NATPHARM v Munyaradzi Mandaza Tigere

### Preamble
IN THE LABOURN COURT OF ZIMBABWE
JUDGMENT
NO LC/H/482/16
HELD AT HARARE 29 JULY 2015
CASE NO
JUDGMENT NO LC/H/482/16
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IN THE LABOURN COURT OF ZIMBABWE			JUDGMENT NO LC/H/482/16

HELD AT HARARE 29 JULY 2015				CASE NO LC/H/67/15

& 5 AUGUST 2016

In the matter between:

NATPHARM							Applicant

And

MUNYARADZI MANDAZA TIGERE			     	Respondent

Before The Honourable Chivizhe, J

For Applicant	  	P Nyeperayi (Legal Practitioner)

For Respondent	Ms Z. Chihombe (Trade Unionist)

CHIVIZHE J:

The matter was placed before me as an appeal against an arbitral award handed

down on the 7th July 2015.  The appeal is opposed.

Background Facts

The factual background to the matter is as follows:

The Respondent was employed by the Appellant as a Human Resources Officer.  His office was abolished on the 22nd of July 2013. On 20th September 2013 the Appellant notified Respondent employees of its intention to terminate some of its employees through retrenchment as part of a restructuring exercise aimed at reducing operational costs. The Respondent was notified on the 20th of September 2013 that he was going to be terminated through retrenchment.  His and other employees’ names were referred for approval by the Minister.  Approval was then granted on the 17th March 2014. Before the approval was however granted the Respondent was suspended on allegations of misconduct on the 8th of February 2014.

The Respondent was subsequently arraigned before the disciplinary authority on the 5th of March 2014.  He was facing charges of violation of provisions under viz

Gross incompetency or inefficiency in the performance of his or her work the allegation being that he had failed to conduct pre-employment reference checks as required before engaging Fungayi Mutasa resulting in the Appellant losing money in excess of US$24 000.00

Any act of conduct or omission inconsistent with the fulfilment of the express or implied term of employment contract arising from his failure to represent properly the interests of the employer in engaging Farayi Mutasa without following proper recruitment procedures.

The Respondent was found guilty on the charges.  A penalty of dismissal was subsequently imposed on him and Respondent was notified on the 10th of March 2014 of the termination of his employment with effect from the date of suspension i.e. 8th of January 2016.

The Arbitration

Aggrieved the Respondent referred a complaint to the Labour Office.  When conciliation failed the matter was referred to compulsory arbitration.   The terms of reference were for Arbitrator to determine;

-whether or not the claimant was entitled to a retrenchment package

-whether or not the claimant was unfairly dismissed

-the appropriate remedy

The Arbitrator in his award handed down concluded that the Appellant had raised trumped up charges against Respondent in order to circumvent Respondent’s retrenchment  which had been approved by the Minister.  He therefore found Respondent’s dismissal was unfair.  He directed that Appellant pay Respondent his outstanding salaries up to the date of approval of his retrenchment.  Thereafter the Appellant would pay Respondent his retrenchment package as approved.

Grounds of Appeal

The Appellant was dissatisfied and noted the present appeal.  The grounds of appeal are as follows:

The honourable arbitrator erred in law when he dealt with the matter notwithstanding that the respondent had not exhausted domestic remedies.

The honourable arbitrator erred in law when he decided that there was a valid claim before him notwithstanding that the respondent’s claims for unfair dismissal and for a retrenchment package were contradictory and mutually destructive of each other.

The honourable arbitrator grossly misdirected himself when he stated that the respondent ought to have been charged in 2010 notwithstanding that the misconduct was discovered by the appellant in September 2013.

The honourable arbitrator grossly misdirected himself when he entered into the arena instead of remaining impartial and this resulted in him arguing the respondent’s case unconsciously on the basis of extraneous facts.

The honourable arbitrator erred in law when he failed to consider the issues placed before him in considering whether or not the respondent was unfairly dismissed.  The failure resulted in him making an erroneous award at law.

Analysis and Findings

I shall address initially grounds of appeal numbers 1 and 2.  Both grounds relate to two issues that were raised as points in limine by the Appellant in the proceeding before the Arbitrator. The Appellant’s submission before this court is that the Arbitrator erred in proceeding to deal with the substantive issues where clearly the Respondent had not exhausted domestic remedies and therefore the matter was improperly before him.   The Appellant’s further submission was that the Arbitrator also erred at law when he proceeded to determine the substantive issues when there was no valid claim before him.  The claim placed before him was, according to the Appellant, confused as Respondent was claiming on one hand unfair dismissal and on the other hand claiming a retrenchment package as an entitlement.

