Zimbabwe United Passenger Company v Jacqueline Gandidzanwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/295/16
HARARE, 16 MARCH 2016
CASE NO.
JUDGMENT NO. LC/H/295/2016
---------




IN THE LABOUR COURT OF ZIMBABWE	                     JUDGMENT NO. LC/H/295/16

HARARE, 16 MARCH 2016					        CASE NO. LC/H/182/15

AND 13 MAY 2016

In the matter between:-

ZIMBABWE UNITED PASSENGER COMPANY			Appellant

And

JACQUELINE GANDIDZANWA						Respondent

Before The Honourable E. Muchawa, Judge

For Appellant	B. Ngwenya (Legal Practitioner)

For Respondent	J Dondo (Legal Practitioner)

MUCHAWA, J:

This is an appeal against an arbitral award.

The respondent was employed by the appellant as its human resources manager from 1 July 2012.  The contract was to run to the 30th of June 2015.  On the 28th of April 2014, the appellant was however charged in terms of the National Employment Code of Conduct SI 15 of 2006, of gross incompetency or inefficiency in the performance of her work being a charge under Section 4 (f).

The facts giving rise to the charges were stated as;

“It is alleged that you failed to achieve and maintain the bus worker ratio at 1:4 as stipulated on your RBM Performance contract.  During the first quarter 2014, the ratio deteriorated to 1:5.1 resulting in additional manpower costs.  During the same quarter operational buses were 199 implying that you had 219 extra employees on the payroll which contributed to the rise of the salary costs to 19% of revenue against a benchmark of 15% salary costs to revenue.”

At the disciplinary hearing held on the 9th of May 2014, the respondent requested that the disciplinary authority recuse himself from the hearing.  The disciplinary authority was the divisional operations manager.  This preliminary point was dismissed.  At the end of the hearing, the respondent was found guilty as charged and dismissed from employment.

The respondent was disgruntled and the matter ended up before arbitration.  The arbitrator set aside the verdict of guilt and the dismissal penalty and ordered reinstatement or alternatively the payment of damages in lieu of reinstatement amounting to $ 27 204.95.  Further, it was held that the request for recusal of the disciplinary authority had been unjustifiably denied.

On appeal before me are the following grounds;

The Honourable Arbitrator erred and grossly misdirected himself when he found that the chairman who presided over the disciplinary hearing of the respondent had an interest in the matter when no reasonable evidence was tendered by the respondent to support this.

The Honourable Arbitrator erred and grossly misdirected himself when he found that the respondent only signed the RBM contract on the 24th of March 2014 and charges were raised on the 24th of April 2014 thus giving her insufficient time to perform when it is common cause that these contracts were introduced in 2013 and all employees (including the respondent) were supposed to sign the contracts at the beginning of each year.  In the circumstances, failure on the part of the respondent to sign her contract on time cannot be used to exonerate her.

The Honourable Arbitrator erred and grossly misdirected himself when he found that since the respondent’s functions were affected by other departments she would not be held responsible on the bus/worker ratio when the respondent failed to demonstrate this fact or at least show that she protested any alleged mismanagement as required by her or the Human Resources Manager.

The Honourable Arbitrator grossly erred when he found that indeed the respondent had failed to meet her obligations in terms of the contract but went on to set aside the dismissal.

The respondent abandoned a point in limine relating to the propriety of the appeal, at the hearing of this matter.

The appeal is opposed and I turn to deal with each ground in turn below.

Ground 1 – Bias and Recusal of the disciplinary authority

The appellant argues that the arbitrator took into account wrong considerations in assessing the question of bias.  It is alleged that the issues raised by the respondent were no more than what has been termed “institutional bias” in the case of Musarira v Anglo American Corporation 2005 (2) ZLR 267 (S) and that such bias does not vitiate proceedings.

