Methodist Church in Zimbabwe v Jabulani Nyathi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/272/2016
HARARE, 14 MARCH 2016
CASE NO. LC/H/904/15
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/272/2016

HARARE, 14 MARCH 2016 			     	 CASE NO. LC/H/904/15

AND 6 MAY 2016

In the matter between:-

METHODIST CHURCH IN ZIMBABWE			Appellant

And

JABULANI NYATHI						Respondent

Before Honourable L.M. Murasi, Judge

For Appellant		Mr B. Ngwenya  (Legal Practitioner)

Respondent		In person

MURASI J:

Respondent was employed by appellant.  Following allegations of misconduct, respondent was hauled before a disciplinary committee which found him guilty and ordered his transfer and reduction in rank in that he was to go to a non-school institution.  The matter ended up in arbitration.  The first arbitral award was in favour of appellant.  Respondent appealed to this Court and the parties appeared before Justice Musariri.  At that hearing the Learned Judge made an order for the matter to be remitted to the same arbitrator.  Whilst appearing before the arbitrator the parties were not agreed on the terms of reference to be used during the hearing.  Appellant made an application for directions before Justice Musariri but withdrew the application during the course of the proceedings.  The matter went before the arbitrator who found in favour of the respondent.  Appellant is dissatisfied with the decision of the arbitrator and has appealed to this Court.

Appellant’s grounds of appeal can be summarised as follows:

That the arbitrator erred and misdirected himself at law by dealing with issues that were not referred to him for determination.

The arbitrator grossly misdirected himself in law in interfering with appellant’s exercise of discretion in dismissing the respondent without showing that the exercise of discretion was either unreasonable or irrational.

That the arbitrator’s findings were inconsistent with the evidence presented before him.

That the arbitrator erred at law in ordering reinstatement and interfering with the employer’s discretion in dismissing the respondent.

Mr Ngwenya for the appellant stated that he abided by the documents filed of record.  He submitted that the arbitrator should have been guided by the order of the Labour Court whether there were any “proofs” tendered by the appellant to warrant a conviction and dismissal of the respondent.  It was argued that the arbitrator was bound by these terms of reference and by going out of these terms of reference, the arbitrator had erred.  It was further submitted that the arbitrator went beyond his mandate to seek evidence that was not before him.  It was argued that the evidence was already before him and he was being called upon to determine whether the decision of the appellant to dismiss the respondent was either rational or irrational.

The respondent began by giving a historical perspective in that the disciplinary committee had not recommended his dismissal but a transfer to a non-school institution.  Respondent went further to state that when appellant had applied to the Court for directions, it withdrew the application during the proceedings stating that it now understood the terms of reference.  It was further submitted that appellant was now coming up with their own terms of reference.  It was further argued that the decision of the arbitrator in light of the evidence placed before him, was proper.

It is imperative that the order of Justice Musariri be understood in proper context.  The Learned Judge makes the following observation on page 1 of the judgment:

“However at the hearing the matter took a dramatic turn. Both parties agreed that the disciplinary proceedings by respondent (appellant) against appellant (Respondent) used wrong procedures.  Respondent (appellant) no longer opposed the appeal.”

Further at page 2:

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

Still further on page 2:

“Fortified by this lofty authority, I shall remit the matter for re-hearing.”

Firstly, there was a concession by the appellant before Justice Musariri that its own hearing had been fraught with irregularities.  Secondly, appellant, before Musariri J agreed that it no longer opposed the appeal by the respondent in respect of the arbitral award.  The Learned Judge obviously acting with caution, stated that he could not set aside the disciplinary committee’s hearing because the record was not before him.  In short, he was stating that, appellant having made the concession about the flaws in its own proceedings, the matter should have been set aside.  The appellant conceded that it no longer opposed the appeal by the respondent.  In light of the two concessions, made by the appellant, were there any proceedings against the respondent to talk about? The Court thereafter stated that it was going to remit the matter for a “re-hearing”.  Re-hear is defined in the Oxford Dictionary as:

“to hear or consider again a case in court.”

