Kwayedza High School Development Association v Milicent Muziringa & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/302/16
HARARE, 24 MARCH 2016
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IN THE LABOUR COURT OF ZIMBABWE	                     JUDGMENT NO. LC/H/302/16

HARARE, 24 MARCH 2016				              CASE NO. LC/H/1077/15

AND 13 MAY 2016

In the matter between:-

KWAYEDZA HIGH SCHOOL					Applicant

DEVELOPMENT ASSOCIATION

And

MILICENT MUZIRINGA & ANOR				Respondents

Before The Honourable E. Muchawa, Judge

For Applicant	Shame Mangoma (ZSDA/C)

For Respondents	Masomera (Trade Unionist)

MUCHAWA, J:

This judgment relates to an application for review and an appeal.  These were heard as consolidated.  In my judgment, I will start off with the common background facts, and then deal with the application for review and finally the appeal.

Background Facts

The first respondent was employed as a tuck shop keeper by the appellant in 2007.  At the relevant time she was then employed in the capacity of an assistant librarian when she was suspended on the 13th of January 2014 on allegations of insubordination and inciting other fellow employees.  Disciplinary proceedings were conducted in terms of Statutory Instrument 15 of 2006 on the 31st January 2014.  At the hearing the first respondent was represented by Mr Ndota, a trade unionist and also appeared in person.

The disciplinary hearing outcome was handed down on or about the 3rd of February 2014.  The disciplinary committee found the first respondent guilty and dismissed her from employment.  On the 12th of February 2014 the appellant wrote a letter to the first respondent which she signed for in acknowledgement of receipt.  It states as follows;

“DISCIPLINARY HEARING: TERMINAL BENEFITS

The above subject refers.

Following a disciplinary hearing outcome dated 3 February 2014 involving your case as Kwayedza High School Employee, please be advised that your terminal benefits totalling $689.15 have been transferred into your Kingdom Bank account number 3747507 Highglen Branch.

Please acknowledge the receipt of this letter by returning a signed copy of this letter to the undersigned.”

Meanwhile, on the 4th of February 2014, the first respondent had caused her trade union representatives to write to the appellant complaining about what they termed “an unreasonable delay in determining the allegation” against first respondent.  It being alleged that they had exceeded 14 days from the date of suspension without communicating in writing the outcome of the matter.

It appears that on the 30th of July 2014, the first respondent referred a complaint of an alleged unfair dismissal to the National Employment Council Zimbabwe Schools Development Associations.  When the matter remained unresolved on the 11th of September 2014, it was referred to arbitration.  The terms of reference for arbitration were;

Whether or not the employee was unfairly dismissed from employment.

Whether or not the applicant appealed to disciplinary committee within 7 days of receipt of the decision.

The appellant contended before the arbitrator that the first respondent had not appealed to the Appeals Committee after receipt of the determination of the 3rd of February 2014 and had therefore not exhausted local remedies so the matter was improperly before the arbitrator.

The arbitrator however dismissed the appellant’s point in limine and ordered reinstatement of the first respondent or alternatively, damages in lieu of reinstatement.  This was on the basis that she found that there no record submitted before her to prove that a hearing was conducted and a determination given.

Aggrieved, the appellant noted both an application for review and an appeal.  I deal with each of these in turn below.

Application for review

In the application for review these are the summarized grounds.

The Learned Arbitrator grossly erred and misdirected herself on the facts and the law … by ignoring points in limine raised by the applicant being that first respondent had not exhausted local remedies.

The Learned Arbitrator grossly erred and misdirected herself in terms of the law by ignoring the record of the disciplinary proceedings conducted by the applicant on the 31st January 2014.

In terms of section 7 of the Statutory Investment (sic) No 73 of 2012, Section 7 (4), where a party to a dispute/matter or the conciliator request the arbitrator to recuse himself or herself, he or she shall do so. Going ahead to decide on a matter where jurisdiction is in issue the elements of bias and malice openly surface.

The Learned Arbitrator grossly misdirected herself by ruling that the applicant failed to show procedural fairness.

The arbitral award is grossly unreasonable such that no reasonable person who applies his mind to the facts and law would come to such a conclusion unless he was influenced by bias and malice and corruption.

The first respondent argued that grounds 1 to 4 are not proper grounds of review and that only ground 5 was a proper ground of review.

