Justice Chimonyo v UBM P and L (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/507/16
HELD AT HARARE ON 17TH MAY, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/507/16

HELD AT HARARE ON 17TH MAY, 2016 	    CASE NO. LC/H/437/15

AND 9TH SEPTEMBER, 2016

In the matter between:-

JUSTICE CHIMONYO							    Appellant

And

UBM P AND L (PRIVATE) LIMITED					    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr T. Marume (Legal Practitioner)

Respondent	:	Ms N.M. Masunda (Legal Practitioner)

MHURI J.

This is an appeal against an arbitral award on four grounds which can be summarised as follows:

That,

The arbitrator grossly erred in concluding that the Appellant’s dismissal was fair without demonstrating how.

The arbitrator grossly misdirected himself in failing to find that

Appellant was not in wilful default on the day of the hearing

The dismissal was in breach of the audi alteram partem rule, as the disciplinary hearing was conducted in Appellant’s absentia.

The Arbitrator grossly misdirected himself by failing to find Appellant not guilty of the offence of conduct inconsistent with the fulfilment of the express or implied terms of contract.

The Arbitrator erred in upholding the dismissal on a technicality without affording Appellant the right to be heard on the merits.

Appellant’s prayer was to have the dismissal set aside on the basis that it was unfair and that he be reinstated without loss of salary and benefits or alternatively be paid damages.

The factual background of this case which is generally common cause and aptly captured in Appellant’s pleadings is that:

Appellant was in Respondent’s employ as a Trust Plant Manager at the Graniteside Branch.

By a letter dated the 16th of May, 2014 he was suspended pending investigations into gross acts of misconduct.

By a letter dated the 21st May 2014, Appellant was advised of a disciplinary hearing on the 28th May, 2014 at 4 pm.  The charge was:

“any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract”

In terms of the National Employment Code of Conduct Statutory Instrument 15 of 2006.

The said letter stated,

“Please note that you may, if you so wish, bring a managerial employee or any other representative permitted by law to represent you at the hearing……………”

Appellant enlisted the services of Mr. Patrick Chingoka of High Post Consultants (Private) Limited to represent him.

By a letter dated the 30th May, 2014 Appellant’s representative High Post Consultants (Private) Limited sought a postponement of the hearing date from the 5th June, 2014 to the 10th June, 2014.

By another letter dated the 4th June, 2014 Appellant’s representative sought another postponement of the hearing from the 10th June, 2014 to the 18th June, 2014, the reason being that Mr. P. Chingoka had to travel abroad to attend to his sick wife.

In response, by a letter dated the 9th June, 2014 addressed to Appellant, Respondent, through its legal practitioners Scanlen and Holderness advised Appellant of its unwillingness to postpone the matter further than the 13th June, 2014.

Through the same letter, Appellant was advised to attend the hearing on the 13th at 2 pm and to look for alternative representation.

In the same letter, Appellant was warned that if he failed to attend the hearing, it will nonetheless proceed in his absence.

By a letter dated the 10th June 2014, Appellant’s representative responded to Respondent’s Legal Practitioners letter, advising that Appellant will not attend the hearing of the 13th June in the absence of Mr. P. Chingoka.

Again, by a letter dated 13th June, 2014, Appellant’s representative reiterated their position that Appellant will not attend the hearing of the 13th due to the fact that Mr. P. Chingoka would not be available.

In the same letter it was stated that Appellant will institute available remedies if the hearing proceeded on the 13th.

On the 13th of June, the Respondent proceeded with the disciplinary hearing in the absence of Appellant and his representative.

Appellant was found guilty of the act of misconduct and was dismissed from Respondent’s employ.

The matter eventually was referred for arbitration which proceedings are the subject of this appeal.

The main term of reference which the Arbitrator was to determine, was whether or not Appellant was unfairly dismissed.  In coming up with the decision that the dismissal was not unfair, the Arbitrator considered the parties detailed submissions (captured in the minutes).  He was persuaded by the Respondent’s submissions and ruled in its favour.

