REPORTABLE        (2)

NATIONAL     ENGINEERING     WORKERS     UNION     (NEWU)

v

NTOMBIZODWA DUBE

SUPREME COURT OF ZIMBABWE

GWAUNZA JA, HLATSHWAYO JA & MAVANGIRA AJA

HARARE, MARCH 6, 2015 AND FEBRUARY 15, 2016

A. Muchadehama for the Appellant

A. Dururu for the Respondent

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:

1. wilful disobedience to a lawful order
2. insubordination
3. dragging the name of NEWU into disrepute
4. disregarding set standard rules with impunity
5. failure to adhere to set rules and standards as outlined by the organisation, and
6. 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:

1. the labour dispute emanated from sour working relations between the appellant and the respondent;
2. the Disciplinary Committee was improperly constituted and;
3. 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;

1. whether, on the facts of the matter, the disciplinary hearing was conducted by a Disciplinary Authority or by a Disciplinary Committee;
2. Whether the adjudicating authority was properly constituted, and
3. 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:

1. the lawfulness or otherwise, of the respondent’s dismissal by the appellant, and
2. 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