Kevin Nyamaropa v Foodworld Group

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/858/14
HELD AT HARARE ON 8TH OCTOBER, 2014
CASE NO. LC/H/258/14
AND 19TH DECEMBER, 2014
JUDGMENT NO. LC/H/858/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/858/14

HELD AT HARARE ON 8TH OCTOBER, 2014    CASE NO. LC/H/258/14

AND 19TH DECEMBER, 2014

In the matter between:-

KEVIN NYAMAROPA							Appellant

And

FOODWORLD GROUP							Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: 	Mr. K. Masasire (Legal Practitioner)

For Respondent: 	Ms. M.R. Zvimba (Legal Practitioner)

MHURI J.:

This is an appeal against an arbitral award wherein Appellant is arguing that the Arbitrator erred when he made a decision that Appellant was fairly dismissed which decision was not backed by any reason or explanation.

It was Appellant’s submission that before the Arbitrator he was very clear that he was summarily dismissed as Respondent did not conduct any hearing.  He submitted that the Arbitrator even conceded that Appellant did not attend the hearing because he was involved in an accident but however contradicted himself when he made the finding that he was fairly dismissed.

It was also Appellant’s argument that the Arbitrator did not give reasons for his award either.  He submitted that this failure to give reasons rendered the award grossly unreasonable and irrational warranting this court’s interference.  Reliance was made on the case of-

CITY OF HARARE V MATTHEW CHOKUFA LC/H/266/2012

Respondent argued that Appellant was invited for a hearing which he duly attended.  On the 3rd October, 2013 he was served with a determination letter which he refused to sign for.  Respondent produced minutes indicating that a hearing was held on the 1st of October, 2013.  These minutes could not be submitted to the Arbitrator as Appellant challenged them on the basis that they were doctored.

The undisputed facts of this matter are that

Appellant was a manager with Respondent and was based at the Eastlea branch.

On the 18th September, 2013 Appellant instructed his subordinates to load 8 x 20 litres of used cooking oil for delivery to the other branch at Mbuya Nehanda Street.

Before loading, Appellant as the manager did not double check the load to ensure that his instructions had been complied with.

Upon delivery at Mbuya Nehanda Street Branch 1 x 20 litre container was found to be unused oil.

For the failure to double check, as is required of a manager, Appellant was suspended and charged in terms of the Section 4(a) of the National Code Statutory Instrument 15 of 2006 for an act or omission inconsistent with the fulfillment of the express or implied conditions of his contract of employment.

The letter of suspension dated 20th September, 2013 invited him to attend a disciplinary hearing on the 27th September, 2013 at 1500 hrs.

Appellant did not dispute that he received the above letter and neither did he dispute the signature endorsed thereon as his.

Appellant was dismissed from Respondent’s employ by a letter dated 3rd October, 2013.

When he was served with this letter, Appellant refused to acknowledge it and refused to sign for it.

The term of reference which the Arbitrator was required to consider was whether or not Appellant was unfairly dismissed and the appropriate remedy thereof.

In order for him to determine this issue the Arbitrator was required to look at the procedural fairness and substantive issues that led to the dismissal.

As regards the substantive issue, this was straight forward as it was not in dispute that Appellant failed as a manager to double check the load before dispatch and this led to one 20 litre container of unused oil being dispatched as well.

As regards the procedural issue, the Arbitrator was required to look at whether the procedures leading to the dismissal were followed.  Indeed Appellant was served with a suspension letter.  The letter stipulated the charge and allegation.  The letter stated the date, time and place of hearing to which Appellant was invited namely 27th September, 2013 at 15oo hrs at Human Resources Office, Angwa Street Branch.

It is from this point on that a dispute of fact arose, which dispute the Arbitrator was enjoined to determine.  The Arbitrator’s minutes do not show that the dispute was determined.

Was any hearing held?

It is clear from the letter of the 3rd October, 2013 that no hearing was held on the 27th September, 2013.  The letter indicates that the hearing was held on the 1st October, 2013.  What happened on the 27th September, 2013?  The record shows that the matter was postponed and according to Appellant he had been involved in an accident.  This could reasonably be true as alluded to, the date of “hearing” is indicated as 1st October.

What happened on the 1st of October?  Respondent says a hearing was held which Appellant attended and participated in.  Respondent tried to produce before the Arbitrator minutes to that effect.  These minutes were challenged by Appellant as having been doctored since Respondent failed to produce them before the conciliator.  The arbitrator consequently did not admit them.

Appellant says there was no hearing held at all.  On the 3rd of October he was served with a letter of termination which he refused to accept or sign for, challenging how he could be dismissed when there was no hearing held.

Before the Arbitrator Appellant persisted with his challenge which he had referred for conciliation that he was summarily dismissed without a hearing.

Faced with this dispute, i.e. whether a hearing was held or not, the Arbitrator ought to have heard evidence from witnesses (the hearing officer, minute taker, security manager and any other witness) and then make a ruling on that issue. This, he did not do, and left the dispute undetermined.

As a result, I will quash the Arbitrator’s proceedings and remit the matter to him for a re-hearing of the terms of reference as referred by the conciliator and for him to determine whether or not a hearing was held before Appellant’s contract of employment was terminated.  The Arbitrator is also required to give reasons for his findings.

Accordingly it is ordered as follows:-

That the arbitration proceedings be and are hereby set aside.

The matter is remitted to the same Arbitrator for a re-hearing.  The parties are to liaise with the Arbitrator for a mutually convenient date of hearing and

Each party is to bear its own costs.

Appellant’s status, ante arbitration stands (i.e. he remains dismissed)

Musoni Law Chambers–Appellant’s Legal Practitioners

Mugiya and Macharaga Law Chambers–Respondent’s Legal Practitioners