Legal Resources Foundation v David Mupfurutsa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/205/2013
HARARE, 10 MAY 2013
CASE NO. LC/H/25/2010
JUDGMENT NO.LC/H/205/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/205/2013

HARARE, 10 MAY 2013				CASE NO. LC/H/25/2010

In the matter between

LEGAL RESOURCES FOUNDATION		-		Appellant

And

DAVID MUPFURUTSA				-		Respondent

Before The Honourable Presidents - B.T. Chivizhe and L. Matanda-Moyo

For Appellant 	-	Mr R. Moyo (Legal Practitioner)

Gill, Gerrans and Godlonton

Respondent		-	In Person

CHIVIZHE, B.T.:

The appeal was noted against an arbitral award handed down by the Honourable C. Mucheche dated 23rd November, 2009

The background facts to the matter are as follows;

The Respondent was employed by the Appellant as its Legal Publishing Unit Manager.  On the 29th of October, 2008 he was suspended by Appellant on a variety of allegations.  He appeared before a Disciplinary Committee on the 17th and 18th of that 2008 facing the following charges;

Any act of conduct or omission inconsistent with the fulfillment of the express or implied conditions of his contract;

Willful disobedience to a lawful order

Absence from work for a period of 5 days or more days without leave or reasonable cause in a year.

Habitual and substantial neglect of hi s duties.

The Disciplinary Committee found him guilty on all counts save for one i.e. wilful disobedience to a lawful order.  The Disciplinary Committee then imposed a penalty of dismissal after invoking Respondent’s previous final written warning.

Thereafter the Respondent appealed to the Chairperson of Appellant’s Trustees against the three charges.  In the appeal he alleged, inter alia, that the grounds of charges were not established by the Respondent, that there were glaring errors and omissions in the minutes of disciplinary hearing.  In her determination handed down on the 14th of December, 2008 the Chairperson dismissed the appeal.

Dissatisfied the Respondent then referred the matter for conciliation before the Labour Officer.  Upon failure to conciliate the matter was referred to compulsory arbitration.  The terms of reference were for the Arbitrator to determine the following issue;

“Whether the dismissal was fair or not and if not to determine the appropriate remedy.”

After hearing evidence and considering written submission filed on behalf of the parties, the Arbitrator handed down an award the operative part of which reads;

The dismissal of the claimant from employment by an improperly constituted disciplinary committee on 25 November, 2008 be and is hereby set aside with retrospective effect and the status quo ante shall obtain that the Claimant remains on suspension with full pay and benefits as per the Respondent’s letter of suspension dated 29 October, 2008.

The matter be and is hereby remitted back to the Respondent to conduct a de novo hearing under a properly constituted disciplinary committee as per Section 2 of Statutory Instrument 15 of 2006 within 14 working days of receipt of this award, failure of which the Respondent shall be permanently barred from instituting misconduct proceedings against the claimant on the same allegations.

The cost of arbitration shall be borne by both parties equally.

On the 14 December, 2009 the Appellant applied to the Arbitrator for clarification and interpretation of the arbitral award.  The Appellant was seeking clarification from the Arbitrator as to whether a Worker’s Committee Representative’s presence was mandatory in the composition of a Disciplinary Committee set up to hear a case involving an employee at managerial level.  The Appellant also sought for a stay of execution of the arbitral award pending the Arbitrator’s clarification of the point.  The Arbitrator dismissed the application on the basis that the application was improper and frivolous.

The Appellant then lodged an appeal with the Labour Court.  The Respondent having raised a point in limine that this appeal raises only questions of fact and not law that issue becomes the first issue for consideration.  The issue is important because in terms of Section 98 (10) of the Labour Act [Chapter 28:01] an appeal from an arbitral award to the Labour Court shall be on a question of law.

The appeal has been noted on six grounds which are as follows;

When he ruled that the disciplinary committee that dealt with this matter had been improperly constituted reference being heard Statutory Instrument 15 of 2006.

In deciding to overlook the merits of the matter on arriving at this decision to direct that the matter be heard de novo.  In so doing the Arbitrator lost the benefit of the overwhelming evidence against the Respondent which should have had a bearing on his decision- making.

