Nyatsime College v Tendayi Masaka

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THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/17/24
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THE LABOUR COURT OF ZIMBABWE HARARE, 20 SEPTEMBER, 2023

AND 29 JANUARY 2023

In the matter between

NYATSIME COLLEGE

Versus

TENDAYI MASAKA

Before The Honorable L. Hove, Judge:

For Appellant	: Mr.E. Matahwa For Respondent :  Mr.J.Mufukiza

HOVE J:

JUDGMENT NO. LC/H/17/24 CASE NO. LC/H/170/23

Appellant

Respondent

This is an appeal against the decision by a designated agent reinstating the respondent (the employee) into his former position with no loss of salary and benefits. The designated agent also ordered the payment of back pay for two different periods and the appellant was not challenging the backpay which relates to the period the respondent was unlawfully dismissed.

BACKGROUND FACTS

The appellant employed the respondent as a general hand sometime in January 2009. On 1 September 2019, the respondent was upgraded to the position of boarding master.

The appellant dismissed the respondent on 17 December 2020. This was because the appellant believed that the respondent was guilty of gross acts of misconducts. This dismissal was challenged on the basis that the respondent had not been accorded the right to be heard. The respondent argued that the dismissal was an unfair dismissal by reason of the failure to accord him the right to be heard.

The appellant conceded that no due process had been followed and reinstated the respondent into his former position. After reinstating him, investigations were conducted and the appellant suspended the respondent pending the conduct of disciplinary proceedings.

The disciplinary proceedings were conducted but the respondent alleged that he had not been served with the determination or the outcome of the hearing proceedings.

The respondent referred the matter to the national employment council for the relevant industry alleging that the disciplinary proceedings had not been concluded within 30 days. Further it was alleged by the respondent that he had not been paid his salary and benefits for the period he had been unfairly dismissed.

The designated agent ordered or made the following award. “the order

Nyatsime College to pay Tendayi Masaka an amount of ZW $ 7 776, 51 and USD $ 2 585, 52 back pay for the period January 2021 to August 2021.

The charges of misconduct against Tendayi Masaka by Nyatsime College are hereby dismissed for lack of merit.

The suspension of Tendayi Masaka by Nyatsime College is hereby set aside without loss of salary and benefits with effect from September 2021.

Nyatsime College to pay Tendayi Masaka an amount of USD $ 2 216.16 as back pay for the period September 2021 to February 2022.

The appellant was not happy with this determination and noted this current appeal to this Court.

The grounds of this appeal are two and they are that;

The designated agent misdirected himself on the fact which misdirection was so gross as to amount to an error at law in finding that the respondent’s suspention was unjustified and the charges of misconduct levelled against him were without merit in the absence of considering the evidence in the record of the disciplinary proceedings which was never placed before him.

The designated agent fundamentally erred at law in ordering the reinstatement of the respondent without loss of salary and benefits on the basis of a procedural irregularity in respect of the appellant failing to issue a determination to the respondent within 30 days of the commencement of the disciplinary proceedings when instead he ought to have put the irregularity right and remitted the matter back to the disciplinary committee in order for it to make the determination.

These grounds of appeal will be considered ad seriatim

Ground of appeal no.1 ; Was the designated agent correct in finding as he did that the suspension and the charges were without merit, without considering evidence on the merits.

He correctly found that it was unprocedural to fail to determine disciplinary proceedings within 30 days. He went further to outline the option available to an aggrieved party who may refer the matter to a designated agent as had been done. The designated agent would proceed to determine the matter either in terms of Section 93 of the Labour Act [Chapter 28:01] (the Act). The designated Agent may also proceed to determine the matter in terms of Section 63

of the Act. In casu, he proceeded to deal with the matter in terms of section 63 of the Act.

In casu the designated agent proceeded to deal with the matter in terms of Section 63 of the transcript paragraph (14) he deals with the merits of the matter as follows;

“respondent has failed to make good cause of the following justification of suspension and alleged misconduct against claimant and proof of verdict by disciplinary committee. Therefore, the continued suspension of claimant cannot be justified and charges of misconduct against him cannot be sustained.”

The designated agent does not give reasons for his conclusions in paragraph 14. He just states the conclusion. He does not outline the factors that he considered in arriving at that conclusion. He failed to give reasons for factual conclusions. There is nothing to show what it is that he considering in arriving at the factual conclusions. He did not call any evidence or show that he considered any evidence. The designated agent misdirected himself and erred in law in making a finding that the disciplinary charges and the suspension were not justified on the basis of no evidence. See Ruturi v Heritage pvt (ltd)1994 (2) ZLR 374.

Failure to comply with time lines does not in itself entitle one to be exonerated on the merits. It gives the offended party the right to insist on the verdict being delivered or to have the designated agent consider the merits and issue a determination on a balance of probabilities.

The designated agent therefore failed to determine the matter in terms of law. There is therefore merit in the 1st ground of appeal.

Ground of appeal number 2: was the designated agent correct in ordering reinstatement on the basis of the procedural complaint that a determination had not been issued within 30 days as provided for?

I agree that what was essentially before the designated agent was a procedural issue. that is, failure to comply with the 30day time line. Labour matters ought not to be determined on the basis of legal technicalities, such must be put right by either ordering the disciplinary committee to issue its determination or by the designated agent determining the matter in a procedurally correct manner. See Dalny Mine v Banda SC 39/99. The designated agent erred in ordering reinstatement on the basis of a procedural technicality.

In the result, there is merit in both the two grounds of appeal.

Another issue raised from the complaint before the designated agent was whether or not the respondent had been paid his backpay and benefits for the period of the unlawful dismissal?

No issues arise concerning this issue which has been conceded.

The final issue raised was a claim for back pay for the period after the suspension and the institution of the disciplinary proceedings which were not concluded by the issuance of the determination.

These proceedings have not yet been concluded. No rights arise at this stage for either of the parties in as much as no obligations arise.

Due to the fact that the two grounds of appeal have been found to be with merit, the following order is made;

Order:

The appeal succeeds.

The designated agent’s order be and is hereby set aside and be substituted with the following;

Nyatsime College is ordered to pay Tendayi Masaka an amount of ZWL $ 7

776.51 and USD $ 2 585,52 as back pay for the period January 2021 to the August 2021.

Tendayi Masaka’s claim for backpay for period September 2021 to February 2022 is prematurely made and will be decided by the disciplinary committee.

The matter is remitted to the disciplinary committee who shall make a determination and serve it on both parties within 5 days of the date of this order.