The
appellant was employed by the respondent as a Senior Organising
Secretary with effect from 19 January to November 2009. On 12 October
2009, the respondent suspended him without pay following allegations
of misconduct.
Disciplinary
proceedings were instituted against the appellant commencing 30
October 2009. The proceedings were in terms of the National
Employment Code of Conduct Regulations, S.I.15 of 2006. The Hearing
Officer
was however unable to determine the matter one way or the other.
Consequently, on 3 November 2009 he referred the matter to the
employer for final determination saying that:
“…,
as the Hearing Officer, I am unable to make a ruling, as such, I
forward both submissions and my summary to the employer for his Final
decision. The accused employee, Mr Muparaganda, is therefore advised
to appear before the General Secretary, personally, or with a
representative of his choice at 1200hrs at GWUZ Head Office, Park
Town, Harare.”
Following
the Hearing Officer's failure to reach a verdict, the General
Secretary wrote to the appellant lifting the suspension without pay.
His letter to the appellant reads in part:
“Your
suspension without pay has been lifted and you can get your pay if
you go to the Bank
now.”
The
appellant subsequently appeared before the General Secretary for a
disciplinary hearing in terms of the Hearing Officer's reference.
The General Secretary delivered his verdict on 30 October 2009
dismissing the appellant from employment.
Aggrieved
by the dismissal, the appellant appealed to the Ministry which, in
turn, referred the matter for arbitration. The arbitrator made an
award nullifying the prior proceedings as unprocedural and fatally
defective. In particular, he held that the referral by the Hearing
Officer to the General Secretary for a final determination a nullity
for want of compliance with the rules saying:
“There
was no reason, whatever, for the Hearing Officer to have proceeded to
refer the matter to the General Secretary. The Hearing Officer was
obliged to make a decision.”
Having
set aside the proceedings before the Hearing Officer and the General
Secretary, the arbitrator proceeded to hear the matter de
novo.
In his verdict, the arbitrator found the appellant guilty of a
dismissible act of misconduct for late banking of Union dues in
contravention of section 17.17.1 of the respondent's Constitution.
He accordingly made the following award:
“1.
Claimant's dismissal was substantially unfair.
2.
Claimant's dismissal was procedurally unfair.
3.
I therefore order the claimant be paid his salary and benefits from
the date of suspension to the date of the award, 26 April 2013. Such
payment should be made within 14 days of receipt of this award.
4.
It is further ordered that claimant's contract of employment is
terminated with effect from 26 April 2013.
5.
If parties fail to agree on the calculations, they can approach the
arbitrator for quantification.”
Dissatisfied
by the arbitral award, the appellant appealed to the Labour Court.
The appeal raised only two (2) issues for determination:
1.
Whether the defendant was entitled to a salary from the date of
suspension when in fact his contract was terminated?
2.
Was the respondent's contract lawfully terminated?
The
appellant was partially successful. In respect of issue number one,
the court a
quo
held that the respondent was not entitled to his salary and benefits
because he had been placed on suspension without salary and benefits.
She reasoned that when the prior proceedings were nullified by the
arbitrator the respondent reverted to his status as an employee on
suspension without pay.
As
regards the second issue, the court a
quo
upheld and sustained the arbitrator's award to the effect that the
lawful date of dismissal was the 26th
of April 2013.
Despite
the fact that the appellant had been partially successful, the
learned judge in the court a
quo,
in error, proceeded to make an order as if the appellant had been
wholly unsuccessful. The order reads:
“The
appeal therefore partially succeeds and accordingly the following
order is made.
1.
The appeal be and is hereby upheld.
2.
The arbitral award dated 26 April 2013 is hereby upheld.
3.
No order as to costs.”
In
her ruling on the application for leave to appeal to this Court, the
learned judge properly acknowledged that she erred in making an order
upholding the entire appeal when the appellant had only been
partially successful.
On
the appeal before this Court, the only issue was whether the
respondent was entitled to his salary and benefits from the date of
suspension to the date of lawful dismissal, that is to say, from 12
October to 26 April 2013.
In
holding that the respondent was not entitled to his salary, the
learned judge reasoned that the nullification of the entire
proceedings by the arbitrator had also nullified the upliftment of
the respondent's suspension by the General Secretary. This is what
the learned judge had to say…,:
“However,
the proceedings uplifting the suspension, having culminated into an
unprocedurally unfair dismissal were set aside. To my mind,
everything that transpired was set aside - including the upliftment
of the suspension. When the arbitrator set aside the dismissal, the
respondent reverted to his position on suspension without salary and
benefits. See Bank
of Zimbabwe v Chikomwe and 211 Others
SC77-00. I do not agree with the respondent that he was entitled to
his salary and benefits as he was clearly on suspension without
salary and benefits. This ground of appeal has merit and therefore
succeeds.”
With
respect, it appears that the learned judge confused administrative
action with disciplinary proceedings done by the employer or
management. When the General Secretary lifted the suspension he was
exercising his administrative function and not disciplinary action
against the respondent. Disciplinary action was only instituted when
both the Hearing Officer and the General Secretary took
quasi-judicial
action against the respondent.
It
is the quasi-judicial
proceedings that were tainted with irregularity and not the
administrative action of lifting the suspension. The arbitrator could
not have nullified the upliftment of the suspension because this was
never an issue placed before him, and, in any case, it was not
tainted with irregularity. It is not in dispute that in terms of
section 10.2.2 of the appellant's Constitution, the General
Secretary has the discretionary power to suspend any employee of the
Union with or without pay.
The
General Secretary took quasi-judicial
action against the respondent.
There
having been no irregularity in the manner in which he uplifted the
suspension, the upliftment of the suspension was perfectly lawful and
binding. An employer who elects to pay an employee during the course
of disciplinary proceedings voluntarily assumes an obligation from
which he cannot unilaterally wriggle out without first re-suspending
the employee without pay.
Although
it was within the appellant's discretion to re-suspend the
respondent without pay, it did not exercise that option until the
contract was lawfully terminated on 26 April 2013. For that reason,
the judgment of the court a
quo,
upholding the arbitral award of 26 April 2013, cannot be faulted.
While
it is correct, as stated in the case of Bank
of Zimbabwe v Chikomwe and 211 Others
SC77-00, that when disciplinary proceedings are set aside for
irregularity, parties revert to the status
quo ante;
in
this
case,
the
principle was mis-applied because, at the time of the arbitral award,
the respondent's status had changed from that of an employee on
suspension without pay to that of an employee on suspension with pay.
Thus, the respondent could not have reverted to being an employee on
suspension without pay because that status no longer existed.
That
being the case the appeal can only fail. There being no reason for
departing from the general rule that costs follow the result.
It
is accordingly ordered that the appeal be and is hereby dismissed
with costs.
