GWAUNZA JA: This is an appeal against the decision of the
Labour Court, Harare, which was handed down on 5 March 2010. The
background to this dispute is as follows. The respondent, who was employed by
the appellant as an Accounts Clerk and on 5 March 2007, was suspended from her employment
on the following charges:
(a) wilful disobedience to a lawful order.
(b) insubordination.
(c) dragging the name of NEWU into disrepute.
(d) disregarding set standard rules with
impunity. (e) failure to adhere to set rules and
standards as outlined by the organisation; and
(f) gross negligence.
A
disciplinary hearing was subsequently conducted following a letter addressed to
the respondent, dated 5 March 2007. The respondent was found guilty
of acts of misconduct falling under s 4 of the Labour (National
Employment Code of Conduct) Regulations, S.I. 15/2006, (“the National Code”), in particular:
-
an
act or omission inconsistent with the fulfilment of the express or implied
conditions of her contract of employment, wilful
disobedience to a lawful order, -
theft
or fraud, and -
gross
incompetence or inefficiency in the performance of her work.
She
was consequently dismissed from employment. The matter was referred to a labour
officer and eventually to an arbitrator.
The
arbitrator, whose sole term of reference was to determine whether or not the
Respondent was unfairly dismissed, found that:
(i) the labour dispute emanated from sour
working relations between the appellant and the respondent;
(ii) the Disciplinary Committee was improperly
constituted; and
(iii) the Disciplinary Committee failed to
consider any mitigating factors before imposing the penalty of dismissal.
The
arbitrator then ruled that the respondent was unfairly dismissed. He ordered
that she be reinstated to her former position with no loss of salary or
benefits, or alternatively, that she be paid damages in lieu of reinstatement. The
Labour Court dismissed the appellant's appeal against this decision and substituted
the arbitrator's award with an order that the appellant pay the respondent
damages calculated from the date of her dismissal to 15 September
2008. This was the date on which the respondent commenced employment with
another employer.
Disgruntled
with this decision, the appellant filed this appeal, which essentially raises three
issues, that is;
(i) whether, on the facts of the matter, the
disciplinary hearing was conducted by a Disciplinary Authority or by a
Disciplinary Committee;
(ii) Whether the adjudicating authority was properly
constituted, and
(iii) if so, whether or not the court a quo erred by proceeding to order that
the respondent be paid damages in the absence of any evidence before, and
without the parties addressing, the court on that issue.
NATURE AND COMPOSITION OF THE
ADJUDICATING AUTHORITY
The first and second issues relate to the nature and
correct composition of the disciplinary body before which the respondent appeared. The judge a quo found that although the disciplinary proceedings which
resulted in the respondent's dismissal were conducted in terms of the National Code,
this was done before an improperly constituted disciplinary committee. The
court relied for this finding on s 2 of the Code, which defines a 'disciplinary
committee' as follows:
“disciplinary committee” means a committee
set up at a workplace/establishment composed of employer and employees
representatives, to preside over and decide disciplinary cases and/or worker
grievances””
Having made this finding the court did not hear argument
on, nor consider, the merits of the dispute but proceeded to make a new award of
damages in favour of the respondent.
The appellant on the other hand argues that the
hearing was conducted by and before a Disciplinary Authority as defined in the
same section of the Code, as follows;
“disciplinary authority” means a person or
authority or such disciplinary committee dealing with disciplinary matters in
an establishment or at a workplace””
The court a quo
did not allude to the definition of 'disciplinary authority' as defined above,
and its possible implications on the applicability or otherwise of the
definition of
'disciplinary committee' that is contained in the same section of the Code.
My analysis of the National Code brings to the fore
two important issues:
Firstly, there are two definitions of 'disciplinary
committee' in the definitions section of the Code. There is one that I will
refer to as a “stand alone” definition, and the other that is subsumed under the
definition of 'disciplinary authority.' This means that a disciplinary
committee as so subsumed, is one of the 'bodies' that may constitute a
disciplinary authority, just like the 'person' or 'authority' mentioned in the
definition in question.
Secondly, while the two definitions are contained in the
definitions section of the statutory instrument, only 'disciplinary authority'
is referred to in the body of the instrument itself, and this is in s
6(1)(4)(b), which reads in the relevant
part as follows:
“(4) At a hearing in terms of subsection
(2), an employee shall have the right to—
(a)……….