In that when ordering the hearing de novo he expressly and clearly considered only the Respondent’s interest and not the question of justice between the parties.

In purporting to exercise powers beyond his jurisdiction when he ruled that the Appellant would be permanently barred in pursuing disciplinary proceedings against the Respondent if certain conditions were not met.

In failing to investigate and resolve the real dispute between the parties.

In failing to consider whether or not the alleged procedural irregularities had had any effect on the outcome of the matter before coming to this decision.

The term question of law has been considered over the years in many decisions.  The leading authority is the oft cited decision in Muzuva vs United Bottlers (Private) Limited 1994 (I) ZLR 217 (S) where at paragraph 220 D-F Gubbay CJ (as he then was stated) words to the following effect;

“The twin concepts, questions of law and questions of fact, were considered in depth by E.M. GROSSKOPF JA in Media Workers’ Association of south Africa and Ors v Press Corporation of South Africa Ltd (Perskor) 1992 (4) SA 791 (A).  approving the discussion of the topic in Salomnd on Jurisprudence 12 ed at 65-75, the learned JUDGE OF APPEAL pointed out at 795 D-G that the term ‘question of law’ is used in three distinct though related senses.  First, it means ‘a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter’.  Second, it means ‘a question as to what the law is.  Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true of law is on a certain matter’.  And third, any question which is within the province of the judge instead of the jury is called a question of law.  The division of judicial function arises in this country in a criminal trial presided over by a judge and assessors.

I respectfully adopt this classification, although the third sense is of no relevance to a matter such as this”.

The term ‘question of law’ has also received consideration in more recent times in the matter of SABLE CHEMICAL INDUSTRIES LIMITED VS DAVID PETER CASTERBROOK SC 18/10 where after placing reliance on the Muzuva decision referred to supra as well as HAMA VS NATIONAL RAILWAYS OF ZIMBABWE 1996 (I) ZLR 664 (S) Garwe J.A. concluded that all the grounds of appeal as filed before the Supreme court in that matter were based on questions of fact not law.

We revert to the grounds of appeal as noted by the Appellant.  Although the Appellant has raised six grounds some of the grounds are repetitive of the same issue.

Appellant in the first ground of appeal is challenging the finding by the Arbitrator that the disciplinary committee set up was improperly constituted reference being made to Statutory Instrument 15 of 2006.

The record shows that the Arbitrator to reach the conclusion considered the following facts.  That the Disciplinary Committee had been composed of Mrs Rose Nhamo - Disciplinary Committee Chairperson, Mrs Nokuthula Mahaka – Disciplinary Committee member, Mrs Karukai Ratsuka – Disciplinary Committee member, Mr Chris Makufa – Complainant, Mr David Mupfurutsa – the Respondent and Mrs Marcyline Shoko – Minuting.  The Arbitrator examined the definition of ‘Disciplinary Committee’ in Section 2 of Statutory Instrument 15 of 2006 that it means “a committee set up at a workplace/establishment composed of employer/employee representatives to preside and decide over disciplinary cases and or worker grievances”.  The Arbitrator concluded based on that definition, the Disciplinary Committee being made up of Management Representatives only was improperly constituted.  Consequently the Arbitrator set aside Respondent’s dismissal.

There is no doubt that the finding by the Arbitrator that the Disciplinary Committee was not properly constituted is a matter of fact and not law.  This position was also confirmed in SABLE CHEMICAL INDUSTRIES LIMITED VS DAVID PETER EASTERBROOK referred to supra.  The first ground must consequently fail.

The second ground of appeal is that the Arbitrator by overlooking the merits of the matter lost the opportunity to consider the overwhelming evidence against the Respondent.  The Arbitrator came to conclusion that the composition of disciplinary committee was not as provided for under the Code.  That procedural irregularity was fatal and vitiated those proceedings before the Disciplinary Committee.  The Arbitrator then following upon the principle laid down in Dalny Mine vs Banda 1999 (I) ZLR 220 (S) that an appeal authority can in those circumstances elect to either;

Proceed to determine the matter on the merits itself provided all the evidence is before him or

Remit the matter to the disciplinary authority chose to exercise the latter option.

