Musunga & Associates v Phanuel Kuchekengya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/509/2016
HARARE, 18 MAY 2016 &
9 SEPTEMBER 2016
CASE NO LC/H/987/2015
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/509/2016

HARARE, 18 MAY 2016 &				            CASE NO LC/H/987/2015

9 SEPTEMBER 2016

In the matter between

MUSUNGA & ASSOCIATES						APPPELLANT

And

PHANUEL KUCHEKENYA						RESPONDENT

Before the Honourable Hove J

For the Appellant	A Masango (Legal Practitioner)

For the Respondent	In Person

HOVE J:

This is an appeal against an arbitral award.

The facts of the matter are that the respondent went on leave for the whole month of June. His evidence was that he was told by the employer to go on leave and the employer would call him back when they wanted him otherwise he would check with the employer when he came to collect his June salary. He was however charged with absenteeism and was found guilty and dismissed.

The appellant argues that the respondent was told to go on leave yes but the leave was just for nine days and he ought to have reported back for duty after the nine days.

This was disputed by the respondent who stated before the arbitrator that he was hearing the nine day period for the first time in the hearing. He submitted that he had in fact asked that he fills in the leave forms when he was requested to go on leave but the employer through its secretary had stated that it was not necessary because the boss was aware of the arrangement and was the one who had tasked her to send the respondent on leave.

The arbitrator heard evidence from both sides and found that on a balance of probabilities, the respondent’s account of what had transpired was the more probable version of what actually took place.

The arbitrator then found for the respondent. The appellant was not happy so it noted this appeal to this court.

The grounds of appeal are that:

The arbitrator erred in law by holding that the respondent was unfairly dismissed yet the respondent was dismissed in terms of the Statutory Instrument 15 of 2006 and as such there was no unfair dismissal as provided for in terms of section 12B subsection 2 of the Labour Act, [Chapter 28:01].

The honourable arbitrator erred in law by entertaining the respondent’s claim yet it was brought more than seven days in breach of section 6 of Statutory Instrument 15 of 2006 in terms of which the hearing of the respondent was held.

The arbitrator erred in dealing with matters beyond the scope of the submission to arbitration by holding that there was no substantial justice yet the respondent’s claim and the issue for determination was whether or not the respondent was unfairly dismissed.

The arbitrator erred in setting aside the dismissal of the respondent yet the respondent was properly found guilty of absenteeism.

I shall proceed to address the issues seriatim

Whether the arbitrator erred in law in holding that the respondent was unfairly dismissed yet the respondent was dismissed as provided in terms of Statutory Instrument 15 of 2006 and as such there was no unfair dismissal as provided for in terms of section 12B (2) of the Labour Act, [Chapter 28:01].

The appellant is in my opinion trying to throw a red herring to confuse the issues. The arbitrator came to the conclusion that the proceedings had been conducted in terms of SI 15/2006 but the issue that was to be considered was whether or not the respondent had committed the act of misconduct for which he had been found guilty of. The arbitrator stated in his decision as follows:

“Unfair dismissal is not limited to the procedural aspect as the respondent appears to focus and emphasise on only …….. while the respondent managed to show that the claimant was dismissed in terms of the model code, the matter which matters in these proceedings is whether or not there was substantive justice. In other words, the issue is on whether the claimant indeed committed the misconduct of which he was found guilty.”

The arbitrator clearly shows that he was focusing on the issue of substantive justice. He was satisfied that procedural justice had been demonstrated to his satisfaction but, was the respondent guilty of the allegations he was facing?

This ground of appeal is mischievous and seeks to take the court’s mind away from the real issue? The arbitrator had found that procedurally, the employer had shown that there was procedural fairness. In other words the employer had succeeded on this point, there was no need to try and throw it into the arena again. The unfair dismissal as eventually found by the arbiter was on the basis that the respondent was not guilty of the charges, and not on the basis of procedural irregularities.

This is the correct approach taken by the arbitrator. The Supreme Court has on several occasions insisted that an accused employee should escape centure, not on the basis procedural irregularities but on the basis of whether or not they are innocent of the charges raised against them. The arbitrator after dealing with the technicalities he properly considered the merits of the matter. See in this regard the case of Air Zimbabwe v C Mensa SC 89-04.

This ground of appeal is therefore without merit.

Whether the arbitrator erred in dealing with matters beyond the scope of the submission to arbitration by holding that there was no substantial justice yet the respondent’s claim and the issue for determination was whether or not the respondent was unfairly dismissed

There is no merit in this ground of appeal. The arbitrator considered whether the respondent had been unfairly dismissed and found that the respondent was not guilty of the charges preferred against him and therefore the dismissal was unfair. One of the terms of reference was “whether or not the complainant was unfairly dismissed”.

This was what the arbitrator dealt with.

Whether the arbitrator erred in setting aside the dismissal of the respondent yet the respondent was properly found guilty of absenteeism?

The arbitrator found that the respondent was on leave as was disclosed by the facts before him.

He found as a matter of fact that the respondent was not absent and therefore the dismissal was unfair. The facts as found by the arbitrator show that the respondent was not properly found guilty.

Those factual findings cannot be challenged before this court unless there has been an allegation that in so finding, the arbitrator had been grossly unreasonable or grossly irrational. There has not been any such allegation.

In the cases of Sable Chemicals v David Peter Easterbrook 2010 ZLR (2) 342, National Foods Limited v Mugadza SC 105/95, Coh-coh Enterprises (Pvt) Ltd v Mativenga & Anor SC 30-01, and Tririvangana v University of Zimbabwe SC 21-13  the courts make this point that an appellant court can only interfere and upset findings of fact if the exercise of discretion by the court or tribunal a quo was irrational on the basis of the evidence placed before it as had been stated in the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664.

The ground of appeal is therefore without merit.

Whether or not the arbitrator ought to have held that the matter was improperly before him in that the respondent had failed to act within the prescribed seven days.

This ground of appeal has merit. The respondent ought to have referred his matter for conciliation within the prescribed time limits. Failure to do so was fatal to his case. It is on this basis alone that the appeal is found to be with merit.

The appeal is therefore upheld with no order as to costs.

Musunga & Associates, appellant’s legal practitioner