Zimbabwe Manpower Development Fund v Tendai Tamanikwa & 2 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/252/16
HELD AT HARARE 2 MARCH 2016
CASE NO
JUDGMENT NO LC/H/252/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/252/16

HELD AT HARARE 2 MARCH 2016				CASE NO LC/H/1128/15

& 22 APRIL 2016

ZIMBABWE MANPOWER DEVELOPMENT FUND		Appellant

TENDAI TAMANIKWA						1st Respondent

ENMERSON PAMIRE						2nd Respondent

FRANK TINARWO						3rd Respondent

MUSARIRI, J:

On 8 December 2015 arbitrator C T Kadenga issued an arbitration award.  She ordered appellant to reinstate respondents’ employment or pay them damages in lieu of reinstatement.  Appellant then appealed to this court against the award.  Respondents opposed the appeal.

The grounds of appeal were four-fold thus,

The arbitrator erred on a question of law by substituting the employer’s discretion to impose a dismissal penalty.

The arbitrator erred on a question of law by not realising that the respondents’ misconduct went to the root of their employment contracts thereby justifying a dismissal penalty.

The arbitrator grossly erred and misdirected himself that she had no jurisdiction to determine on the second count against the respondents as per section 4 (2) b of the Arbitration Act.

The arbitrator grossly erred and misdirected herself at law by failing to find that the appeal to the internal appeals officer was filed out of time.

The matter involved two sets of misconduct.  One concerned refusal to sign a

secrecy declaration.  The other involved refusal to return motor vehicles by 1st and 3rd respondents upon their suspension.  I will deal with the incidents in reverse order.

Motor Vehicles

The respondents were suspended without pay and benefits.  They were instructed to return the employer’s property including the vehicles.  They did not do so.  They claimed that they had claims of right in terms of verbal agreements to purchase same upon termination of their employment.  The arbitrator found in their favour on this point.  However his reasoning was that he had no jurisdiction to deal with that court.  He opined that as the parties had referred the issue of the vehicles to the High Court, section 4 (2) b of the Arbitration Act [Chapter 7:15] ousted his jurisdiction.  The section provides that

“The following matters shall not be capable of determination by arbitration-

---

A dispute which, in terms of any law, may not be determined by arbitration.”

The arbitrator stated that the law referred to is the Companies Act.  But he did not

cite the provision in the latter Act which prohibits determination of the parties’ dispute by arbitration.  I am not aware of any such provision and neither was I referred to same.  Accordingly I consider that the arbitrator erred in declining jurisdiction.  Respondents were on suspension.  They were instructed to return the employer’s vehicles.  They refused to do so whilst claiming some right in the vehicles.  This prima facie constituted wilful refusal to obey lawful instructions.  Their own defence that they were entitled to purchase same upon termination of their employment does not suffice.  They had been suspended and not terminated.  This by the way applies to 1st and 3rd respondents but not 2nd respondent.

Secrecy document

The arbitrator found that all respondents were guilty of misconduct by failing to sign the document as instructed.  However he found that dismissal was not warranted in light of the circumstances of the case.  However I have reservations on the lawfulness of the instruction to sign the document.  Respondents also raised this point during arbitration.  Their position was succinctly put thus

“Claimants maintained that an employee cannot be forced to sign for a condition of employment without his or her consent.”

Appellant argued that since respondents have not appealed, they are bound by the arbitrator’s finding that the instruction was lawful.  I disagree.  Whether or not the instruction was lawful is evidently a point of law.  It can be raised at any stage of proceedings even on appeal.  Parties cannot be hamstrung by an arbitrator’s error on law simply on technicalities.

Respondents were right to argue that the employer sought to introduce new terms in their employment contracts.  Such contracts can be waived by the consent of both parties.  However terms cannot be imposed by one party on the other.  This goes against the concept of freedom of contract.  An employer is obliged to negotiate with the employees when he wishes to introduce a new document into the employment contract.  Appellant was apparently aware of this as it engaged in some consultation with the employees in respect of the new document.  The employees (or some of them) were reluctant to sign.  The employer then decided to charge with misconduct those who did not sign.  That was impermissible at law.

Appellant’s attorney sought to argue that it is an implied term of an employment contract that an employee shall not divulge the employer’s secrets.  On that basis he argued that the secrecy document simply incorporated that term.  The implied term requires the employee to keep the employer’s secrets.  It does not require the employee to sign new documents midway in the tenure of his employment.  He may not agree with the way the duty is put in the document.  Thus his consent is required in signing the document.

The foregoing analysis leads me to the following conclusions:

1st and 3rd respondent were properly found guilty by appellant on the count involving vehicles;

Dismissal was a prescribed penalty for the misconduct

The arbitrator did not have a valid basis for interfering with the employer’s discretion on penalty;

Nothing beyond the ordinary was said in mitigation to justify a lesser penalty

All respondents were not guilty of the charge related to the secrecy document.

WHEREFORE IT IS ORDERED THAT

The appeal be and is hereby allowed;

The arbitration award issued by arbitrator C K Kadenga dated 8 December 2015 is set aside;

The dismissal from employment of 1st and 3rd respondents by appellant is upheld,

a)	The appellant shall reinstate the 2nd respondent without loss of salary and

benefits, or

b)	If reinstatement is untenable, appellant shall pay 2nd respondent damages in a such either agreed by the parties or assessed by this court.

G MUSARIRI

J U D G E