Based on the facts and evidence that was before him the Arbitrator felt that the matter would be best remitted back to the Appellant to cure the irregularities in a re- hearing.  That finding being based on the factual evidence before him is a matter of fact and not law.  The second ground of appeal must also consequently fail.

In Ground number three the Appellant alleged that the Arbitrator failed to consider the broad effect of his decision to order a hearing de novo.  The Arbitrator had only considered the Respondent’s interests and not the Appellant’s interests.  He consequently failed to consider that the order would have adverse effect where the Appellant would have to reinstate the Respondent where clearly based on the overwhelming evidence in the record Respondent should be dismissed from employment.  The decision also meant that the matter would have to go through another lengthy process of disciplinary hearing, appeal, conciliation and eventually arbitration.  That process would be costly in terms of time and resources.  As discussed under ground number two the Arbitrator’s decision was clearly based on the factual evidence before him.  He came to the decision that the matter would best be remitted to the Appellant.  It cannot be gain said that by reaching this conclusion he did not consider the harm Appellant would suffer as a result of this decision.  There is no question of law that arises from the ground.

In Ground number four Appellant alleges that the Arbitrator erred in law when he sought to exercise powers that were beyond his jurisdiction.  The Arbitrator in his award set the condition that the Appellant should conduct a de novo hearing under a properly constituted Disciplinary Committee within 14 days of receipt of the award.  Failure to do that Appellant was to be permanently barred from instituting misconduct proceedings against the Respondent on the same allegations.  This ground will be dealt with in detail below.

In ground number five Appellant alleges that the Arbitrator failed to resolve the real dispute which was whether or not the Respondent had committed the various offences alleged by the Appellant and whether sufficient evidence had been availed to support those allegations.  This ground is similar to ground number two.  The Arbitrator by electing to remit the matter for curing of the procedural irregularity instead of hearing the matter on the merits had considered the factual evidence before him.  He opted to remit rather than delve into the merits as at that stage.  There is no question of law that arises from this ground.

Finally in the last ground the Appellant challenged the Arbitrator on the basis that he misdirected himself in that having found there were procedural irregularities in the disciplinary proceedings he should have gone further and assessed whether or not the procedural irregularities had played any role in the outcome of the matter.  This ground just as in the other four grounds discussed supra does not raise any question of law.

In the circumstances it is the finding of the court that only ground number 4 raises an issue of law.  The Arbitrator clearly exceeded his powers in imposing the permanent bar in the event that Appellant failed to complete the disciplinary proceedings within the stipulated time.  Statutory Instrument 15 of 2006 under which the Respondent had been tried provides for a right of appeal.  Section 101 (b) of the Labour Act [Chapter 28:01] also provides for a right of referral to a labour office in the event of delays in disciplinary proceedings.  Paragraph 2 of the arbitral award clearly ought to be set aside and substituted.

In conclusion it is court’s finding the arbitral award subject to any alteration in paragraph 1 should be upheld.  It is the court’s view that considering the time the matter has taken the Respondent should however ensure that disciplinary proceedings are completed within 30days of the date of the order of this court.  The Arbitrator had in his award directed that the Respondent remain on suspension with full pay and benefits as per the suspension letter.  The justice of the matter demands that the suspension be without pay and benefits pending the disciplinary hearing.

Wherefore it is ordered that,

The appeal is allowed in respect of ground of appeal number 4.

Paragraph 2 of the Arbitral award is consequently set aside.

The rest of the grounds of appeal are hereby dismissed.

The Arbitrator’s award is amended to read as follows;

The dismissal of the Claimant from employment by an improperly constituted disciplinary committee on 25 November, 2008 be and is hereby set aside.

The matter be and is remitted back to the Respondent to conduct a de novo hearing under a properly constituted disciplinary committee as per Section 2 of Statutory Instrument 15 of 2006 within 30 days of the date of the order of this court.

Pending the hearing in paragraph (b) Respondent shall be deemed to be on suspension without pay and benefits.

B.T. CHIVIZHE		………………………………………………………………………………...

President

L. MATANDA-MOYO	…………………………………………………………………………………

President