Pardon Munemo v C.P.S. Africa (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/815/14
HELD AT HARARE ON 1st SEPTEMBER, 2014
CASE NO. LC/H/157/14
AND 5TH DECEMBER, 2014
JUDGMENT NO. LC/H/815/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/815/14

HELD AT HARARE ON 1st SEPTEMBER, 2014   CASE NO. LC/H/157/14

AND 5TH DECEMBER, 2014

In the matter between:-

PARDON MUNEMO							Appellant

And

C.P.S. AFRICA (PRIVATE) LIMITED			Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: 	Mr. S. Nyagura(Legal Practitioner)

For Respondent: 	Mr. Makorie (Legal Practitioner)

MHURI J.:

Appellant approached this Court on appeal against an arbitral award basically on two grounds.  These are that –

the Arbitrator grossly erred and seriously misdirected himself on a question of law in not finding as he should have done that the dismissal of the Appellant was substantively unfair as the Respondent failed to avail a cogent and fair reason for dismissal and/or discharge the onus to prove that a reasonable employer would have dismissed the Appellant.

The Arbitrator grossly erred and seriously misdirected himself on a question of law by misconceiving the trite legal principle that procedural fairness does not equate to substantive fairness as the former does not replace the latter.

The terms of reference which were placed before the Arbitrator for consideration were whether or not the claimant was fairly dismissed and the appropriate remedy.

In determining this issue, the Arbitrator considered the evidence that was placed before him.  He noted that the proceedings that led to the Appellant’s dismissal were held in terms of Respondent’s Code of Conduct (CPS Code).  Appellant was charged under Section (VI) of the Code.  He was availed with the suspension letter of the 10th July, 2012, minutes of the hearing held on the 17th July, 2012, the outcome of the hearing of the 23rd July, 2012, Appellant’s appeal to the Appeals Officer against the dismissal.

On the basis of these documents, the Arbitrator came to a conclusion that Appellant was not unfairly dismissed and dismissed his claim.

In his heads of argument, Appellant makes the submission that Respondent did not hold any hearing against him.  All the documents that were placed before the Arbitrator were a fabrication.

I find this argument hard to believe.  Admittedly the minutes of the disciplinary proceedings are very scanty and leave a lot to be desired, but would that procedural irregularity be that fatal as to vitiate the proceedings?  I do not think so.  If it was Respondent’s intention to ensure Appellant’s dismissal at all costs by doctoring minutes as an afterthought, Respondent would have submitted well prepared and fully fleshed minutes and not what was submitted.

It is clear from the minutes that the Hearing Officer explained the charge to Appellant, referred to the suspension letter and asked Appellant whether he understood the charge to which he replied in the positive.  He was asked how he pleaded to the charges and he indicated that he did not understand.  Upon further explanation the Hearing Officer Appellant pleaded not guilty.

Thereafter the complainant then presented his case and it was at this juncture that Appellant replied ”I do agree”.

After having been asked if he had other issues he wanted considered, Appellant advised that he is a first offender, when this was refuted, he immediately asked for his benefits.

The Arbitrator therefore cannot be faulted for making the observation that compliance with procedural points is an escapable requirement.  It is trite that labour matters should not be decided solely on procedural technicalities.

It is not in dispute that Appellant referred his matter to a Labour Officer alleging unfair dismissal.  I am persuaded and agree with Respondent’s submission that, if no hearing was ever held after his suspension, Appellant ought to have referred a complaint of unfair suspension to the Labour Officer.  The fact that he referred a complaint of unfair dismissal to the Labour officer is clear testimony that a hearing was held which led to his dismissal which dismissal he referred to a Labour Officer.

It is of interest to note that Appellant denied the existence of, or being served with all the documents (see claimant’s replication) including the appeal to the Appeals Authority, but surprisingly referred his complaint to the Labour Officer at a time when all the processes in terms of the Code had been completed.  If he had been dismissed, presumably orally as he denies being served with a suspension letter, why would he wait for a period in excess of a month to lodge his complaint?

In view of the above, I reject the submission that no hearing was held and that the documents placed before the Arbitrator were doctored, were an afterthought.  The Arbitrator was therefore correct in making his findings on the documents so submitted.  The reason for the dismissal is clear from the minutes of the proceedings.  Appellant was charged with unsatisfactory work performance in that he was not performing to expected levels.  The complainant gave examples of how Appellant was found wanting in his job.  It cannot therefore be said that Respondent did not comply with what was required of it in terms of Section 12B of the Labour Act [Chapter 28:01].

To that end therefore I find the appeal to be without merit and accordingly dismiss it with costs.

Matsikidze and Mucheche–Appellant’s Legal Practitioners

Coghlan, Welsh and Guest–Respondent’s Legal Practitioners