Z.p.h. Publishers V Tsaurayi M Kanyepi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT
NO LC/H/424/13
HELD AT HARARE 18TH JUNE 2012
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGEMENT NO LC/H/424/13

HELD AT HARARE 18TH  JUNE 2012		      CASE NO LC/H/310/09

In the matter between:-

Z.P.H. PUBLISHERS				Appellant

And

TSAURAYI M KANYEPI				Respondent

Before The Honourable B.T. Chivizhe, President

For Appellant			Mr I Chagonda (Legal Practitioner)

For Respondent			Mr T Tandi (Legal Practitioner)

CHIVIZHE, B.T.:

The appeal is noted against the judgment of the Arbitrator handed down on 7 September 2009.  The Respondent has noted a cross appeal.

The background facts to the matter are as follows;

The Respondent was employed by the Appellant as a Sales Executive.  He applied for leave of absence to visit his girlfriend in Canada.  The application was turned down for the reason the Respondent had outstanding work assignments.

On 5th of April 2007 Respondent did not report for duty.  The Appellant through a representative called Respondent on his cellphone.  The cellphone was answered by Respondent’s sister who initially advised Respondent was not feeling well had gone to see the doctor.  The sister later revealed that the Respondent had gone abroad.

On the 11th April 2007 the Respondent’s doctor brought a sick note covering the period 5th April 2007 to 16th April 2007.  On 23rd April 2007 another sick note was brought covering the period 17th to 23rd 	April 2007.  On the 24th April Respondent was re to bring his passport in order for Appellant to certain whether he had gone abroad.  Respondent agreed to do so but later on the 22nd April 2007 he in an apparent to turn then refused to submit the passport.  The Respondent was then suspended without pay or benefits with immediate effect.

On the 26th of June 2009 the labour dispute was heard in the Labour Court.  The Court by consent of both parties liken issued a consent order in the following terms;

The proceedings by the employer against the Appellant be and are hereby set aside.

Those proceedings and all that which flowed out of them be and is hereby declared null and void.

The Appellant remains employed in his former position with no loss of salary and benefits.

Should the employer still wishes to proceed against  the employee, it should initiates fresh proceedings in a procedurally correct manner.

The employer bears the costs.

On the 25th of March 2009 the Respondent was advised by letter in his

reinstatement.  He was paid his back-pay and other benefits.  On the 3rd of April 2009 the Appellant re-suspended Respondent without pay and benefits.  A disciplinary hearing was convened on the 24th of April 2009.  The proceedings were presided over by Mr J Muzadzi an Independent Consultant.  The charges preferred against the Respondent were;-

Contravention of section 4 (e) of Statutory Instrument 15 of 2006 i.e. “absence from work for a period of five or more working days without leave or reasonable cause in a year.”

Contravention of section 4 (b) i.e. “wilful disobedience to a lawful order” and

Contravention of section 4 (h) i.e. “any act or conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract.”

The Respondent was found guilty of the charges or a penalty of dismissal

from employment was imposed.  The Respondent not satisfied referred a complaint to Labour Office in terms of 93 of the Labour Act.  When the Labour Officer failed to conciliate the matter was referred for compulsory arbitration.  The Arbitrator handed down an award in the following terms;

That the Respondent failed to procedurally terminate the Claimant’s contract of employment by, among other things, using an outsider as a disciplinary authority.  The Claimant is thus deemed to have remained employed by the Respondent up to the this award was made.

That Respondent be and is hereby allowed to terminate the employment of the Applicant/Claimant with effect from 7th September 2009.  This will cure the improper procedure by which the Respondent initially purported to have dismissed the Claimant.

I so award.

Aggrieved the Appellant noted the present appeal premised on the following two grounds,

The Arbitrator erred in holding that the person who presided over the hearing being a Labour Consultant was not a disciplinary authority as provided for by the National Code of Conduct.

The arbitrator erred in law in holding that the effective date for dismissal should be the date of the arbitrator award.

I shall address initially the Appellant’s grounds of appeal

The first issue is that that agitator having c................. to Mr Muzadzi

the Independent Consultant who chaired the disciplinary proceedings was not a competent disciplinary authority under Statutory Instrument 15 of 2006 erred and misdirected himself at law.  Statutory Instrument 15 of 2006 relied upon by Appellant provides a “disciplinary authority”.  The term according to the refers to a person or authority or such Disciplinary Committee dealing with disciplinary matters in an establishment or at the work place.”  By its definition the term “disciplinary authority does not preclude the hiring of outsiders as suggested by the Arbitrator.