Appellant was of the view that the Arbitrator merely regurgitated the parties’ submission and without properly analysing them and giving reasons ruled that the dismissal was fair.  If Appellant wanted detailed reasons from the Arbitrator, it was within his right to request for the same from the Arbitrator.  His legal practitioner submitted that he did not exercise this right.

I must hasten to say that Appellant was the author of his own misfortunes.  He can therefore not be heard to blame the Arbitrator for his ruling.

The proceedings in casu, were held in terms of the national code of conduct.  (Statutory Instrument 15 of 2006) which stipulate the parties rights and obligations.  Section 6 of the Regulations provides the Disciplinary procedure to be followed where the employer has good cause to believe that an employee has committed an act of misconduct.

In particular it provides for the suspension of the employee, the right of the employee to notice of the hearing and charge.  It gives an employee the right to appear in person at the hearing and be represented by either a fellow employee, worker’s committee member, trade union official or a legal practitioner.

The said section further gives the employee the right to call witnesses, to be informed of the reasons for the decision and to address in mitigation before the imposition of a penalty.

The record shows that Respondent complied with the requirements of Section 6.

As alluded to, Respondent suspended Appellant from its employ pending investigations into the alleged acts of misconduct.  Appellant was served with a notification to attend a hearing on the 28th May, 2014.  By consent of both parties, the date of hearing was moved to the 5th June, 2014 because Appellant had raised the point that the notice was not adequate.  In the said letter, Appellant was advised to choose his representative in compliance with the law.  It is clear that Appellant did not choose a representative as required in terms of Section 6 but chose a representative from outside the ambit of Section 6 – a labour consultant – Mr. P. Chingoka.  Even after several requests for postponement of the hearing, Respondent wrote directly to Appellant advising him to attend the hearing on the 13th June, 2014.  Appellant did not take heed but chose to follow his representative’s (not legal practitioner) advice not to attend.  By so doing he took a calculated risk to his detriment.  This was wilful default in my view.

See:	FORESTRY COMMISSION vs MOYO 1997 (1) ZLR 254 (S)

Having followed the procedure stated in Section 6, I am not persuaded by Appellant’s argument that the audi alteram partem rule was flouted by Respondent and that the Arbitrator erred in not finding that the rule was flouted.   See also the case of

MUNYUKI vs CITY OF GWERU 1998 (1) ZLR 182

at page 186 wherein Gubbay CJ had this to say,

“… an employee who is to be disciplined has to attend and partake in those proceedings.  If he refuses to do so he could hardly allege that the proceedings and the outcome of the proceedings were unfair or amounted to an unfair labour practice …”

In his 3rd ground of appeal, Appellant argues that the Arbitrator erred by not finding appellant not guilty of the act of misconduct.  It is common cause that the disciplinary proceedings were conducted in Appellant’s absence, Appellant having wilfully defaulted from attending.  Consequently the employer’s evidence went unchallenged up to the imposition of the penalty.

It is clear from the record that the term of reference for consideration by the Arbitrator was whether or not the dismissal was fair.  It is this term that the Arbitrator considered and came to the conclusion, correctly in my view that the dismissal was not unfair.

I agree with Respondent’s submission that:

unfair dismissal relates to the procedure adopted that led to the

dismissal.

In casu, the procedure as provided under Section 6 of the Code,

unlawful dismissal relates to substantive fairness, that is the merits of the matter.

The Arbitrator was not enjoined to determine the unlawfulness of the dismissal – the merits but the unfairness of the dismissal – the procedure.

If the procedure had not been followed by Respondent, Appellant’s remedy lay in the proceedings being set aside and remitted to Respondent for a hearing de novo  in a procedurally correct manner and not reinstatement without loss of salary and benefits as prayed for by Appellant.

I find that this appeal is devoid of merit, consequently will dismiss it.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

MATSIKIDZE AND MUCHECHE – Appellant’s legal practitioners

SCANLEN & HOLDERNESS – Respondent’s legal practitioners