Oswell Security v Raiza Kupenya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/627/14
HELD AT HARARE, 15TH SEPTEMBER, 2014
LC/H/656/13
& 26TH SEPTEMBER 2014
JUDGMENT NO LC/H/627/14
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/627/14

HELD AT HARARE, 15TH SEPTEMBER, 2014		LC/H/656/13

& 26TH SEPTEMBER 2014

In the matter between:-

OSWELL SECURITY 					Appellant

And

RAIZA KUPENYA						Respondent

Before the Honourable B.T. Chivizhe, Judge

For Appellant	: Mr E. Hamunaradi (Legal Practitioner)

For Respondent: Ms M. Mukucha (Trade Unionist)

CHIVIZHE, J.

This is an appeal against an arbitral award handed down on the 7th of June, 2012.

The respondent was employed by the Appellant as a Security Guard. She was dismissed from Appellant employment after being found guilty on a charge of absenteeism it being the Appellant’s allegation that Respondent had gone on leave without authority or clearance from Management. The Respondent appealed initially to the Mashonaland Local Joint Committee. That committee then ordered reinstatement without loss of salary and benefits. The Appellant appealed against the decision of the Local Joint committee to the Negotiating Committee. The Negotiating Committee referred the matter back to the Mashonaland Local Joint Committee in order to give the Appellant an opportunity to submit a record of proceedings and response to the grounds of appeal.

The Appellant’s submission is that it never received the grounds of appeal nor the request for the record of proceedings. The Local Joint Committee however proceeded to deal with the matter in the Appellant’s default of appearance. The Mashonaland Local Joint Committee then issued an order on the

23 September 2011 directing Appellant to reinstate the Respondent without any loss of salary and benefits from the date of unlawful dismissal. The Respondent was not reinstated into employment. She then referred a claim for non-payment of wages to the Arbitrator on the 7th June, 2012. The Arbitrator in his award handed down on the 5th of August, 2013 concluded that the Appellant had for unjustified reasons refused to reinstate the Respondent. The Arbitrator then directed the Appellant to pay to the Respondent arrear salaries as well as three month notice as damages in lieu of reinstatement. The total amount to be paid was US$ 4 201.00. Aggrieved by this decision the Appellant noted the present appeal.

The appeal has been noted on the following grounds of appeal.

There was no formal appeal by the respondent against the appellant’s dismissed verdict to the Local Joint Committee.  The arbitrator therefore misdirected himself and erred at law by upholding the re-instatement ordered by the Local Joint Committee.

Damages in lieu of re-instatement are not punitive in nature.  The Honourable Arbitrator erred at law and misdirected himself by ordering payment of  punitive damages to the respondent without due regard to when respondent could have secured alternative employment.

The Arbitrator’s findings are entirely based on the fact that no appeal was made by the appellant against the decision of the Local Joint Committee whereas in truth and in fact, the decision of the Local Joint Committee was not served on the appellant.  The Arbitrator therefore misdirected himself and erred at law by  upholding the decision of the Local Joint Committee which was based on appellant’s default appearance.

The Local Joint Committee was sending notices to the wrong address i.e. 8th Floor, Robinson House Corner Angwa Street/Kwame Nkrumah Avenue, Harare, whereas the appellant was already operating from 54 Central Avenue and had duly notified all stakeholders. The order of

re-instatement by the Local Joint Committee was therefore fraudulent more particularly that it was obtained deliberately behind appellant’s back.  The Arbitrator therefore erred at law and misdirected himself by upholding the fraudulent order re-instatement issued by the Local Joint Committee.

At the commencement of the proceedings before the court the Appellant counsel raised a point which had not been raised before. The point was that in terms of Clause 7 (4) of the NECCS a party which is aggrieved by the decision of the Negotiating Committee shall note an appeal. Clause 7 (2) of the same code also stipulates that an employee who is aggrieved by a decision of an employer shall appeal to the Mashonaland Local Joint Committee. It was Appellant submission that on the facts in the record the Respondent obtained a judgement in her favour i.e an order directing her reinstatement without loss of salary/benefits. The Respondent however took the un-procedural step of appealing to the Arbitrator when she clearly was not aggrieved. That procedure has no legal basis.  On that basis the Arbitrator clearly had no jurisdiction to entertain the appeal. He ought to have dismissed the matter for lack of jurisdiction.

In reply to this point the Respondent through her Representative submitted that after she obtained the second judgement by the Local Joint Committee she had approached the Appellant with a view to being reinstated. The Appellant however refused to comply with the order to reinstate her. The Appellant had also refused to compensate her with arrear salaries and terminal benefits. She had thus approached the Arbitrator with a view to enforcing the decision by the Local Joint Committee. Respondent through her Representative however admitted that the procedure was clearly not provided for under the Labour Act or its Regulations nor was it provided for under the relevant Code of Conduct. It was according to her submission a practice developed in the industry where upon an employer failing to comply with an order by the lower tribunals one can appeal to an Arbitrator as in casu.

Based on the facts in the record it is clear that when the matter was referred to the Arbitrator there was no legal basis for so referring the matter. A perusal of the record shows that when the “claim for non-payment of wages and terminal benefits” was referred to the Arbitrator by the senior Designated Agent no relevant section under the Labour Act or the relevant Collective Bargaining Agreement were cited. The relevant code of conduct provides in clause 7.3.1 that where a person is aggrieved with the decision of the Mashonaland Local Joint Committee one can appeal to the Negotiating Committee of the council. No provision exists for one to approach the Arbitrator directly for whatever reason even for enforcement purposes as suggested by the Respondent. It follows that the Arbitrator by entertaining the purported ‘appeal’ clearly had no mandate to do so as the matter was improperly before him. The proceedings before him are therefore a nullity. The proceedings ought to be set aside.

The Appellant has also in his ground of appeal prayed that the court set aside the decision of the Mashonaland Local Joint Committee handed down on 23 September 2011 on the basis that the decision which was made in Appellant default was erroneously arrived at. The Appellant was according to its papers not served with notice of hearing, the notice having been sent to a wrong address. The Appellant had also not received the Local Joint Committee decision as it was again sent to the wrong address.

The Respondent position is that the Appellant throughout the proceedings was ignoring court process served on it. The Appellant was served with notice of the hearing before the Mashonland Local Joint Committee and ignored it. The notices were contrary to Appellant’s assertion sent to the correct address and acknowledged. The Appellant deliberately ignored the process and was only jolted into action upon receipt of the quantified award by the Arbitrator. On that basis it was Respondent submission that the decision by the Local Joint Committee was properly arrived at and should consequently be upheld.

There is no doubt that the Appellant indeed received the order by the Local Joint Committee which was served at 54 Central Avenue which the Appellant in its papers submitted was the correct address. The record shows the decision was received on the 7 October, 2011. There is in the record proof of service on an official who appended his signature and an official stamp from Appellants Company.

The Appellant however in the face of an order entered against it by the Local Joint Committee, did not exercise its right to either appeal against that decision to the Negotiate Committee in terms of Clause 7.3.1 of the code or seek to rescind what was essentially a default judgement entered against it. In the circumstances the decision by the Local Joint Committee, not having been overturned on appeal nor rescinded still stands.  The appeal therefore partially succeeds to the extent that the arbitral award is set aside.

It is accordingly ordered as follows;

The appeal partially succeeds.

The arbitral award handed down on the 7 June 2012 be and is hereby set aside.

The decision by the Mashonaland Local Joint Committee dated 23 September 2011 still stands.

Hamunakwadi, Nyandoro & Nyambuya, appellant’s legal practitioners