UZ-UCSF Collaborative Research Programme v Tserayi Machinda

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/40/2016
HARARE, 27 MAY 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                   JUDGMENT NO. LC/H/40/2016

HARARE, 27 MAY 2015			           		CASE NO. LC/H/236/11

AND 22 JANUARY, 2016

In the matter between:-

UZ-UCSF COLLABORATIVE RESEARCH PROGRAMME		Appellant

And

TSERAYI MACHINDA							Respondent

Before The Honourable E. Makamure, Judge

For Appellant		Mr H. Mutasa (Legal Practitioner)

For Respondent		Mr T. Gumbo (Legal Practitioner)

MAKAMURE, J:

This is an appeal against the decision of an arbitrator wherein the Arbitrator set aside the employer’s decision to dismiss the respondent and made an award ordering the respondent’s reinstatement with an alternative of an award for damages should reinstatement be no longer possible.  The employer was aggrieved by that determination and appeals to this court on the following grounds:

“The Honourable Arbitrator erred in law when he found that the charge preferred against the Respondent was not work related but that of a social nature concerning two adults.

The Honourable Arbitrator erred in law when he found that the decision of the Disciplinary Committee was too severe so as to induce a sense of shock.

The Honourable Arbitrator seriously misdirected himself when he proceeded on the basis that the Respondent’s dismissal had been prompted by the financial prejudice on the part of the Appellant and also a breakdown of the relationship between Respondent and one Ruvarashe Hwanyanya (“Hwanyanya”).

The Honourable Arbitrator erred in law when he found that the Appellant violated Section 7 (a) (i) of S.I. 15/06 when it imposed the penalty of dismissal against the Respondent.

The Honourable Arbitrator erred in law when he found that the Appellant ought to have protected its reputation through transferring the Respondent to another Station as opposed to issuing the penalty of dismissal.

The Honourable Arbitrator erred in law when he found that the Disciplinary Committee did not allow Respondent to address it in mitigation.  In view of the undisputed evidence, such a finding was so grossly unreasonable that no court applying its mind to the facts would have arrived at the conclusion.

The Honourable Arbitrator erred in law when he found that the Appellant had failed to follow the prescribed procedure when it dismissed the Respondent.

The Honourable Arbitrator seriously misdirected himself when he proceeded on the basis that one Ruvarashe Hwanyanya had published her H.I.V test results with a view to enticing the Respondent into marriage.

The Honourable Arbitrator seriously misdirected himself when he proceeded on the basis that the dismissal of the Respondent was at the instance of Hwanyanya as a way of seeking relief against the Respondent.

The brief facts of the case are that the respondent was the Director of its Community Based Voluntary Testing and Counseling Programme (CBVCT). He was based at Mutoko Centre.  The programme focused on studying behavior patterns with a view to preventing H.I.V. and Aids infections.  Persons came to the Appellant’s New Start Centre for testing. One such person was a woman called Ruvarashe Hwanyanya (Hwanyanya).

The respondent developed a relationship with Hwanyanya. The relationship developed outside or away from the workplace.  This resulted in the birth of a child.  Respondent denied paternity and responsibility for that minor child.  That is when Hwanyanya reported the respondent to his employers. This led to disciplinary proceedings being conducted against him.  The respondent was charged for violating Section 4 (a) of the National Code of Conduct Statutory Instrument 15 of 2006.  He was charged thus (page 36):

“You are being charged with contravention of Section 4 (a) of SI 15 OF 2006 – an act of conduct or omission inconsistent with the fulfillment of the express conditions of your contract; the conditions which are that you had an impropriate relationship with a potential/Study participant Ruvarashe Hwanyanya who subsequently fell pregnant and you denied responsibility.”

As noted earlier, the respondent was dismissed from employment leading to the matter being arbitrated upon.  The Learned Arbitrator made a finding, among others, that the relationship between respondent and Hwanyanya occurred between two consenting adults.  The Learned Arbitrator noted that the respondent was suspended from duty twice.   The Learned Arbitrator observed that the appellant leveled misconduct charges against the respondent but did not follow the matter to finality.  Neither did it withdraw those initial charges.  Without having not so withdrawn the initial charges the appellant proceeded to level the charges which led to the present proceedings.  The Learned Arbitrator noted that once a charge has been preferred, Section 6 (2) (a) and (b) of SI 15/06 require either completion of the whole process or a withdrawal of the charges.

