GOWORA JA: The
respondent (“hereinafter referred to as Mudavanhu”) was employed by the
appellant as the head of its clothing factory division. As part of
his contract of employment, the respondent undertook to source for external
garment making contracts to supplement the workload in the factory, for which
he would receive a commission. On 11 July 2006, he was charged with
acts of misconduct as follows: persistent poor time-keeping; habitual
absenteeism without permission; failure to meet required standards of work
produced, (sic); failing to meet set targets in the production in the
factory (sic) and unilaterally increasing the number of employees in his
division without authority. Following a disciplinary hearing the respondent was
found guilty on all charges and was dismissed from employment with effect from
16 July 2006.
On 14 July 2008, alleging an unfair
dismissal, he filed a grievance with a labour officer, and failing conciliation
between the parties, the labour officer referred the matter to compulsory
arbitration. The arbitrator upheld the respondent's claim of unfair
dismissal and gave an award in his favour. Included in the arbitrator's award
were twelve former employees of the appellant. The appellant
unsuccessfully appealed to the Labour Court which upheld the award in respect
of the Mudavanhu and the other twelve. Aggrieved by the dismissal
of that appeal, the appellant has noted this appeal.
Before delving into the merits of
the appeal, it is appropriate to dispose of the dispute in relation to the
twelve others herein. It was contended on behalf of the appellant that
the Labour Court and the arbitrator in turn, made a determination with wide
implications in relation to the second to thirteenth respondents. The
contention was based on the undisputed fact that the only time the claims in
relation to the twelve others were alluded to was in the arbitrator's award.
The appellant argued that the arbitrator had placed an onus on the
employer to show that the departure of the other twelve from employment was
procedural.
A perusal of the record of
proceedings before the arbitrator points to the fact that the only evidence of
unfair dismissal placed before the learned arbitrator was in relation to
Mudavanhu. The only reference to the other twelve is to the effect that
they were made to resign after they refused to be moved from the factory to
work in the fields. None of the so called twelve others appeared before
the arbitrator. However, the record contains affidavits, attested to by
nine of those respondents, in which authorisation is granted to Mudavanhu to
speak on their behalf in the dispute with the appellant.
The arbitrator accepted the claim by
Mudavanhu that he was legally permitted to represent his fellow employees on a
right provided for in s 4 of the Labour (Settlements of Disputes) Regulations
S.I. 217 of 2003 (“the Regulations”). The arbitrator was pleased to find
that Mudavanhu was properly authorised and that, consequently, his former
workmates were properly before the learned arbitrator.
Clearly he erred. Firstly, s 4
of the Regulations allows a party to a matter before a labour officer to be
represented by a fellow employee, an official of a trade union, employer's
organisation or a legal practitioner. The Regulations do not define who a
labour officer is. A definition is found in the Labour Act, [Chapter
28:01] (“the Act”), where the labour officer is defined as “a labour
officer means a labour officer referred to in para (b) of subsection (1) of s
101.” Reference to s 101 reveals the following definition in relation to
labour officers:
“such number of labour officers and
employment officers as may be necessary for carrying out the functions assigned
to such officers in terms of this Act”.
There is a clear distinction between
a labour officer and an arbitrator and their respective functions under the
Act. Appearance before a labour officer cannot be read or stretched to
mean appearance before an arbitrator. It is my considered view that Mudavanhu
was not empowered to represent his former workmates at the hearing before the
arbitrator. The arbitrator erred at law in permitting him to do so.
In addition, at law, the arbitrator
was only competent to determine the dispute between such parties as had been
referred to him by the labour officer. Thus, he was confined to his terms
of reference. He had no mandate beyond that which had been referred to
him. It is not in dispute that the said respondents were not subjected to
disciplinary procedures. It is also not in dispute that the matter of the
first-mentioned of these respondents is in the arbitral process. The
second to thirteenth respondents were therefore not properly before him.