The grounds raised before the disciplinary authority, Mr Muwoni who was the Divisional Operations Manager were;

He had also signed the Results Based Management (RBM) contract and he was also expected to perform according to his own targets.

As part of his RBM targets, he was supposed to increase bus fleet availability from 73% to 95% but he had constantly failed yet he had not been charged for such failure.

His colleague who occupied a similar post in the Northern Division was charged for his failure but he was not.

If he had done his part and met his targets on revenue attainment, this disciplinary hearing would not have been held.

The respondent’s argument was that she could not expect a fair hearing from someone who was also failing.  Her thoughts were “maybe he has been promised immunity if he gets rid of the defendant.” (self)

Mr Dondo for the respondent argued that the reasoning of the arbitrator cannot be faulted.  I was referred inter alia to the case of Leopard Rock Hotel Co Pvt Ltd and Anor v Wallen Construction (Pvt) Ltd 1994 (1) ZLR 255 as to the test to be applied in deciding whether or not a judicial officer should recuse himself.

The test is an objective test and all that is required to disqualify a presiding officer from hearing a dispute is that facts exist that would cause a reasonable lay litigant or lay observer to think that the presiding officer is biased against him.  See R v Foya & Anor 1963 (3) SA (FC) and Associated Newspapers of Zimbabwe Pvt Ltd & Anor v Diamond Insurance Company (Pvt) Ltd HH/58/01.

The case relied on by the appellant of Musarira v Anglo American Corporation supra is distinguishable in my opinion.  It concerned an allegation that the hearing officer would be biased as he had investigated the matter and laid the initial charges.  It was found therein to be untrue that he had investigated the matter.  The court found that there was no prejudice resulting from the hearing officer’s laying of the initial charges which went beyond institutional bias found in all labour matters at internal level. In that case no allegations of bias were made when the matter went to the committee.  In that case, the case of Rose v Johannesburg Local Road Transportation Board SA 272 (4) 1947 is cited.  It lays out the correct test being that there must be a reasonable ground for the appellant believing that he could not receive justice and a fair hearing and decision.

In casu, the respondent was saying that given our shared responsibility to ensure that the targets I am accused of failing to fulfill are fulfilled and the common cause facts that the disciplinary authority has not met his own targets and others in his position are known to have been charged, I do not believe that this particular disciplinary authority will dispense justice and a fair hearing.

The test is not whether the judge will actually likely be impartial.  It is the reasonable perception of the parties as to his or her impartiality.

In my considered opinion, the disciplinary authority should not have hesitated to recuse himself as there were reasonable grounds for apprehending that the disciplinary authority would not be impartial.  This went beyond institutional bias.

I find no merit in ground 1 of appeal.

Ground 2 – Whether the respondent was given sufficient time to perform

The arbitrator found as a fact that the respondent had signed her RBM contract on the 24th of March 2014 and that charges were raised against her on the 24th of April 2014.  He noted that the respondent was given just a month in which to perform.  He noted further that even the appellant through its disciplinary authority, had also signed the RBM scorecard in March 2014.  It was a finding of the arbitrator that the RBM contract could not have retrospective effect in the circumstances.

It is the appellant’s case that the RBM contracts were not introduced in 2014 but in 2013 and that respondent had the responsibility of ensuring such contracts were signed at the beginning of every year.

I was urged to interfere with the arbitrator’s award on the basis that it was unreasonable as he did not consider relevant matters.  See Tobacco Research Board v Nelson Magaya S-9-04.

The respondent argues that the charge against the respondent related to the RBM Performance contract and targets for the first quarter of 2014.  It was therefore not reasonable to charge an employee for inefficiency or gross incompetency one month after signing the contract as she was not given any prior warning nor a reasonable opportunity to improve.

The evidence before the arbitrator was an RBM contract signed by both parties on the 24th March 2014.  It is not apparent from the record that the Board’s view had any merit.

“The Board is of the view that the Appellant as Human Resources Manager, she must have ensured that all RBM contracts were signed by the 1st of January or early January each year.”

