Murawo Claudius v Metallon Gold Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO
LC/H/136/14
HELD AT HARARE 20TH FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/136/14

HELD AT HARARE 20TH FEBRUARY 2014		CASE NO LC/H/594/13

& 14TH MARCH 2014

In the matter between:-

MURAWO CLAUDIUS				Appellant

And

METALLON GOLD ZIMBABWE			Respondent

Before The Honourable E Muchawa, Judge

For Appellant		O Shava (Legal Practitioner)

For Respondent		T Tandi (Legal Practitioner)

MUCHAWA, J:

This is an appeal against an arbitral award.

Appellant was employed by Respondent as a Planned Maintenance Officer.  He was suspended on the 24 August 2012 for allegedly having contravened Section 4 (d) of Statutory Instrument 15 of 2006, that is for fraud or forgery.  The facts giving rise to the charge are common cause.  Appellant submitted a forged school fees invoice to the Respondent’s Accounts office for payment.  The original invoice from Hillcrest school reflected the sum of

US$3 355.00 whilst the forged invoice reflected US$3655.  As a result of the forgery, it is alleged that Appellant’s intention was to prejudice the Respondent of the sum of US$300.00.

On the 30 August 2012 a notification of hearing for a hearing set for the 4 September 2012 at 10.00 a.m. was sent out.  On the hearing date at 9.53 a.m., Appellant called Respondent seeking a postponement on account of a doctor’s appointment.  The hearing was postponed to 7 September 2012.  This did not take place as Appellant produced a doctor’s note which booked him off sick up to the 10 September 2012.  On the 11 September 2012, Appellant was notified that the hearing had been reset for 13 September 2012.  Appellant’s legal representative wrote to Respondent on the 12 September and proposed that the matter be moved from the proposed date of 13 September 2012 to any of the following dates: 19, 20 or 21 September 2012 citing his diary was fully booked on the initially proposed date.

Following the request for postponement, Respondent agreed to the

20 September 2012 as the date of hearing whilst pointing out that the hearing would however be exceeding the 14 day limit in terms of the relevant Code.

On the 19 September 2012 Appellant’s legal practitioner referred the matter to a Labour Officer alleging an unfair labour practice and refusal to furnish necessary documents and that the matter had not been finalised within the prescribed 14 days.

Meanwhile on the 20 September 2012 the hearing proceeded in Appellant’s absence.  He was found guilty and dismissed.  On appeal before the arbitrator his claim was dismissed.

The grounds of appeal before this court are;

The Honourable Arbitrator erred at law in failing to appreciate and make a finding that Respondent had no jurisdiction to entertain a matter which had been referred to the Ministry of Labour.

The Honourable Arbitrator erred at law, in finding that dismissal of Appellant was both procedurally and substantively fair, when in fact Respondent had unlawfully conducted the hearing in respect of the matter it no longer had jurisdiction over.

The Honourable Arbitrator erred at law in finding that Appellant’s dismissal was procedurally fair when in fact Respondent had refused to furnish Appellant with a charge sheet and all relevant documents necessary for his preparation of defence, thereby committing a procedural irregularity so serious to vitiate the proceedings.

In response, Respondent raised the point in limine that grounds of

appeal 2 and 3 are on factual issues and do not raise a point of law.  Further it is averred that Appellant himself caused the delays in the finalization of the matter through the postponements sought.  He had therefore waived his right to challenge the continuation beyond the 14 day period.  The arbitrator’s decision is said to be correct in finding that Appellant’s hearing was substantively and procedurally fair.

The parties agreed in their submissions before me that the deciding issue in this matter is ground 7 on jurisdiction.   I deal with this below.

Did Respondent Have Jurisdiction to Entertain this matter after referral to a Labour Officer?

Appellant’s argument is that once a matter is referred to the Ministry of Labour in terms of Section 101 (6) of the Labour Act [Chapter 28:01], then a party in Respondent’s shoes has no jurisdiction to proceed with the matter until the determination by the Ministry of Labour.

The arbitrator made a factual finding that the 14 day period within which the hearing is to be completed in terms of section 6 of S.I. 15 of 2006 ended on 14 September 2012.

I note that the hearing in casu was to be conducted on 4 September, 7 September, 13 September and then 20 September.  In all cases it was postponed at Appellant’s instance.  I note too that Respondent advised Appellant that his requests for a postponement meant they would exceed the 14 day period.

The purpose of the legislature in coming up with a referral to a Labour Officer where a matter has not been determined within 30 days is to ensure timely and expeditious hearing so that a hearing is done within a reasonable time from the time of laying charges.  It is clearly meant to deal with a situation where the employer is frustrating the timely and expeditious hearing by taking it to an independent body.  This is why the effect of the referral is to take away the jurisdiction of the employer.  I believe this is why is was held in Green v Chairman, NSSA appeals Committee and Anor HB 104-03, that the statutory period can be extended where there was interruption of proceedings on reasonable grounds and in the interest of justice.  In that case there had been a 28 day interruption.  The case of Zesa v Maposa 1999 (2) ZLR 452 (S) is further authority as it was found that the hearing was not a nullity on the ground that it was a High Court application by the employee which made it impossible for the employer to comply with the Code.

In casu  I find that there are reasonable grounds for Respondent to have extended the statutory period by only three days.  It was in fact, to accommodate Appellant’s requests for postponement.  In any event, by requesting the set down for the 20 September, well knowing that the 14 day period would have run out, Appellant waived his right to challenge the extension of the 14 day period.  See Mahaber v Sharman N.O. and Anor 1985 (3) SA 729 (A) 736J – 737 A which is quoted with approval in Intercontinental Holdings (Pvt) Ltd v Nechitima and Ors HH 59-10

“When a person entitled to a right knows that it is being infringed, and by his acquiescence leads the person infringing it to think that he has abandoned it, then he would under certain circumstances be debarred from asserting it.”

I therefore find that though the 14 day period was extended by 3 days, Respondent had jurisdiction to deal with the matter.

Was dismissal procedurally and substantively fair?

Appellant did not attend his hearing on the 20 September 2012 despite having proposed this date and received notice of the date and time of hearing.

I find that by boycotting his own hearing despite being afforded an opportunity to be heard, Appellant made an erroneous choice which was clearly calculated at frustrating the disciplinary proceedings.  Such behaviour is unacceptable.  The proceedings cannot in the circumstances be said to be a nullity (See Ramani v NSSA S 38/03 at P 6 TO 7).  The arbitrator cannot be faulted for finding that the Appellant abandoned his right to be present at the hearing which then proceeded without him.  Appellant should have attended and registered in writing any objections they had (See Ramani v NSSA supra).

This, I believe, even applied to the documents they required to prepare a defence.

On substantive fairness, it is not disputed by Appellant that he submitted a forged invoice which would have prejudiced Respondent of US$300.00.  In fact there is a statement in which he admits this together with the genuine and forged invoices.  It is trite that forgery and fraud are serious offences which go to the root of the employer – employee relationship by eroding trust.  They attract dismissal as a penalty.

The principle in Air Zimbabwe (Pvt) Ltd v Chiku Mnensa nd AnorSC 89 – 04  that a person guilty of misconduct should not escape the consequences of his misdeeds simply because of procedural irregularities, but because he is innocent, is apt in casu.

Appellant was therefore correctly found guilty and dismissed.

Accordingly I find that the appeal is without merit in its entirety and dismiss it with costs.

Mbidzo Muchadehama & Makoni, appellant’s legal practitioners

Kantor & Immerman, respondent’s legal practitioners