There was no claim for the arbitrator to adjudicate on and the award was
irregularly made. In addition, the arbitrator proceeded to award damages to the
twelve in the absence of a claim or evidence to substantiate the award of damages
as they never appeared in person. The award granted in their favour has
no legal basis.
As a consequence, the court a quo
misdirected itself in upholding, the finding by the arbitrator that the other
twelve respondents were properly before him. In addition the court should
have found that Mudavanhu could not legally represent them before the
arbitrator. Taking these irregularities into account, the court a quo
should have found that the award in respect of the other twelve had been
granted without lawful basis and ought therefore to have set it aside. The court a quo misdirected itself in upholding that part of the
award.
I turn now to the merits in relation
to Mudavanhu.
The main issue for determination before the court a quo
was concerned with the applicable Code of Conduct, whether it was the one under
the agriculture industry as contended by the appellant, or the clothing
industry as contended by the respondent. The learned President of the
Labour Court concluded that the issue of which industry the respondent was
employed in involved issues of fact, and, found accordingly that it was an
issue that could not properly be brought before the court on appeal.
Mudavanhu claimed before the
arbitrator that the employer was using the wrong Code of Conduct in the
calculation of his salary or wages. His contention was that in terms of
the contract of employment he should have been paid in accordance with the
salary rates applicable to the clothing industry as opposed to the agricultural
industry. His position therefore was that in considering his complaint
the arbitrator had to have recourse to the code of conduct for the clothing
sector.
On the substance of the dispute
before him, the first issue for consideration by the arbitrator was whether or
not the Disciplinary Committee was properly constituted, and, if it was,
whether or not the respondent had been given adequate notice of the hearing.
The arbitrator did not make a
specific finding as to which of the two sectors, agricultural or clothing, he
considered as being the correct one. However, in considering the alleged
procedural irregularities on the part of the Disciplinary Committee of the
appellant, he made reference to the Collective Bargaining Agreement:
Agricultural Industry S.I. 323 of 1993, which Code of Conduct governs the
agricultural sector. The award in favour of the respondent and his
co-employees was also made in terms of the provisions of S.I 323 of 1993.
The only logical conclusion is that the arbitrator found that the agricultural
sector code of conduct was the applicable one.
Consequently, I am of the view that
by making reference to the Code of Conduct of the agricultural sector, the
arbitrator in fact decided that the relationship between the parties fell to be
determined under that code of conduct.
In my view the court a quo
was correct in deciding that the issue of which sector the respondent and
Mudavanhu fell in was a question of fact. In order to resolve the
question as to which sector they belonged to the court would have had to hear
evidence. In any event, it was an issue that should not have been brought
on appeal as the arbitrator appeared to have resolved it in favour of the
appellant. The court a quo, correctly in my view, did not upset
that finding and went on to decide the matter on the same Code of
Conduct.
In view of the reliance by that
court on the Collective Bargaining Agreement: Agricultural Industry, S.I. 323
of 1993, it is found that the court a quo decided that S.I. 323 of 1993
was the relevant instrument. Undoubtedly the court a quo was correct in
proceeding in the manner it
did.
The arbitrator found that the
appellant had given the respondent less than two days' notice of the hearing
contrary to the requirements of S.I. 323 of 1993. It was the finding of
the arbitrator that the respondent had been given less than the required notice
in complete disregard of the notice period required under the Code of conduct.
He had also found that the claim had not prescribed. Having found that the
dismissal of Mudavanhu was unlawful an award for his re-instatement was issued.
In the alternative if reinstatement was no longer possible the appellant
was to pay damages in United States dollars.
The Labour Court found that;
“the arbitrator made a finding that
the employer had not followed the court procedures I therefore find that the
arbitrator did not err in his finding.”
The court a quo did not set
out the basis upon which it found that the arbitrator had made the correct
decision. Further to this, the court did not set out the facts upon
which it relied in coming to the conclusion that the arbitrator was correct in
finding that the Disciplinary Committee had not followed the correct procedure.