The Appellant before the Arbitrator explained the reason why it had opted to enlist the services of Mr Muzadzi a consultant or Independent Arbitrator.  He had been hired as it would have been improper for the Executive Chairman who had conducted the initial hearing was the highest executive in the organisation.  To avoid alleging of bias Appellant decided to enlist services of a neutral person who happened to be an Arbitrator.  Against this background the Appellant in my view cannot be faulted for taking that decision.  In Dulys vs Chanaiwa SC 17/07 the Supreme Court restated the principle of flexibility in disciplinary proceedings provided that the employee is subject to a four hearing.  There has been no suggestion in casu that the Appellant did not receive a four hearing.  No clear evidence of bias or improperly on the part of Mr Muzadzi was placed before the Arbitrator or either before this Court.  I would consequently allow the first ground of appeal.

The second ground of appeal is to the Arbitrator erred in law in his timely to the effective date for dismissal should be the date of the award.  The Respondent position is that the Arbitrator was correct in holding that the effective date of dismissal should be the date of arbitrator’s award.  Having come to the conclusion that the proceedings were conducted fairly before the employer it follows the Arbitrator ought to have dismissed the complaint and confirmed Respondent dismissed from employment with effect from...

The Respondent also noted a cross appeal on the following grounds;

2.1   	The Learned Arbitrator erred both in fact and at law in holding the employer had held the disciplinary hearing within the 14 days

prescribed S.I. 15/06.

2.2	The Arbitrator erred both in fact and at law in holding that an employer who has unproceduraly and unfairly dismissed an employee, could still proceed and dismiss the employee using the same unlawful and unproceduraly proceedings, as opposed to rehearing the matter, or ordering the employer to rehear matter.

2.3	The Arbitrator grossly erred both in fact and at law in attempting to rehear the matter in the absence of both the Appellant and the Respondent.  He  should have called the Appellant and Respondent to appear in person and adduce evidence.

2.4	The Arbitrator erred at law in failing to make a determination on whether or not the employer had authority in to us S.I. 15/06 as stipulated in Section 101 (1) as read with Section 101 (10) of the Labour Act [Chapter  28:01].

2.5	The Arbitrator erred at law in holding that an employee who is bed ridden is not “automatically” entitled to “sick leave”.

2.6	The Arbitrator erred in fact, to such an extend that, and at law in determining an issue which was not part of the terms of reference, that is, whether or not the employee was absent from work without a reasonable cause.

2.7	The Arbitrator grossly erred in fact that no reasonable man apply his mid could make such a finding, in holding that the employee was absent from work without a reasonable cause.

2.8	The Arbitrator grossly erred in fact dismissing authenticity of sick leave notes on the basis that the doctor delivered them to the employer.

The Respondent has raised mainly procedural irregularities.  I shall deal

With the issues raised seriatim.

The Respondent in the first ground of appeal contents that the Arbitrator erred  both in fact or at law in holding to the employer had held the disciplinary hearing within the 14 days prescribed under Statutory Instrument 15 of 2006.

Section 6 (2) of Statutory Instrument 15 of 2006 provides for 14 days within which employer must investigate or conduct a hearing into an alleged misconduct.  The Respondent has based his calculation of the dues indicial  from the date of the Labour Court consent order i.e. is Respondent contention for as the disciplinary hearing took place three months ago breached the provisions of section 6 of Statutory Instrument 15 of 2006.

I would agree with Appellant’s position for the Labour Court hearing come a conclusion in its order dated ....... ... Respondent still remained gave the Appellant an option to, not its discretion reinstitute fresh disciplinary proceedings.  No limits given.  The fact that the Appellant took three months to reinstitute is in my view never here nor there because the Respondent was for all purposes at work and being paid his salaries.  There was no prejudice to the Respondent.  In addition Appellant’s conduct in reinstituting proceedings after 60 days cannot amount to waiver on its part.

The second and third ground of cross appeal clearly have not vent.  The Arbitrator as alludes to above, should have other conclusion for the Respondent was procedurally or fairly dismissed had no scope for rehearing the matter.

The issue as to whether or not the employer had authority to use Statutory Instrument 15 of 2006 in conducting disciplinary hearing appears to be raised as an  after charge.

The Respondent subjected himself to the disciplinary proceedings under Statutory Instrument.  He cannot cry soul at this late stage.  The ground of appeal clearly cannot stand.

The last four grounds of cross appeal touch the merits of the matter.  The Respondent’s  the he was in fact ill during the relevant period or that the doctor’s notes should have been accepted as authentic.  It is clear from a perusal of the record in the Respondent after being denied leave of absence took mouth.... leave.  The Respondent has consistently refused to produce his passport in order to put the record straight with his employer ousting the charge of wilful  disobedience.  The doctor’s notes produced by him against the above background were in my view correctly found to be fake.  Any reasonable men would have reached the same conclusion as the Arbitrator on that point.  In the circumstances the cross-appeal stand to be dismissed.

It is accordingly ordered as follows;

The appeal is allowed

The cross-appeal is dismissed

The arbitral award is hereby set down and substituted with an award as follows;

Atherstone & Cook, Appellant’s Legal Practitioners

Kentor & Immerman, Respondent’s Legal Practitioners