Jabulani Nyathi v Methodist Church in Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/69/13
HELD AT HARARE 28TH FEBRUARY 2013
CASE NO
JUDGMENT NO LC/H/69/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/69/13

HELD AT HARARE 28TH FEBRUARY 2013		CASE NO LC/H/261/12

JABULANI NYATHI						Appellant

METHODIST CHURCH 					Respondent

IN ZIMBABWE

Before The Honourable G Musariri, President

For Appellant		Mr A Mudheredhe, Attorney

For Respondent		Mr M Chijara, Attorney

MUSARIRI, G:

On 29th March 2012 the Honourable E.F. Chitsa made an arbitration award.  In

terms thereof he upheld Respondent’s termination of Appellant’s employment. Appellant then appealed to this Court.  Respondent opposed the appeal.  However at the hearing the matter took a dramatic turn.  Both parties agreed that the disciplinary proceedings by Respondent against Appellant used wrong procedures.  Respondent no longer opposed the appeal. However it had issues with the relief Appellant sought.  At the conclusion of his oral argument,  Appellant’s attorney prayed that the arbitration award be set aside.  In addition he prayed for the reinstatement of Appellant by Respondent.

Respondent’s attorney conceded that the arbitration award should be set aside.  However he insisted that the matter be remitted to Respondent for a re-hearing.

Respondent relied on the case of Air Zimbabwe v Mnensa SC 89/04 at p 5 of the cyclostyled judgment where the Honourable G Chidyausiku CJ stated that,

“I agree with this approach.  A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee.  He should escape such consequences because he is innocent.  There was no enquiry into the merits of respondent’s conduct.  The disciplinary proceedings were flawed.   New disciplinary proceedings should have been instituted as was ordered by the General Manager of the appellant.”

Fortified by this lofty authority, I shall remit the matter for a re-hearing.  Appellant urged me to remit to Respondent rather than the arbitrator.  Respondent was non-committal.  The fact is that disciplinary proceedings have been conducted which led to the penalty of dismissal.  I cannot set aside the proceedings because they were not before this Court by way of review.  What was before the Court was an appeal against the arbitration award.   In the circumstances, the logical outcome of the appeal is the setting aside of the award coupled with remittal of the matter to the arbitrator for a determination whether the Appellant’s dismissal was warranted on the proofs of misconduct tendered by Respondent.

Wherefore it is ordered that,

The appeal is hereby allowed;

The arbitration award made by the Honourable E.F. Chitsa dated 29th March 2012 is set aside;

The matter is remitted to the arbitrator for determination whether

Appellant’s dismissal was warranted by the proofs of misconduct tendered by Respondent.

G. MUSARIRI

PRESIDENT