(b) appear in person before the employer or
the employer's representative or disciplinary authority as the case may
be and be represented by either a fellow employee, worker's committee member,
trade union official/officer or a legal practitioner” (my emphasis)
The significance of this provision, as properly
pointed out by GOWORA JA in the recent
case of Crispen Mandizvidza v ZFC Limited
and Anor (SC 73/2015) is that it confers on a disciplinary authority powers
to conduct a disciplinary hearing at the workplace. By contrast, there is no
provision in the operative provisions of the Code that confers similar powers
on a disciplinary committee. In effect
and as already stated, such committee is not mentioned in the body of the Code.
Based on this anomaly, this Court correctly determined in the Mandizvidza case (supra) that there is no provision in the Code for an employee to
appear before a disciplinary committee unless such committee is constituted as
part of a disciplinary authority.
This notwithstanding, the question in my view may properly
be posed as to whether, in the absence of such a provision, (i.e. for
an employee to appear before a disciplinary committee), it is not feasible for
an employer to set up a disciplinary committee as separately defined in the
Code, to preside over and determine the matters listed in that definition? If
not, then a further question could be asked as to whether this was the
intention of the Legislature? Tempting though it may be to delve onto these
questions, I refrain from doing so for the simple reason that the questions
were neither posed nor argued in casu.
The dispute in this case relates to the nature of the disciplinary body that determined the
matter at hand. I find to be persuasive in this respect, the appellant's
submission that there is ample factual evidence before the court that points to
a clear intention by the appellant to set up a disciplinary authority as
opposed to a disciplinary committee (as separately defined). Firstly, the
letter to the respondent dated 5 March 2007, which outlined the misconduct
charges against her, read in part as follows:
“Furthermore, you
advised (sic) to appear before a Disciplinary
Authority on Friday 9 March at 12.00pm. You reserve the right to bring a
person of your choice to represent you”
Secondly,
the minutes of the proceedings duly conducted on 9 March 2007 are headed:
“NATIONAL ENGINEERING WORKERS UNION DISCIPLINARY
AUTHORITY MINUTES” (my emphasis)
Thirdly,
and in keeping with the requirement in the definition of 'disciplinary
authority', the respondent was advised to bring to the disciplinary hearing, 'a
person of your choice to represent you.' The minutes themselves record that its
chairman informed those who were present that the hearing was to be conducted
in terms of s 6(4) of the Code. This provision contains no direct reference to
a disciplinary committee. Finally the disciplinary hearing was attended by the appellant's
representatives on the one hand, and the respondent and her legal practitioner
on the other. This composition accords with what is provided for in s 6(4)(1)(b)
of the Code, cited above. Had the appellant wished to convene a disciplinary
committee as described in the stand-alone definition, it would in all
probability have said so, and ensured that the composition of such committee
met the requirements stipulated in the Code.
The
distinction between these two disciplinary authorities is highlighted in the Mandizvidza case (supra) where this Court stated as follows in relation to the
Code:
“It
seems to me that whereas the National Code has stipulated who should constitute
a disciplinary committee, the composition of a disciplinary authority has been
left to the discretion of the employer.
A
disciplinary authority on the other hand can mean a person or a committee
dealing with disciplinary matters at the workplace and its composition is not
dictated by the Code of Conduct. ….Clearly the appellant is obviously mixing
the two. The disciplinary authority can be constituted by a single person and it
can be extended to a disciplinary committee”.
Applied
to the circumstances of this case, it becomes evident that the appellant
consciously set out to constitute a disciplinary authority (as opposed to a
disciplinary committee), and properly exercised its discretion in choosing the
size of and specific people to sit on, such disciplinary authority. It is
pertinent to note in this respect that no limitation is imposed by the Code as
to the number of persons who should constitute a disciplinary authority. Nor is
the designation of such persons stipulated. It is all left to the employer's
discretion. In the proceedings in question and in compliance with s 6(1)(4)(b)
of the Code, the respondent was allowed to bring, and be represented by, her
legal practitioner.
It
is therefore my finding that the authority that conducted the disciplinary
proceedings against the respondent was a Disciplinary Authority as defined in
the Code, and that it was properly constituted.
Given all of the above, I find that the court a quo misdirected itself in finding as
it did, that:
“There was no representative from the
employees' side in the Committee. This was in contravention of the Code. In
view of this, I therefore do not find fault in the arbitrator's finding that the
disciplinary committee was improperly constituted.”
The court a quo
further rejected the argument of the appellant that the three employer's
representatives on the disciplinary authority attended the hearing as
prosecutors, finding in this respect, (and thereby further misdirecting itself),
as follows:
“Further assuming that the appellant's
submission was correct, the arbitrator's finding would still be correct, in
that (as per definition of Disciplinary Committee) the Disciplinary Committee,
comprising one person (i.e. Mr Garira) would be improperly constituted and
would equally suffer the same fate.”