Where the reason for wanting a judgment set aside is that the court came to the wrong conclusion on the facts or law; the appropriate procedure is to appeal whereas where the real grievance is on the method of the trial, the procedure is to bring the case on review.  (Herbstein and Van Winsen, Civil Practice of the High Court of South Africa, 5th ed at p 1271).

In ground 1 of review the applicant is challenging the arbitrator’s findings of fact wherein she concluded that there had been no hearing and determination save for the letter of suspension.  This ground does not question the method of trial.

Ground 2 of review equally questions the factual conclusion that no disciplinary hearing had been concluded.

Ground 3 of review questions the arbitrator’s decision to decide a matter where jurisdiction was in issue.  This ground seems to question the method of trial.

Ground 4 of review challenges the conclusion on the law that there was no procedural fairness in the way the matter was handled.

I find therefore that grounds 1, 2 and 4 are not grounds of review and are therefore improperly before me I accordingly strike them off.

Grounds 3 and 5

The applicant alleges that it was wrong for the arbitrator to go ahead and decide on this matter where jurisdiction was in issue as elements of bias and malice openly surface. It is further argued that the award is grossly unreasonable such that no reasonable person who applies his mind to the facts and law would come to such a conclusion unless he was influenced by bias and malice and corruption.

The first respondent argues that there is no proof that the arbitrator had the disciplinary hearing minutes and determination placed before her and she chose to ignore them.

At the disciplinary hearing I adjourned the hearing for a few minutes after asking the first respondent to confirm whether or not disciplinary proceedings had been conducted and whether such evidence was placed before the arbitrator.

The applicant insisted that it had filed its heads of argument with annexures that included the disciplinary hearing minutes and determination plus the letter relating to terminal benefits which I have quoted above and that the letter of suspension was not before the arbitrator.

The respondent persisted that the determination and disciplinary hearing minutes had not been attached but confirmed the letter relating to terminal benefits had been attached.

I find that the applicant has not substantiated his allegations of bias, malice or corruption.  What I only have before me are differing versions as to whether the arbitrator had proof of the disciplinary hearing having occurred.

The appeal

In the appeal the appellant questions the arbitrator’s factual conclusion that there was no disciplinary process conducted yet it is alleged the decision of the disciplinary committee and the minutes of the disciplinary committee were before her.  Further the failure of the arbitrator to address preliminary issues raised that the first respondent had not sought condonation is also faulted.  The arbitrator is impugned for not addressing the terms of reference.  This sums the issues emerging from the ten grounds of appeal.

After the court, during the hearing, had pressed the first respondent, she acknowledged that indeed a disciplinary hearing was conducted and that she received the determination, though she could not recall the date.

She proceeded to acknowledge too that at the time of receiving the determination, she had not appealed in terms of the Code of Conduct but had filed a dispute in terms of section 93 of the Labour Act.

The terms of reference, particularly number 2, do not seem to put in issue whether or not a disciplinary hearing was conducted.  That term of reference implies that there was a decision of the disciplinary committee which should have been appealed against.  The issue was whether such appeal had been done and within the prescribed time frame.

The letter advising of terminal benefits clearly points to a disciplinary hearing having occurred.

In the light of the evidence before me, the admissions by the first respondent and the arbitral award, there seems to have been a clear misdirection in how this matter was handled by the arbitrator and the conclusions.  I find that there is a clear technical irregularity of vital, crucial evidence having been overlooked and the first respondent snatching a judgment, whilst well aware that it was not based on correct facts.

I proceeded as stated in Dalny Mine v Banda 1999 (1) ZLR 220 (SC) wherein it is stated that a matter should not be determined on the basis of technical irregularities in previous proceedings.  Such irregularities should not be ignored but should be put right.  I chose to hear the evidence myself so as to render the irregularities irrelevant.  I further proceeded in terms of Rule 12 of the Labour Court Rules in the admissibility of the evidence which was alleged to have been ignored by the arbitrator and admitted to have been available by the first respondent.

Accordingly the arbitral award is set aside in its entirety and it be and is hereby substituted as follows;

The preliminary point raised by the respondent is upheld.  This tribunal has no jurisdiction as the claimant did not exhaust local remedies.

The claim is dismissed.