GOWORA JA: This
is an appeal against the judgment of the Labour Court upholding an appeal
against an arbitral award.
The background to the appeal
is as follows.
The appellant was employed by the University of Zimbabwe (“the
University”) as a full time lecturer in the department of Rural and Urban
Planning. It is common cause that sometime in October 2008 the appellant
stopped reporting for duty. In November 2008 he was removed from the pay sheet
and his salary was stopped. In December of the same year a firm of legal
practitioners purporting to act on his behalf addressed a letter to the
respondent in which they challenged the latter's intention to evict the
appellant's family from the accommodation afforded to the appellant by the
respondent. Ultimately the appellant's family was evicted. An invitation
was sent to the appellant to physically avail himself to the respondent's
offices by 6 February 2009. The appellant did not attend as requested.
In August 2009 the appellant addressed a letter to the respondent which was in
the following terms:
“This memo serves to inform you that
following the official reopening of the University by the Vice-Chancellor,
after the long temporary closure, I am here to resume my normal teaching
duties. I, however, apologise for missing the opening sessions due to some
logistical problems. Nonetheless, I promise to make up for the lost hours as
soon as you give me my teaching load for the semester.”
The appellant was however barred
from performing any duties and was denied access to his office. On 23 September
2009 the appellant wrote to the respondent alleging unfair labour practice and
demanding an end to the alleged practices. On 14 October 2009 the appellant
advised the Ministry of Labour of the alleged unfair labour practices and
requested conciliation. On 15 October 2009 the respondent laid charges of
misconduct against the appellant resulting in his dismissal.
When conciliation proved fruitless
the matter was referred to an arbitrator for compulsory arbitration. The
arbitrator found that the respondent had committed unfair labour practices in
ejecting the appellant from its flat and by stopping his salary and benefits
without having formally charged him with misconduct. It had also failed to
honour its duty to the employee to provide him with work when it denied him
access to his office. The arbitrator also found that there was no evidence
produced by the respondent to show that the appellant had obtained employment
elsewhere. Deciding that the appellant had been dismissed constructively,
the arbitrator issued an award in favour of the appellant. In the award the
arbitrator ordered that the appellant be reinstated to his employment without
loss of salary and benefits, or in the alternative that he be paid damages in
lieu of reinstatement.
Dissatisfied with the award the
respondent lodged an appeal with the Labour Court. The learned President of the
Labour Court upheld the appeal and set aside the award by the arbitrator. The
appellant has appealed to this Court against that decision.
The
grounds of appeal are as follows:
1. That the court a quo erred in making a
determination on the substantive correctness of the Disciplinary
proceedings when that was never an issue before it.
2. That the court a quo also erred in essentially
coming to the conclusion that it was proper for respondent to dismiss the
appellant without affording him an opportunity to be heard and so erred in
giving effect to the cessation of benefits in the absence of a hearing and
in breach of the basic tenets of natural justice.
3. The court a quo further erred in not declaring
void disciplinary proceedings that had been put in motion notwithstanding
a complaint had been properly lodged with a labour officer and had so been
put in motion in order to negate that complaint.
4. The court a quo also erred in dealing with and
interfering with issues of fact when such issues are not cognizable before
it.
Ms Mahere who appeared for
the appellant submitted that the appellant had been unfairly dismissed and
argued further that the dismissal had been effected contrary to s 12B of the
Labour Act [Cap. 20:28],(“the Act”).
It is common cause that the
appellant did not report for duty for the period October 2008 to the middle of
August 2009. The appellant contends that the University had been shut down and
was not conducting business. The respondent on the other hand contends that the
normal business of the university was not suspended, and that although students
were not in attendance all staff members were required to report for duty as
normal.
Section 12B of the Act
provides that an employee has a right not to be unfairly dismissed from
employment. It further provides that a dismissal shall be unfair unless it has
been effected in terms of a registered employment code, or if such is not
available, the Labour National Employment Code of Conduct S.I.15/2006.
The onus is on the employer to show
that the dismissal of an employee was effected in terms of a registered
employment code. The respondent has not denied that it removed the appellant
from the payroll and also caused the eviction of his family from the
residential premises that had been availed to the appellant as part of his
employment benefits. He was also barred from performing any of the duties of a
lecturer when he made himself available in August 2009. He was denied access to
the office that he had been using prior to November 2008. He was not suspended
or subjected to disciplinary procedures before these measures were taken
against him. He also wrote letters to the respondent complaining about the
alleged unfair labour practices and demanding that he be accorded his
employment rights and benefits to no avail. The appellant then complained to a
labour officer who referred the matter to an arbitrator for conciliation.
The arbitrator made a finding of fact that the University was
closed during the period in question, i.e. from October 2008 to August 2009. It
is contended on behalf of the appellant that the learned President in the court
a quo suggests no justifiable basis for impugning the arbitrator's
finding on fact. It is evident that the court a quo took a different
view to that of the arbitrator on the alleged absence of the respondent from
duty during the relevant period. The court a quo substituted its own
discretion in place of the arbitrator and proceeded to make findings of fact
contrary to those found established by the arbitrator on the papers before the
court. The court a quo could only have upset the findings of fact by the
arbitrator if the exercise of his discretion by the arbitrator was irrational
on the evidence placed before him. As was stated by KORSAH JA in Hama v National
Railways of Zimbabwe 1996 (1) ZLR 664 at p 670:
“The general rule of law as regards
irrationality is that an appellate court will not interfere with a decision of
a trial court based purely on a finding of fact unless it is satisfied that,
having regard to the evidence placed before the trial court, the finding
complained of is so outrageous in its defiance of logic that no sensible person
who had applied his mind to the question to be decided could have arrived at
such a conclusion: Bitcon v Rosenberg 1936 AD 380 at 395-7; Secretary of
State for Education & Science v Metropolitan Borough of Tameside
[1976] 3 All ER 665 (CA) at 671E-H; CCSU v Min for the Civil Service
supra at 915A-B; PF-ZAPU v Min of Justice (2) 1985 (1) ZLR 305 (S) at
326E-G”.