The Respondent’s submission before this court is that the Arbitrator properly exercised his discretion when he decided to proceed to determine the substantive issues that fell for determination before him.  Further the Arbitrator was correct in dismissing the first point in limine as it was apparent that Appellant had an ulterior motive to dismiss Respondent.  Further the Arbitrator was correct in dismissing the point in limine as the point had not been taken at conciliation.

In regards the second point in limine taken before the Arbitrator the Respondent argued that the Arbitrator was correct in finding that the claims were not mutually destructive of each other.  On the basis of the facts and circumstances in the matter the Arbitrator was correct in finding that both claims were properly before him.  The record showed the Appellant had prior to instituting misconduct charges opted to terminate Respondent’s contract of employment through a retrenchment process.  The Respondent was therefore entitled to raise both claims. On the basis of the above the Arbitrator therefore did not err.

It is common cause the disciplinary proceedings in this matter were convened under the provisions of Statutory Instrument 15 of 2006 (National Employment Code of Conduct).  Under that Code of Conduct provision is made in Section for 8 (3) for an appeal from the Disciplinary Committee to the Appeals Officer or Appeals Committee and thereafter a reference to a labour officer and designated agent of an NEC who will act in terms of Section 93 of the Act.  Section 8 (3)   reads as follows:

“(3) A person or party who is aggrieved by a decision made in terms of section (2) may, in writing, note an appeal within seven working days with the Appeals Officer or Appeals Committee.”

Clearly therefore once when he was dissatisfied with the Disciplinary Committee’s findings the Respondent was supposed to note an appeal to the Appellant’s Appeals Committee.  There was no explanation tendered before the arbitrator as to why the matter was directly referred to the labour office.  The matter was therefore improperly before the Arbitrator.  The Arbitrator sought to justify his finding by raising the point that the point in limine should have been raised before the Labour Officer.  That finding has no merit. The point raised by the appellant being a point of law could in my view have been taken at any stage of the proceedings. The Arbitrator misdirected himself in law when he reached his conclusion on this point.  He ought to have allowed the point in limine and dismissed the matter on this point alone.

The Appellant had also raised a point in limine before the arbitrator with respect to the legal effect of having two issues standing as principal claims.  The Respondent’s claims before the Arbitrator were that he was unfairly dismissed through misconduct proceedings. The Respondent however was also at the same time claiming that the Appellant ought to pay him his retrenchment package approved by the Minister.  The Appellant’s submission before this court is that the Arbitrator erred and misdirected himself in the circumstances by finding that there was a valid claim before him.

The Respondent’s submission before this court is that the facts and circumstance show that Appellant did apply two separate and distinct termination methods i.e. retrenchment and disciplinary process. Respondent’s further submission is that he was therefore entitled to place both  claims before the Arbitrator and that the Arbitrator correctly concluded that the Appellant had unlawfully adopted two termination methods.

I am inclined to agree with the appellant that the Arbitrator was not entitled to proceed to hear the matter in circumstances. The second point in limine taken before him was also clearly meritorious.  The Arbitrator however in his award concluded that the claims were not mutually destructive.  This finding was clearly wrong.  The facts and circumstances clearly showed that although the Appellant had initially pursued retrenchment procedures the Appellant had however levelled misconduct charges prior to the approval of the retrenchment process.

The record shows that Respondent was dismissed on the 15th of March, 2014 whereas the ministerial approval was on the 17th March, 20145.  Clearly therefore the approval was granted after the Appellant’s status had altered to that of dismissed.  Having been dismissed the appellant was entitled as at that stage to pursue an appeal under the relevant code of conduct.  Assuming the matter properly was referred to the Labour Officer, which it was not for reasons as outlined above, he could only place before the Labour Officer a claim based on unfair dismissal.  He could not competently claim for the retrenchment package at that stage.  The Arbitrator therefore erred in proceeding to hear the matter where there was no valid claim before him.  The claims placed before him were mutually destructive of each other.

The Arbitrator ought to have upheld both points in limine and dismissed the claims. Having reached the above conclusion it becomes unnecessary to deal with the rest of the issues raised in this appeal.   The appeal ought to succeed and the arbitral award to be set aside.

In the result the court hands down the following order:

The appeal is allowed with costs.

The Arbitral award handed down on the 7th July, 2015 is hereby set aside.

Costa & Madzonga Legal Practitioners, appellant’s legal practitioners