Rydings Primary School v G Nhemura & Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/842/14
HELD AT HARARE 28TH OCTOBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/842/14

HELD AT HARARE 28TH OCTOBER 2014		CASE NO LC/H/330/12

AND 9TH JANUARY, 2015

In the matter between:-

RYDINGS PRIMARY SCHOOL				Appellant

And

G NHEMURA & ANOTHER				Respondent

Before The Honourable B.S. Chidziva, Judge

For Appellant		Mr S Muyemeki (Legal Practitioner)

For Respondent		Ms S Chihombe (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the arbitral award by Honourable Arbitrator Yimaslu Malama which was handed down on 19 March 2012.  The award states as follows;

“Accordingly I ward

That the dismissal of 1st applicant (G Nhemara) be and is hereby confirmed.

That the 1st applicant (G Nhemara) be paid his salaries and benefits from the date of the unlawful dismissal to the date of this award.

That the 2nd applicant Austin Mangwiro be reinstated to his original position from date of unlawful dismissal and that if reinstatement is no longer an option the employee be paid damages in lieu of reinstatement the quantum of which parties may agree and failure to agree either party may refer the matter to the arbitrator for quantification of such damages.”

The brief facts of the matter are that the respondents were employed as

Security guards on 23 September 1996 and 6 April 2006 respectively.  On the 10 January 2011 whilst the respondents were on night duty a mini-bus starter worthy $2 735.00 was stolen.  On 27 January 2011 a hearing was conducted and the two were charged with

Gross negligence in the performance of duty

Gross incompetence of duties schedule 4.7 and 4.10 of National Employment Council Code of Conduct.  They were found guilty and dismissed from employment.  The respondents took up the matter for conciliation until the matter was referred for arbitration.  It is this arbitral award that appellant is appealing against.

The grounds of appeal are that the Honourable Arbitrator erred

“i)	in upholding the dismissal of G Nhemura and then awarding the same respondent relief of salaries and benefits from date of dismissal to date of award.

ii)	in awarding 2nd respondent relief of reinstatement where there was clear evidence that the 2nd respondent flouted the standing rules and abandoned post to take parties instead of being static at the main gate during the night when the theft took place.  The 2nd respondent did not adhere to the known security rules which resulted in the theft.

It is upon these grounds that the appellant prayed for the setting aside

of the award and replaced it with confirmation of the dismissal of both respondents.

The respondent on the other hand

Awarding of salaries and benefits from the date of dismissal to date of award was proper

The appellant never flouted any standing rules as they were never produced.

The respondents never received shortfalls

It is not known when the theft occurred.

The 1st respondent therefore prayed that he be paid all outstanding monies.  The 2nd respondent prayed that he be reinstated without any loss of wages and benefits.

It is common cause that

The respondents were dismissed after theft of a starter motor from the school bus.

The Arbitrator confirmed the dismissal of the 1st respondent.

What is to be decided is

Whether the 1st respondent is entitled to any damages after the disciplinary hearing had found him guilty.

The 2nd respondent should be exonerated from the wrong doing when he had made a confession.

The appellant has stated that appellant confessed to having committed

the misconduct.  In Oxford Advanced Learners’ Dictionary 7th ed at p 304 confession is defined as follows

“A statement that a person makes admitting that they are guilty of a crime.  A statement admitting something that you are ashamed or embarrassed.”

That 2nd respondent’s statement stamped 17 January 2011 does not show or indicate any confession at all.  The respondent simply narrated what took place on the day in question.  Without any other proof that the 2nd respondent committed the offence the Arbitrator did not err by reinstating him or alternatively ordering payment of damages.

The arbitrator in her findings on the first respondent stated that

“On the other hand I also find the performance of G Nhemura unsatisfactory in that he submits that before knocking off duty he “patrolled the fence, checked vehicle and found nothing amiss” but does not dispute that the fence being the area he patrolled was cut off marked by tissue papers.

It is also my humble observation that failure to notice the break in or entry by the thieves amounts to negligence.”

The Arbitrator went on to confirm the respondent’s dismissal.  Given

that position then one wonders  why in her award dated 12 February 2013 she ordered the appellant to pay the 1st respondent $6 922.00.

In the case of Ambali v Bata Shoe Company Ltd 1999 (1) ZLR 374 it was held that

“Where a person has been wrongly dismissed (rather than wrongly suspended) from employment, and seeks damages rather than reinstatement he is entitled to be awarded the amount of wages or salary, he would have earned had his contract not been prematurely terminated.  He may also be compensated for any loss to which he was deprived of as a result of the wrongful termination, but he must mitigate his loss immediately. He must look for alternative employment.  He is not entitled to sit around and do nothing.  If he does not look for alternative employment his damages will be reduced.  He will only be compensated for the period between dismissal and the date when he could reasonably have expected to find alternative employment.”

The first respondent  was not unlawfully dismissed.  He was not entitled

to any wages or salary because his contract was not prematurely terminated.  In the circumstances therefore the award for damages cannot stand.

However the arbitrator in his findings stated that that the Disciplinary Committee was not properly constituted.  The arbitrator stated that

the chairperson acted as the chairperson and complainant

the chairperson acted as a committee member as well as a committee member.

In those circumstances therefore the proceedings were held in the

correct procedural manner.  This Court therefore finds that the appeal lacks merit.

Accordingly,

IT IS HEREBY ORDERED THAT

The dismissal of 1st respondent is hereby set aside and the matter is remitted for hearing by the appellant

The hearing should be conducted by a different hearing committee.

The 2nd respondent’s dismissal be and is hereby set aside. The award of damages in lieu of reinstatement be and is hereby upheld.

Appellant is to bear costs.

Mapaya & Partners,  appellant’s legal practitioners