Prosper Mushonga v Chitungwiza Municipality

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/804/2014
HARARE, 2 SEPTEMBER 2014
CASE NO LC/H/986/2013
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/804/2014

HARARE, 2 SEPTEMBER 2014 &		         CASE NO LC/H/986/2013

5 DECEMBER 2014

In the matter between:

PROSPER MUSHONGA						APPELLANT

Versus

CHITUNGWIZA MUNICIPALITY				RESPONDENT

Before The Honourable R F Mangangadze	:	Judge

For the Appellant		W Madzimbamuto  (Legal Practitioner)

For the Respondent	R Matsikidze  (Legal Practitioner)

MANYANGADZE J:

This is an appeal against an arbitral award issued by Honourable K Segula on 1 August 2013. The arbitral award upheld the decision of the respondent’s Disciplinary Committee which found the appellant guilty of misconduct and imposed a penalty of dismissal.

The brief facts of the matter are that the appellant was employed by the respondent. Disciplinary proceedings were instituted against the appellant for his participation in an unlawful collective job action sometime in 2012. The dispute went for conciliation and subsequently arbitration. The arbitrator found nothing improper with the disciplinary proceedings leading to the dismissal of the appellant and upheld his dismissal. This prompted the appeal to this court.

The grounds of appeal are as follows:

“1.	The findings by the arbitrator on the facts were so unreasonable as to amount to a misdirection at law in that:

The arbitrator failed to determine that the conduct of the appellant did not amount to participation or incitement of an unlawful job action.

The arbitrator failed to determine the charges of misconduct as laid by the respondent amounted to splitting of charges.

The arbitrator failed to determine that the disciplinary hearing of the appellant was tainted with serious procedural irregularities which legally vitiated the whole proceedings.

2.	The Honourable arbitrator erred on a point of law by holding that the respondent properly exercised its discretion to dismiss the appellant even though the penalty imposed was ultra vires the Code of Conduct.”

From the outset, it must be stated that the question of the unlawfulness of the collective job action is not in issue. The Labour Court, in a three-judge decision of 3 April 2013, held that the collective job action was illegal. The court, acting in terms of section 107 (2) (a) of the Labour Act, [Cap 28:01], also issued a disposal order, in terms of which the respondent was authorised to take disciplinary action against those involved in the unlawful job action.

The issue before the court is whether the evidence established the appellant’s participation in the unlawful job action. The appellant was charged with six offences, all emanating from alleged participation in the unlawful collective job action. The offences were:

Participating in an unlawful job action.

Defying the Minister’s show cause order.

Absenteeism.

Disorderly conduct; Assault.

Disorderly Conduct; engage in or incite others to indulge in disorderly behaviour.

Disorderly conduct: Physical violence at work, on council property.

The appellant was found guilty of offences one to four, and not guilty of offences five and six.

The basis of the appellant’s defence is that there is no evidence to substantiate the allegations against him.

The appellant averred that the respondent failed to produce evidence to establish his participation in the unlawful job action. The respondent also failed to show that the appellant incited others to participate in the job action.

On the other hand, the respondent averred that there was sufficient evidence proving the appellant’s participation. The respondent’s Heads of Argument emphatically state, in paragraph 4.19:

“Evidence was adduced at the hearing that indeed the appellant participated in the unlawful collective job action…”

The respondent also averred that the appellant admitted participating in an unlawful job action. Paragraph 3.10 of its Heads of Argument states:

“In the present matter, the appellant admitted to the committal (sic) of the offence, therefore, why would one seek to be reinstated when he admitted to the offence.”

In the circumstances, the court is being called upon to assess the factual findings of the tribunal a quo. The decision appealed against is that of the arbitrator.

The position is well established that an appellate court, cannot easily interfere with the factual findings of the court a quo, unless such findings are shown to be grossly unreasonable. The respondent referred the court to cases which underscored this principle. The cases include Baross v Chimphala 1999 (1) ZLR 58, 62G – 63A, Hama v NRZ 1996 (1) ZLR & Reserve Bank of Zimbabwe v Granger SC-34-01.

The court was alive to this fundamental principle in its approach to this appeal.

In this regard the court had to carefully look at the arbitral award, for an appreciation of its findings and reasons thereof. I found it difficult to appreciate the basis on which the arbitrator arrived at the conclusion that the appellant participated in the alleged job action. In fact, a reading of the arbitral award, under “Analysis of evidence and arguments” shows no reasons for the arbitrator’s findings. The analysis sounds very much like a summary of the parties’ submissions preceding it. The closest reference to the participation in question reads, on page 6 of the arbitral award:

“From what was submitted a factual enquiring was done before dismissal to determine whether claimant participated in the alleged collective job action and whether any particular mitigation factors apply of which claimant and his defence counsel said were not able to put (sic) address into mitigation factors apply of which claimant and her defence counsel said were not able to put (sic) address into mitigation because the board of inquiry was out of time and they walked out.”

All the arbitrator stated was that a factual enquiry was done to determine whether the appellant participated in the alleged collective job action. There is nothing to indicate whether that factual enquiry established the appellant’s participation. Put differently, there are no reasons for judgment. Such reasons would have assisted this court in determining whether the arbitrator’s conclusion was well founded. The award does not point to any evidence assessed by the Disciplinary Committee, on the basis of which the arbitrator upheld the committee’s decision.