It may have been their expectation, but it was not the fact.

The arbitrator noted that the appellant could not explain what could have been done in a month’s time regarding reducing staff numbers in light of the contracts which ranged up to six months but there was no suitable response.

The respondent explained in her replication the process of coming up with an RBM contract which emanated from a strategic document, a budget, the chief executive officer’s contract, then those of the executives, then finally those for heads of department, where the respondent belonged.  She therefore explains that by January 2014 this process had not yet been completed and as the human resources manager she had no way of making sure these were signed by that date.

The initial disciplinary minutes however include an uncontroverted fact that the bus-worker ratio was agreed in July 2013 and it had not been met since then even before the new RBM contract signed in March 2014.

From the facts I find therefore that the arbitrator correctly disregarded the responsibility the appellant sought to foist on the respondent for the late signing of the RBM contract.  He however did not give due weight to the fact that the targets were known between the parties before March 2014.

Ground 3 – Whether the other departments affected the respondent’s performance

The appellant argues that the arbitrator misdirected himself on the law when he concluded that the respondent could not be held responsible for failing to maintain a viable bus worker ratio because other departments affected her.  It is contended that in reaching this conclusion, the arbitrator ignored the fact that the respondent was accountable to the Board and not the other departments and should have communicated with the Board.

It is said too, that it is wrong for the respondent as a senior employee to foist her ultimate responsibility on other employees as per Tapiwa Frank Zhou v Zvimba Rural District Council SC-42-06.

The respondent refers to her letter of appointment to point out that she had no access to the Board but reported directly to the chief executive officer to whom she raised her complaints about the effect of the other divisions of her work.  She illustrated how bus availability was not her responsibility but that of DOMS.  Also how the wage bill revenue was a result of certain positions being recruited without her input inspite of advice given to the FAD.  Further she explained that she was not consulted in such decisions but only instructed.

The case of Tapiwa Frank Zhou v Zvimba Rural District Council supra is distinguishable.  Mr Zhou was in a management and supervisory role to the treasurer who had failed to perform.  As the overall head of operations at council and as he held a position of great responsibility, it was held he had a duty to ensure the treasurer fully complied with council regulations.

In casu, the respondent’s role was purely administrative and not operations.  She did not supervise the chief executive officer nor the executives who affected her work through their executive decisions such as recruitment.  In the organogram as a head of department, she fell under the executives.

In the circumstances, the arbitrator cannot be impugned for his conclusions.

Ground 4 – Alleged inconsistency

The appellant argues that there is an inherent inconsistency in the award I was pointed to an observation made by the arbitrator that the respondent signed for and accepted the targets in the RBM contract and the further observation that she could then not turn around and say such a target was not achievable at the time of accountability.  The arbitrator further noted that the respondent had been employed for a long enough time to know what was achievable.

It is contended that by accepting that the respondent had not achieved her set targets and still proceeding to set aside the dismissal, the arbitrator erred.

I agree with the respondent that the appellant is using a very simplistic approach in looking at the award.  The arbitrator seems to be saying that indeed the respondent failed to meet her targets but she had reasonable grounds of being excused.  These grounds are that the respondent was not entirely responsible for the achievement of the targets as this depended on the efforts of the executives.  Further, the respondent was said not to have been given adequate time to perform before the charges were preferred against her.  Additionally the RBM targets singled out are said to be only 20% of the total score card and it therefore boggles the mind how she could be judged to have overally failed.

The arbitrator also considered that it was unrealistic to have expected the respondent to have terminated contracts within a month without any legal and financial repercussions.

Consequently though I have found partial merit in appeal ground 2, I overally do not find any merit in the entire appeal.

Accordingly, the appeal is dismissed with costs and the arbitral award is upheld.

Chinawa Law Chambers, appellant’s legal practitioners

Dondo & Partners, respondent’s legal practitioners