It would have been in order for the court a quo to find that
the evidence of Mudavanhu that he had not been given adequate notice prior to
the hearing was confirmed by the record. The court did not do this. It is
not appropriate for an appeal court to confirm that there was no error on the
part of a lower tribunal without setting out the basis for its finding of
correctness on the part of the lower tribunal.
A perusal of the record however
reveals that the finding by the arbitrator is not borne out by the facts.
The dispute between the respondent and the appellant's Managing Director
occurred on 7 July 2006 and it was the basis of the complaint against
Mudavanhu. That altercation is given as one of the reasons for the termination
of his employment contract. The disciplinary hearing was conducted on 11 July
2006. The allegation that he was given inadequate notice is not
established on the record.
As for the contention that the
Disciplinary Committee was not properly constituted, there was no indication
before the arbitrator or indeed the Labour Court as to how it was
inappropriately constituted. The arbitrator observed that the
Disciplinary Committee did not have equal representatives. In the letter of
complaint written on behalf of the respondent and his co-respondents, Mudavanhu
is referred to as a “Factory Manager”. The minutes of the disciplinary hearing
show that apart from two witnesses, there were also present, the Human
Resources Manager and a Head of Department, the exact nature of which is not
specified.
It seems to me that in making a finding
that the Disciplinary Committee had been improperly constituted the Labour
Court merely paid lip service to the findings of the arbitrator. By its
failure to interrogate the basis upon which the arbitrator concluded that the
committee had been improperly constituted the Labour Court grossly misdirected
itself.
Turning to the award of damages, it
should have been obvious to the learned President in the court a quo
that there was no evidence of damages led before the arbitrator. It is
well settled that in the assessment of damages for unlawful dismissal, an
arbitrator or a court is not entitled to pluck figures from the air, and that
any award of damages must be premised on evidence of actual earnings by the
dismissed employee. See Redstar Wholesalers v Mabika SC
52/05.
In the case in point not only was
there no evidence of any earnings in Zimbabwe dollars, there was no attempt to
justify the award in United States dollars. Thus, there was no
enquiry on the issue of quantum. In Redstar Wholesalers v Mabika,(supra)
this Court reiterated the settled principle that in assessing damages flowing
from the loss of employment, a court is not entitled to simply pluck figures
from thin air and make them the basis of an award. Instead, the court is
required to hear evidence before assessing such damages.
Further to the above, an award of
damages for thirty six months was issued. It is trite that when
considering the length of time a dismissed employer is likely to take before
finding alternative employment, the court must hear evidence from the affected
employee. It is not in dispute that in this case no evidence was adduced
as to the length of time Mudavanhu would be expected to reasonably take to find
employment. An employee who has been dismissed is legally obliged to
mitigate his damages by finding alternative employment at the earliest
opportunity. The arbitrator failed to take this principle into account in
his assessment of the damages claimed by the respondent. The Labour Court
in turn misdirected itself by failing to give effect to the stated principle
and confirmed the award despite the error on the part of the arbitrator.
See Nyaguse v Mkwasini Estates (Pvt) Ltd 2000 (1) ZLR 571 (S).
Mudavanhu and his co-respondents
were awarded back pay in United States dollars. It is settled that an
employee can only be compensated by an amount which should be calculated on the
rate applicable at the time of dismissal.
In this case, it is obvious that
there was a complete disregard by the arbitrator of established law and
principles which the Labour Court failed to take note of in considering the
appeal before it. The failure to take cognisance of legal principles and
apply them to the matter before it constituted a gross misdirection on the part
of the court a quo. The appeal has merit and must succeed.
In the result the court makes the
following order.
It is ordered that:
1. The appeal is allowed with costs.
2. The order of the court a quo
is set aside and is substituted with the following:
1. The appeal is allowed with costs.
2. The arbitrator's award is set aside.
3. The decision of the disciplinary
committee dismissing the respondent from employment is upheld.
MALABA
DCJ: I agree
HLATSHWAYO
JA: I agree
Gill, Godlonton & Gerrans, appellant's legal practitioners
Respondent in Person
