Wengai Mutaya and Lazarus Mabika v Chitungwiza Municipality

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/320/2013
HELD AT HARARE, JUNE 26TH, 2013
CASE NO. LC/H/1023/2012
JUDGMENT NO. LC/H/320/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO. LC/H/320/2013

HELD AT HARARE, JUNE 26TH, 2013		CASE NO. LC/H/1023/2012

In the Matter between

WENGAI MUTAYA						1ST APPELLANT

LAZARUS MABIKA						2ND APPELLANT

AND

CHITUNGWIZA MUNICIPALITY				RESPONDENT

Before the Honourable B.S. Chidziva:	President

For the 1st Appellant		: Mr B. Mufadza (Legal Practitioner)

For the 2nd Appellant		: Mr L. Mabika (In Person)

For the Respondent		: Mr B. Chidziva (Legal Practitioner)

CHIDZIVA B.S.

The appellants are appealing against the award which was handed down by Hon. Arbitrator M. Dangwa which was handed down on the 28th day of November 2012.  The award is couched as follows:

“Having taken consideration of the facts, legislation and submissions made by the parties, I make the following award.

That it be, and is hereby declared that respondent is found NOT guilty of unfairly dismissing the claimants.

Each party to meet its own costs for the arbitration.

I award accordingly.”

The brief background of this matter is that the appellants were employed by respondent.  The 2nd appellant was a Clerk and the 1st appellant was a messenger.  They were charged with fraud and alternatively theft by conversion.  It was alleged that during the period ranging from the 6th of April 20120 to the 6th of June 2011, the appellants withdrew council monies in the sum of US$63 853.52 without lawful authority and converted the money to own use thereby prejudicing council.  Alternatively, they were charged with theft by conversion in that they converted the respondent’s money to own use.  They were found guilty from employment and ordered to reimburse council the sum of US$31 926.76 each.  The appellants took up the matter for conciliation but parties failed to reach an agreement.  The matter was then referred for arbitration hence the appeal before this Court.

The appellant’s grounds of appeal are that:

The Learned Arbitrator erred at law by accepting the disciplinary proceedings because they were not held in terms of the respondent’s code.

The arbitrator erred at law overlooking the fact that the onus to prove its case lay upon the respondent and not the appellants.

The arbitrator erred generally accepting without cogent evidence that the appellants were guilty of the offence charged.

The Appellants therefore prayed to this court that the arbitral award should be set aside.  They prayed that they should be reinstated in their respective roles without loss of benefits.

The respondents in response have told the court that:

Appellants have not exhausted the domestic remedies as provided for by Section 13 of the Code of Conduct.

The dismissal was in accordance with the law.

Appellants failed to exhaust domestic remedies before filing for conciliation.

The respondents have raised a point in limine.  They have told this court that appellants should have exhausted domestic remedies before approaching the Labour Court.

Clause 13 of the Code of Conduct of Municipality of Chitungwiza states that:

“13:1	If an employee is aggrieved by the disciplinary action taken against him by the board of inquiry he shall within (3) working days make a written and signed appeal to the Review Board.  The employee shall furnish his superior with a copy of the appeal.

13:2	An employee who is grieved by the decision of the Review Board may subject to the provisions of Section 97 of the Labour Act [Cap 28:01] as amended appeal to the Labour Court.”

From the disciplinary committee the appellants took up their case for conciliation and arbitration without appealing to the Review Board.  The appellant was only supposed to approach the Labour Court after approaching the Review Board.

It is very clear from the evidence before this Court that appellant has not exhausted the domestic remedies.  The appellants have the exhaust domestic remedies before approaching this Court.

For these reasons therefore the appeal is dismissed with costs.