Contrary to this finding, the definition of
'disciplinary authority' makes it clear that it can consist of one person.
2. Order
for payment of damages in the absence of evidence on that issue
Having determined, as I have done, that the
disciplinary hearing in casu was
conducted before a properly constituted disciplinary Authority, the question
arises as to the competency of the award of damages granted to the respondent
by the court a quo. In this respect I
make the following pertinent observations:(1) after upholding the arbitrator's finding
on the constitution of the disciplinary body that considered the charges
against the respondent, the Labour Court declared that the proceedings in
question were a nullity as “the irregularity was so gross as to vitiate the
proceedings”
(2) the court a quo also dismissed as no longer appropriate, the need to remit
the matter to the appellant for a hearing de
novo, since the respondent had already found employment elsewhere, and;
(3) the court, accordingly, varied the
arbitrator's award to the extent that the damages ordered by the arbitrator
would be reckoned from the date of the respondent's dismissal to the date she
found alternative employment.
The appellant takes issue with the substituted award
of damages and contends that the court a
quo erred by awarding damages in the absence of a specific finding, on the
merits, that the respondent was not guilty of any misconduct.
There is in my view merit in this contention. I hold that, having resolved not to remit the
matter to the appellant for a hearing de
novo, it behoved the Labour Court to hear evidence on the matter of the
respondent's culpability and damages, if any.
The record of the proceedings in the Labour Court shows that respondent's
counsel conceded that the arbitrator “erred” by quantifying the damages to be
paid to the respondent without hearing evidence on the subject from the
parties. The respondent's counsel then submitted as follows:
“But (that) does not validate award. Court can remit for arbitrator to hear
evidence or court can hear evidence on quantification” (sic)
Instead of doing just
that, the Labour Court simply set aside the arbitrator's award of damages and
fell into the same error as the arbitrator, by substituting the award in the
absence of any evidence having been led on the issue. That award, in addition to not having been
requested by the respondent, is without any discernible basis. It invokes the commonly used catch phrase:
“plucked from the air.” This Court has
expressed itself on numerous occasions on the undesirability of the court
proceeding in this manner. A case in
point, which authoritatively highlights this position, is Red Star Wholesaler v Mabika SC 52/05, where the court stated as follows:
“The Labour Court's approach was wrong and
grossly unreasonable. The court is not
entitled to pluck a figure off a hat because it is of the view that this figure
“meets the justice of the case”. Instead the court is required to hear evidence
as to how long it would reasonably take a person in a position of the dismissed
employee to find alternative employment.”
I find by parity of
reasoning, that this dictum, albeit
referring to a specific figure of damages, applies with equal force in casu. I might add that apart from
hearing evidence on how long it might have reasonably taken the respondent to
secure alternative employment, the Labour Court should also have heard evidence
on what steps, if any, the respondent had taken to mitigate her loss. A clear misdirection on the part of the
Labour Court is therefore evident.
Be that as it may, the
finding of this Court that the disciplinary proceedings in question were
conducted before a properly constituted disciplinary authority has the effect
of reversing the Labour Court's determination that the same proceedings were
null and void. This takes the matter
back to the situation where the disciplinary hearing against the respondent was
validly conducted. The arbitrator heard and granted the respondent's appeal
against the dismissal that followed this hearing. The court a quo having dismissed the appellant's
appeal against the arbitrator's award, the status that now obtains is one where
a determination still has to be made as to whether or not, on the merits
the respondent was lawfully dismissed and therefore entitled to damages. It
goes without saying that such damages would need to be properly proved. The
Labour Court, as indicated, did not consider the merits of the appeal that was
before it. Thus its substitution of the arbitrator's award of damages with one
of its own, was not premised upon a valid finding of wrongful dismissal.
In the result, I find
that the appeal has merit and ought to be granted. The matter will be remitted to the Labour
Court for a hearing of the appeal in this matter, on the merits. However, given
the fact that this remittal has been occasioned by a misdirection on the part
of the court a quo, I take the view
that it would not be in the interests of justice to visit an order of costs
upon the respondent.
Accordingly it is
ordered as follows:
1. The appeal is allowed with no order as to
costs;
2. The judgment of the Labour Court is hereby
set aside, and
3. The matter be and is hereby remitted to
the Labour Court for a determination on the merits relating to:
(i)the lawfulness or otherwise, of the respondent's
dismissal by the appellant, and
(ii)the damages, if any, to be paid to the
respondent.
HLATSHWAYO JA: I agree
MAVANGIRA AJA: I agree
Mbidzo, Muchadehama & Makoni, appellant's
legal practitioners
Dururu & Associates, respondent's legal practitioners
