Zimbabwe National Water Authority v Charles Tsarukanayi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/654/2016
HARARE, 22 SEPTEMBER 2015
CASE NO.
JUDGMENT NO. LC/H/654/2016
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/654/2016

HARARE, 22 SEPTEMBER 2015		              CASE NO. LC/H/331/15

AND 21 OCTOBER 2016

In the matter between:-

ZIMBABWE NATIONAL WATER AUTHORITY			Appellant

And

CHARLES TSARUKANAYI						Respondent

Before The Honourable E. Makamure, Judge

For Appellant		Mr. J. Dondo (Legal Practitioner)

For Respondent		Mr. E.T. Muhlekiwa (Legal Practitioner)

MAKAMURE J:

This matter has been outstanding for a long time.One of the reasons for delay in finilazing it was interlocutory matters.  In order to bring finality, this Court (Muzofa J) on 14 May 2013 made the following order:

“1.	The appeal be and is hereby upheld.

2.	The matter be and is hereby referred to the Provincial Labour Officer for him/her within ten days of this order to appoint a different arbitrator to hear the matter on the merits.”

The above order meant to obviate any further interlocutory applications either before the arbitrator or before the court.

The Arbitrator accordingly sat to determine merits of the matter as directed by the Labour Court.

The facts of the matter are as follows:

The respondent was employed by the appellant. He was disciplined in terms of the relevant legislation and recommendations were made to down grade him. During the course of those proceedings a Human Resources Officer (HRO) sat as an observer. He did not participate in the proceedings.  The HRO was displeased with the penalty. He then proceeded to alter the penalty from downgrading the respondent to one of dismissal. The penalty of dismissal displeased the respondent leading to the matter being eventually heard by an arbitrator.  The Arbitrator found that the order by the HRO was inappropriate. The Learned Arbitrator ordered that the respondent be penalized in terms of an order which was made by the properly constituted Disciplinary Committee. The order by the Arbitrator reads in part:

“It is hereby ordered that the claimant be reinstated to the B3 grade position as per the disciplinary committee’s finding”

There is an alternative order for an award of the appropriate damages

The Appellant was aggrieved by that decision and appeals to this court on the following grounds:

`“1.	The Arbitrator erred and grossly misdirected herself on a point of law by dismissing the preliminary points raised on behalf of the Appellant. In particular the Arbitrator thoroughly misdirected herself and gave a determination which no Arbitrator acting properly would have given and failed to appreciate that:-

The purported appeal filed on behalf of the Respondent to the Appeals Officer on 29th April 2000 was not filed within 7 days from 13th February 2008 being the date of the determination by the Disciplinary Committee as is required in terms of Section 8 (3) of S.I. 15/06 and that the purported Appeal being fatally defective meant that there was effectively no Appeal filed by the Respondent against the Disciplinary Committee’s decision and hence there was nothing to be disposed of within the stipulated period of time.

The arbitrator failed to appreciate that the dispute between the parties emanated from merits which took place between 2007 and February 2008 and hence at the time the dispute was referred to the Labour office for the first time the dispute had prescribed and the Labour Officer had no right to entertain the dispute having regard to the provisions of Section 94 (1) of the Labour Act and therefore the Arbitrator had no dispute to determine.

The Arbitrator failed to appreciate that the undertaking that Respondent worked for was by Notice of Government Directive retransferred to Marondera Municipality with effect from February 2009 and hence the Appellant was not the proper Respondent when the Arbitrator determined the dispute.

The Arbitrator grossly erred and misdirected herself on a point of law by failing to appreciate that failure by the Respondent to refer the matter to the Labour Officer timeously under Section 101 (6) of the Labour Act or any other legal instrument applicable, having realized that his purported Appeal had not been determined within 14 days was fatal to the Respondent’s case.

The Arbitrator grossly erred and misdirected herself on a point of law by failing to appreciate that whatever prejudice Respondent claimed to have suffered by the turn of events was prejudice which was self induced by the Respondent and hence the respondent did not have to profit from events of his own making.

The Arbitrator grossly erred and misdirected herself on a point of law by failing to appreciate that having regard to evidence on record, Respondent was properly found guilty of a dismissible offence and hence dismissal was appropriate as a penalty.  Accordingly the Arbitrator grossly misdirected herself by ordering reinstatement of the Respondent.”

As noted earlier, the arbitral award was made following an order of this court to the effect that the Arbitrator should hear the matter on the merits. This means that grounds 1(a), (b) and (c) and (2) which refer to the technicalities which are interlocutory in nature, were not for consideration by the arbitrator. Those grounds are not properly before the Court.  In determining the merits, the Arbitrator found as a fact that the respondent had committed the offence in question. It was her finding that within the respondent’s domestic remedies, a recommendation had been made to down grade the respondent (p16).  However the Human Resources and Administration Officer of the respondent recommended dismissal.  According to the Arbitrator’s findings the HRO was an observer in the proceedings and had no direct role in the hearing.  This finding was not denied.  What this means is that an observer to the proceedings could not have the final say. (See Minerals Markerting Corporation of Zimbabwe v Mazvimavi 1995 (2) ZLR 353 (S) ) . The applicable code does not empower the HRO to overrule a decision of the Disciplinary Committee. Parties are bound by provisions of the applicable code.  If the Human Resources officer was disgruntled with the decision he should have followed the procedures as laid down within code and not just make an order which does not have the backing of the code. Courts have emphasized the point that employment codes bind both employer and employee. (See Clan Transport (Pvt) Ltd v Timothy Mukwengwe SC 16/99)

The order of the Labour Court directed that the matter be heard on the merits.  What this also means is that all other issues which may have concerned the appellant were overtaken by that order.  This was keeping with the principle of finality to litigation [See Ndebele v Ncube 1992 (1) ZLR 288 (S)] .The respondent has a duty to accept the findings and penalty made by its Disciplinary Committee.  It goes without saying that at the work place the employer wields a lot more power than the employee.  Such power is however not a passport to trampling upon an employee’s rights. By coming up with a decision which was not made by the properly constituted disciplinary committee, the HRO chose to ignore the requirements of the applicable code. That is not acceptable and must be condemned. Such conduct by employers would in the end cause uncertainty at the workplace and compromise the sanctity of employment codes.

The committee and not the HRO is the one that was properly seized with the matter and made its recommendations.  The Arbitrator was therefore correct in that finding. There is no need to interfere with a correct finding. This court can only interfere when it is necessary to do.  In Barrows & Anor v Chimphonda 1999 (1) ZLR 58 (S) the Supreme Court stated that:

“It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course.  It must appear that some error has been made in exercising the discretion.”

See also Vimbai Mbisva v Rainbow Tourism Tours SC 52/09.Having stated the above, I find no error in the arbitral award.  I find no merit in the appeal.

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

Dondo & Partners, appellant’s legal practitioners

Mahuni & Matutu, respondent’s legal practitioners