Pioneer Transport v Angela Dandadzi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/193/2016
HARARE, 19 FEBRUARY 2016
CASE NO. [to be filled]
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/193/2016

HARARE, 19 FEBRUARY 2016 			     	CASE NO. LC/H/909/14

AND 8 APRIL 2016

In the matter between:-

PIONEER TRANSPORT						Appellant

And

ANGELA DANDADZI						Respondent

Before Honourable L.M. Murasi, Judge

For Appellant		Mr R. Matsikidze (Legal Practitioner)

For Respondent		Mr. M. Hungwe (Legal Practitioner)

MURASI J:

This is an appeal against the decision of the arbitrator who found in favour of the respondent after a hearing before that tribunal.  Most of the facts in this matter are common cause.  Appellant’s grounds of appeal are as follows:

The arbitrator a quo grossly erred and misdirected himself at law in making a finding that respondent had been unfairly dismissed based on procedural irregularities which did not vitiate the proceedings and without alleging that respondent suffered any prejudice.

The arbitrator grossly erred at law by failing to remit the matter for a hearing de novo had the hearing not properly been done.

The arbitrator a quo erred at law in failing to make a finding on the critical issue of whether the alleged misconduct was committed and if so, to make a finding on whether dismissal was the appropriate penalty.

The arbitrator grossly erred and misdirected (himself) at law in failing to make a finding that in terms of section 12 B (4) of the Labour Act, [Chapter 28:01] he is empowered at law to consider mitigation and aggravation at arbitration hearing and make a determination as to the appropriateness of the penalty.

Mr Matsikidze for the appellant, stated that he abided by the heads of argument filed of record.  It was submitted that the arbitrator had found that procedural irregularities had been committed by the appellant and the correct course of action should have been an order for a trial de novo.  To this end Mr Matsikidze relied on case law.  It was stated that by ordering the reinstatement of the respondent, the arbitrator had clearly erred as he had not pronounced on the fact whether the respondent was guilty or innocent having regard to the charges that were preferred against her.  It was also argued that the Labour Act provided for the arbitrator to hear the mitigation himself and he should have utilised the provision in this instance.  Mr Matsikidze further submitted that the respondent had not shown the extend of the bias she had suffered at the behest of the Chairperson of the Disciplinary Committee.

Mr Hungwe for the respondent also stated that he abided by the submissions filed of record. He submitted that the record clearly showed the irregularities committed by appellant’s chairperson during the disciplinary committee’s hearing.  The respondent, it was argued, was clearly prejudiced by their actions.  It was noted that the chairperson of the hearing committee had emphasised the respondent’s previous convictions before the hearing.  It was added that the Disciplinary Committee had called for aggravating evidence without hearing the mitigating features from the respondent.  Mr Hungwe further argued that the irregularities committed by the hearing committee clearly vitiated the proceedings and this had led to the unfair dismissal of the respondent.  It was further submitted that the remedy for an unfair dismissal was reinstatement which the arbitrator had awarded.  To this end, it was further argued the arbitrator’s findings were correct.

In determining this matter, it is pertinent to have a look at the arbitrator’s findings.  At page 6 of the award, the arbitrator notes the following:

“In the present case, the emphasis on the previous warning on diesel shortage before the commencement of the hearing, the invitation to the panel to lead the aggravating factors, the failure by the panel in mitigation and the panel’s failure to even consider mitigation and the exercise of casting vote not provided for or agreed upon prior to the hearing in my cumulatively constitute serious misdirection on the party (part) of the Disciplinary Authority to warrant interference by an appellate court or tribunal.  Accordingly the tribunal holds that the claimant was unfairly dismissed.”

The arbitrator thereafter goes on to order respondent’s reinstatement.  What is not revealed by the arbitrator’s decision is whether the extent of the procedural irregularities goes on to vitiate the proceedings.  It is also not stated whether the arbitrator therefore is of the view that the respondent is not guilty of the offences preferred against her.  I am in agreement with the submissions by Mr Matsikidze that the nullification of proceedings on account of procedural irregularities does not necessarily lead to reinstatement where such proceedings are set aside and the merits of the case are not determined, the parties revert to the status quo ante, to be placed before a hearing committee.

It is my view that the arbitrator, having found gross procedural irregularities, should have ordered a hearing de novo.  I understood Mr Matsikidze in his submissions to state that appellant was willing to subject itself to a re-hearing even before a different independent arbitrator.

In casu, I am of the view that the actions of the Chairperson of the Disciplinary Committee did not lead to a fair hearing.  However the remedy for the gross irregularity was not reinstatement but a trial de novo.  Generally an appellate court will not interfer with the decision of a lower court or tribunal unless there is evidence of gross misdirection.  A substantial wrong or miscarriage of justice would be occasioned by allowing the decision of the arbitrator to stand (See generally Levy vs Modus Publications 1998 (1) ZLR 229 (S)).  The arbitrator’s award cannot be allowed to stand.

In conclusion the appeal succeeds to the extent that the arbitrator fell into error by not ordering a hearing de novo.

In the result, the Court makes the following order:

The appeal is allowed.

The decision of Honourable Matongera be and is hereby set aside and substituted with:

“The decision of the Disciplinary Committee finding the Claimant guilty culminating in her dismissal be and is hereby set aside.”

The disciplinary hearing is to be conducted de novo before a different arbitrator whose costs will be met by the appellant.

The hearing in paragraph (3) above is to be held within sixty (60) days from the date of this order failing which the respondent will be deemed to have been reinstated from the date of dismissal without loss of salary and benefits.

Each party to bear its own costs in respect of the present appeal.

Matsikidze & Mucheche, appellant’s legal practitioners

Hungwe & Partners, respondent’s legal practitioners