It is also to be noted that the said Hwanyanya in a letter dated 6 June 2006 (p37), distanced herself from a letter dated 15th March 2006 which is the basis of the disciplinary proceedings. In other words the appellant could not meaningful charge the respondent in the presence of such conflicting reports. The arbitrator noted that the Civil Courts dismissed the said Hwanyanya’s application for maintenance of her minor child by the respondent.  The Learned Arbitrator made a finding that the reason for the disciplinary proceeding being conducted against the respondent emanated from the fact that the relationship between respondent and Hwanyanya had broken down.  In the result the Learned Arbitrator, while accepting that what the respondent did was morally reprehensible, made a finding that did it not amount to a violation of section 4 of SI 15/06.  It was a finding of the Learned Arbitrator that there was no proof that the respondent did not satisfactorily discharge his contractual obligations nor was it alleged that the said relationship was consummated during working hours.  Thus the Learned Arbitrator concluded that this was a civil matter and not a labour matter.

It is instructive to note that the respondent was disciplined for engaging in an inappropriate relationship with a “potential/Study participant.”  This makes it unclear as to whether or not the relationship engaged in was with a participant or a non participant of the appellant’s program.

The respondent’s position is that the said Hwanyanya was not part of the program.   Obviously the respondent’s moral blameworthiness is high.  However that happened outside the workplace.  That was the finding of the Learned Arbitrator. I make a similar observation.  There was, as the Arbitrator found, no evidence led to prove that as a result of the respondent’s conduct, the success of the programme was compromised say, for example, with the consequence that participants withdrew from the program.

In Chinyange v Jaggers Wholesalers SC 24/04 the Supreme Court stated that where a misdirection has been alleged the appellant must show or prove that the misdirection amounts to point of law.  No misdirection has been proved against the Learned Arbitrator’s findings.

It would appear from the facts that Hwanyanya was aggrieved by the respondent’s failure to marry her and also his failure to maintain her minor child.  Clearly there is a grievance but that is of a civil nature. This court has no jurisdiction to deal with civil matters. So had the respondent accepted responsibility, Hwanyanya would not have approached the appellant. Consequently the Labour dispute resolution system would not have been involved.

In Sable Chemicals Industries Limited v David Peter Easterbrook SC 18/10 the Supreme Court stated that:

“The position is also settled that a serious misdirection on the facts amounts to a misdirection in law as the giving of reasons that are bad in law constitutes a failure to hear and determine according to law.  For an appellant to avail himself of a misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational – see Hama v National Railways of Zimbabwe 1996 (1) ZLR (S) 607 A-B”

The nature and circumstances of present matter are such that the Arbitrator had to make the findings that he did.  I cannot say that the Arbitrator’s decision was irrational.

On the question of penalty, (grounds 3,4,5), the law is clear.  Once an employer has taken a serious view of the misconduct to the extent that he/it views dismissal as the appropriate penalty, a superior court should not interfere with the employer’s discretion. [(see Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60-03)].  The appeal court can only interfere where an employer has improperly exercised this discretion.  In the present case however the question of penalty would only call for consideration had the conviction been supportable. The employer’s decision as correctly found by the Arbitrator is not supportable. The Arbitrator’s findings in my view are beyond reproach.  In Passmore Malimanjani v Central Africa Building Society (CABS) SC 47/07 the Supreme Court stated that:

“It is trite that an appeal court does not interfere with the exercise of discretion by a lower court unless it is shown that the discretion was improperly exercised.”

In Chaduka NO & Anor v Mandizvidza 2002 (1) ZLR 72 (S) the Supreme Court in dealing with a matter that was constitutional in nature, discouraged the courts from interfering in affairs between two consenting adults. The decision between Hwanyanya and the respondent was between two consenting adults. Further this matter does not fall within the jurisdiction of the Labour Court, it being purely a civil matter.

In view of the foregoing I find that there is no merit in the appeal.  The appeal fails.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Gill, Dodlonton & Gerrans, appellant’s legal practitioners

Kantor & Immerman, respondent’s legal practitioners