The court had to go further and look at the record of the disciplinary hearing. This was necessary to determine whether the record sustains the respondent’s averments that the appellant admitted committing the offence, and also that there was evidence proving the appellant’s participation in the job action. The record shows no such evidence. A careful perusal of the minutes from page 46 to 60 of the records does not show any admission of the commission of the offence, as alleged by the respondent. It is not clear on what basis this assertion was made. The minutes do not also record any evidence placing the appellant at or near the scene of the job action in question.

During oral submissions, reference was made to page 8 of the minutes (page 53 of the record). An exchange between the chairperson and the appellant reads:

“Chairperson:	Were you aware of the strike planned by ZURCWU?

Mr P Mushonga:	Yes.

Chairperson:	Are you a member of ZURCWU and what role did you play?

Mr P Mushonga:	We get instructions from our mother board but I saw a circular or memo that had advised employees not to engage in the illegal Industrial Action from the Chamber Secretary and then I went to work after the advice of the Chamber Secretary.”

It appears this is all there is, linking the appellant to the commission of the alleged offence. This is what is establishing the appellant’s participation in the unlawful job action. It is apparently the basis for the alleged admission. Admitting he is a member of the Workers’ Union executive, is not the same thing as admitting that he participated in the strike action.

The findings of the Disciplinary Committee seem to be based on that. They read as follows:

“Mr Muchesa said it was his view that Mr Mushonga was a member of the ZURCWU executive which participated in the strike and defied the Minister’s Show Cause Order hence guilty of participating in unlawful job action and defying the Minister’s Show Cause order. On the charge of Absenteeism Mr Muchesa argued that Mr Mushonga was guilty since he received the suspension letter on 29 November 2012.

Mr Muchesa felt Mr Mushonga was guilty of inciting others to indulge in disorderly behaviour since the ZURCWU executive that he is one of the members organized the strike; therefore breaching Section D, Category 3, subsection 3.12 of the Chitungwiza Code of Conduct.

Mr Muchesa found Mr Mushonga not guilty on two counts; that of breaching Section D, Category 3 Subsection 3.10; Assault and Section D Category 3 Subsection 3.9 Physical violence at work on Council property because there was no evidence to incriminate him on that.

Mr Gwanzura said since Mr Mushonga was the Deputy Secretary of ZURCWU, he knew what was happening and should have written a letter distancing himself from the strike if that was the case as he claims.”

It is quite clear the appellant’s conviction was based on inferential reasoning. It was based on circumstantial evidence. The principle on circumstantial evidence spelt out in the criminal cases of R v Blom 1939 AD 202, S v Marange 1991 (1) ZLR 244 and S v Masawi & Anor 1996 (2) ZLR 472, applies with equal measure to civil proceedings. It is to the effect that the inference sought to be drawn must be the only one that can be reasonably drawn from the circumstantial evidence.

In casu, the basis of the inference of guilt, of participation in the illegal strike, was the appellant’s membership of the Workers Union Executive, where he held the post of Deputy Secretary. The facts show nothing more than this.

This case is clearly distinguishable from the one dealt with by MURASI J in Muronzi Keresencia v Chitungwiza Municipality LC/H/525/14 which emanated from the same cause of action. The judge dismissed Mrs Muronzi’s appeal as being devoid of merit. The court had a solid basis for doing so, as shown on page 4 of the judgment. The relevant excerpt reads:

“The Finance Director read the report on Mrs Muronzi concerning closure of St Mary’s Clinic.

It was pointed out that Mrs Muronzi participated in the illegal collective job action.

That as a senior member of the ZURWU executive she had powers to stop the strike and could control and order employees to go back to work.

Both Mr Marau and Mr Kapamba agreed that basing on evidence presented to the Board, Mrs Muronzi could be charged with Absenteeism and participating in illegal strike.”(Mr Marau and Mr Kapamba were workers’ representatives)

The record further shows that in its deliberations, the Board of Inquiry found that the appellant had caused disorder. She had not reported for duty and did not perform duties as she was involved in inciting workers to strike.”

The same cannot be said in the instant case. No senior official, or any council official at all, was called to provide evidence of the appellant’s participation, like what the Finance Director did in Mrs Muronzi’s case. The council made some effort in placing evidence before the disciplinary board. It was on the basis of that evidence Mrs Muronzi was found guilty and dismissed from employment.

There was no such evidential basis in casu. All the other charges were linked to, or emanated from, the alleged participation and incitement. There was also no reason why the respondent did not call the Chamber Secretary to rebut the appellant’s assertion that she is the one who instructed him, at the council meeting of 26 November 2012, not to report for work pending issuance of a formal suspension letter.

The arbitrator’s findings, as already indicated, were terse and did not assist this court with reasons thereof. It appears the arbitral award simply endorsed the decision of the Disciplinary Committee, without giving reasons for doing so. Having regard to the absence of evidence in the disciplinary hearing record to support the decision made, the arbitrator seriously misdirected herself in upholding the same. In my view, this is one of those cases where interference with the arbitral award is justified. In the circumstances, the appeal succeeds and it is accordingly ordered that:

The appeal be and is hereby allowed in its entirety with costs.

The arbitral award issued on 1 August 2013 be and is hereby set aside.

The respondent shall reinstate the appellant without loss of pay and benefits with effect from the date of dismissal.

If reinstatement is no longer an option, the respondent shall pay the appellant damages for loss of employment, the quantum of which shall be agreed by the parties, failing which either party shall approach the court for quantification.

Nyikadzino, Simango & Associates, appellant’s legal practitioners

Matsikidze & Mucheche respondent’s legal practitioners