  The Respondent on the other hand, urged the court not to be swayed by the technicality since in its view, what is critical is, whether the offence was committed. Given the fact that the Respondent did not follow the Act in making sure that the Disciplinary Committee be set up as per the Z.O.U Act it is important to note that decision of the University to have disciplinary matters entrusted in the hands of persons styled therein like a retired judge etc could not have been accidental.

It can be gleaned that such was to make sure that when disciplinary issues are handled this is done by persons who are competent to do so in terms of their qualifications. To make any other substitute without good ground cannot be sanctioned by this court.

The court acknowledges the fact that Labour matters need not be decided on technicalities; See Dalny Mine vs Banda 1999 (1) ZLR 220 but this case has to be looked at together with the case of Air Zimbabwe vs Chiku Mnensa and Mavis Mwarwenye which states that, a guilty person, should only escape if he is innocent not on the basis of technical hitches.

Applying the principles of the above quoted cases to the facts of the instant case , it is clear that, on face value the encrypted passwords are what were used in the alteration of the examination marks and these passwords belong to the Appellants. This creates a strong case against the Appellants. However, because their guilt was determined by an improperly constituted disciplinary body, the justice of the case dictates that the matter be dealt with in a procedurally correct manner to cure the irregularity complained of.

In the result, the court is satisfied that there is this merit in the appeal and it should be allowed to the extent that the matter be remitted to the employer to deal with it, in a procedurally correct fashion.

IT IS ORDERD THAT

1. The appeal being with merit be and is hereby upheld.

2. The arbitral award is set aside and substituted by the following;

The matter is remitted to the Respondent so that it can be heard afresh by a disciplinary body which is properly constituted in terms of the Z.O.U Act.

The hearing has to be conducted and concluded within 30days  from the receipt of this judgment ,failing which the Appellants shall  be deemed to be reinstated with full pay and benefits from the date of  their suspension

c) Meanwhile the Appellants remain suspended until the Respondent has regularized the position in terms of this judgment.

d) 	Each party to bear its own costs.

L. KUDYA ----------

President- Labour Court

J. Mambara & Partners – Appellant’s Legal Practitioners

Dube, Manikai & Hwacha- Respondent’s Legal Practitioners