The arbitrator makes the following finding:

“The order of the court in my interpretation caused for the re-hearing of the matter.  Re-hearing in my view constituted a full trial whereby the respondent was to labour itself in laying/stating the charges against the claimant in a manner to allow the other party to mount its defence. “

I do not find fault in the above finding by the arbitrator.  Appellant had clearly stated it did not support its own proceedings by the disciplinary committee.  Appellant had also stated before the Court that it did not oppose the appeal by the respondent (appellant then) against the arbitral award.  The arbitral award was set aside.  This means that there were no proceedings pending apart from the remittal for a re-hearing.  There is therefore no substance in the first ground of appeal and it ought to be dismissed.

I will now turn to the evidence adduced before the arbitrator.  Appellant simply produced documents which it stated were forgeries and a statement from the Bursar who made allegations that respondent was an accomplice to the transactions.  The Bursar was not called to testify.  The documents were disputed by the respondent.  The arbitrator had this to say:

“In the absence of the witness the claimant simply argued that it remains the witness’ written statement which he disputed against his contention.  The claimant in his submissions stated that Annexure “D” is not relevant in the circumstances; the claimant argued that the witness in his own confession clearly admitted responsibility for the misappropriated funds and even went to ask for forgiveness and ask for a payment plan.”

Further on the same page:

“It is my finding that the respondent party was quite mean with its submissions and in the result it became difficult for me to be able to tell whether the claimant was actually a culprit/accomplice in the entire transaction or it was the Bursar ….

It is my considered view that the respondent should have called in its key witness, Mr Dungiro, the bursar to give evidence and possibly bolster its (respondent) case …  I therefore find the level of proof of misconduct tendered by respondent to be less convincing to warrant the termination of the claimant’s contract.”

The clear picture that is being drawn by the arbitrator is that the appellant had been unable to prove on a balance of probabilities that respondent was indeed guilty of the misconduct alleged.  It is trite that onus of proof lies with the one who alleges.  In Astra Industries Limited vs Peter Chamburuka S 27/12 it was held as follows:

“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.”

I am inclined to state that appellant shot itself in the foot, so to speak, by simply relying on documents which were clearly disputed without calling further evidence to bolster such documentary evidence.  As such, appellant’s third ground of appeal must fail.

I am of the view that the appellant’s second ground of appeal is improperly made.  This will be allowing the appellant to “blow and cold”.  In the proceedings before Justice Musariri appellant made a concession that it did not support the decision of its disciplinary committee because of procedural irregularities.  The second ground of appeal appears to be appellant’s chance of “hanging-on” to that decision which it does not support.

Finally, the arbitrator makes an order for reinstatement or payment of damages in lieu of such reinstatement.  It is trite that the remedy for unlawful dismissal is reinstatement and if such reinstatement is no longer possible, the payment of appropriate damages.  Was the arbitrator in error?  I do not think so.  Lord MacMillian had this to say in Watt (or Thomas) vs Thomas [1947] I All ER 582 (HC) at 590 B-D:

“The appellate court had before it only printed record of evidence.  Were that the whole evidence it might be said that the appellate judges were entitled and qualified to reach their own conclusion upon the case, it is only part of the evidence.  What is lacking is evidence of the demeanour of the witnesses, their condour or their partisanship and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial.  This assistance the trial judge possesses in reaching his conclusion, but it is not available to the appellate court.  So far as the case stands on paper, it is not infrequently happens that a decision either way may seem equally open.  When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed advantages not available to the appellate court, becomes of paramount importance and ought not to be disturbed.”

Put differently, an appellate court is not likely to interfer with the decision of a lower court or tribunal unless there is evidence of a gross misdirection on the part of that lower court or tribunal.  It is my view that the decision of the arbitrator, on the evidence on record, is unassailable.

In conclusion the court is of the view that the appeal is devoid of merit and should be dismissed.  The Court makes the following order:

The appeal, being without merit, is dismissed.

The arbitral award of Honourable Chitsa be and is hereby upheld.

Each party to bear its own costs.

Chinawa Law Chambers, appellant’s legal practitioners