The learned President found that the
department in which the appellant had been employed had been operational and
that the respondent had absented himself from his employment from October 2008
to August 2009 and that the respondent had been justified in stopping his
benefits. The court also made a finding that on the evidence presented before
the arbitrator the appellant could not claim constructive dismissal because he
had not rendered services to the respondent which entitled the latter to cease
payment of the salary and benefits.
An appeal to the Labour Court is on
a point of law. The court a quo did not find that there was any
misdirection on the part of the arbitrator and consequently the court fell into
error in reversing the award on the basis of findings of fact.
The Labour Court was also criticised
before us for determining an issue that was not before it as an appeal. The
arbitrator did not delve into the disciplinary proceedings instituted by the
respondent against the appellant. The record reflects that the arbitrator
commented on those proceedings in passing but made no finding one way or other.
It was therefore not an issue before the Labour Court for determination on
appeal. Despite this, the court had this to say:
“As regards the second ground of
appeal, i.e. whether the employer could discipline the respondent when the
respondent had referred that dispute to a labour officer for conciliation and
possible arbitration.
The court is of the view that the
arbitrator erred in holding that the employer could not. An employer is
entitled in law to discipline any of its employees in terms of the governing
laws whenever it is alleged that the employee has committed an act of
misconduct. The reporting of the dispute to a labour officer does not take away
the employer's right to discipline its employees. That is a settled principle
of our law.”
Although the court was correct
in its statement on the law, in my view it misdirected itself by determining an
issue which was never before the arbitrator.
The appellant argues that the
court further misdirected itself by finding that the respondent had a right to
stop paying the appellant his salary and benefits in circumstances amounting to
a constructive dismissal. Section 12B of the Labour Act [Cap. 28:01],
the “Act” provides:
“12B Dismissal
(1) Every employee has the right not
to be unfairly dismissed.
(2) An employee is unfairly
dismissed —
(a) if, subject to subsection
(3), the employer fails to show that he dismissed the employee in terms of
anemployment code; or
(b) in the absence of an
employment code, the employer shall comply with the model code made in terms of
section 101(9).”
The arbitrator had found that the
dismissal of the appellant had been effected in contravention of s 12B of the
Act. The respondent does not have a registered employment code and perforce any
disciplinary proceedings in relation to its employees would have to be
conducted in terms of the Labour National Employment Code of Conduct, S.I.
15/2006. Section 5 of the National Code of Conduct prohibits any dismissal that
is effected in defiance of the provisions of s 12B. By dismissing the
appellant without first conducting a disciplinary hearing as required in terms
of ss 5 and 6 of the National Code the respondent deprived the appellant of his
right to be heard in breach of the audi alteram partem principle. This
is an elementary notion of fairness and justice which is universally accepted
as being the norm by which parties should govern their relationship with each
other. A failure to adhere to the tenets of the principle results in prejudice
to the party against whom the breach has been perpetrated.
In Taylor v Minister of
Education & Anor 1996 (2) ZLR 772 GUBBAY CJ stated at p 780A-C:
“The maxim audi alteram partem
expresses a flexible tenet of natural justice that has resounded through the
ages. One is reminded that even God sought and heard Adam's defence before
banishing him from the Garden of Eden. Yet the proper limits of the principle
are not precisely defined. In traditional formulation it prescribes that when a
statute empowers a public official or body to give a decision which
prejudicially affects a person in his liberty or property or existing rights,
he or she has a right to be heard in the ordinary course before the decision is
taken. See Metsola v Chairman, Public Service Commission & Anor 1989 (3)
ZLR 147 (S) at 333B-F; compare on the facts, Laubscher v Native Commissioner,
Piet Retief 1958 (1) SA 546 at 551F-G, per SCHREINER JA.”
The Labour National Code of
Conduct sets out in detail procedural steps that have to be taken before a
person is dismissed from his or her employment. It is common cause that before
the appellant had his benefits and salary unilaterally withdrawn by the
respondent he was not afforded an opportunity to be heard. In effect he was
dismissed without any disciplinary proceedings having been conducted. This is
borne out by the fact that the respondent then proceeded to hold disciplinary
proceedings in November 2009.
Before us Ms Mahere
sought to impugn the subsequent proceedings as to their fairness and legality.
This court, like the Labour Court in the previous proceedings, is not seized
with the disciplinary proceedings instituted by the respondent and cannot
comment on the propriety of the same.
It was contended by Mr Uriri
that the failure by the appellant to attend at his place of employment during
the period in question amounted to a repudiation of his contract of employment.
It was contended further that the appellant was amongst a group of employees of
the respondent which had found employment in Ethiopia during the period in
question. These averments were placed before the arbitrator who found that
although the respondent raised these issues it had failed to substantiate them.
Mr Uriri did not invite us to find that the findings by the arbitrator
that the department had been closed during the requisite period amounted to a
misdirection inviting intervention by this court or the Labour Court. Likewise
there was no suggestion that the evidence of such employment in Ethiopia had
been established before the arbitrator.
In the circumstances it is evident
that the court a quo misdirected itself in setting aside the award by
the arbitrator. The appeal must therefore succeed.
In the result, I make the following
order:
The judgment of the court a quo
is set aside and is substituted with the following:
“The
appeal is dismissed with costs.”
GARWE JA: I agree
OMERJEE
AJA: I
agree
Chadyiwa & Associates, appellant's legal practitioners
Ziumbe & Mtambanengwe, respondent's legal practitioners
