IN THE MATTER OF THE ARBITRATION GNW 15/11

REF: CASE: 0201/11

Between

T. WICKS CLAIMANT

And

COTTON COMPANY OF ZIMBABWE RESPONDENT

Before

Hon. George Nasho Wilson ARBITRATOR

Box CY 889,
Suite 309-311, 3rd Floor PSA House,
9 Livingstone Avenue/ 3rd Street, HARARE
CAUSEWAY

0712 806 199 /0912 605 478 /0913 941 442 Contact Number
04 701 123/707 208 Tel/Fax

nashowilson@yahoo.com OR tomaloconsult@live.com Email Addresses

For the Appellant Mr G Makings (Legal Counsel)

For the Respondent Mr. SV Hwacha & Mr Maunga (Legal Counsels)
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ARBITRAL AWARD
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BACKGROUND

This matter was referred to me for arbitration by a labour officer one, B Taruvinga following the
issuance of a certificate of no settlement on the 18 th February 2011 in terms of section 98(3) of the
Labour Act (Chapter 28:01) (hereinafter styled as ‘the Act’).The dispute between the patties
concerns the alleged unfair dismissal of the Claimant by the Respondent.

From the onset, I would like to state that I was not happy by the continuous failure by the
Respondent to fail to meet deadlines and also the persistence postponement as clearly elaborated
by the Appellant from the conciliation stage throughout the arbitration proceedings. As a result, the
Respondent at one time I ordered that he meets the wasted costs in this arbitration. The final oral
hearing was held on the 1st of September 2011 at Suite 608, Pockets Building, HARARE.

TERMS OF RERERENCE/ISSUES IN DISPUTE

In terms of the referral to arbitration form, issued by the conciliator the terms of reference/issues in
dispute to be determined upon are as follows:

(i) To determine whether or not the contract of employment was unfairly

terminated;
(ii) The appropriate remedy.

Appellant in this matter is T WICKS who was employed by Cotton Company of Zimbabwe (Cottco)
as its Director. Appellant was charged of committing an act of misconduct in terms the Labour
(National Employment Code of Conduct) Regulations Statutory Instrument 15 of 2006 (hereinafter
called the Code). Appellant is said to have breached section 4(a) of the Code by committing an act
of conduct or omission inconsistent with the fulfilment of the express or implied conditions of its
contract.

Appellant was suspended from employment by Cottco with immediate effect on the 2 nd of
December 2010. On 7th of December 2010 Appellant was invited to attend disciplinary hearing set

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for the 9th December 2010 at 1000 hours. Appellant was further advised that it can be represented
by a legal practitioner during the hearing or a person of its own choice and further that if applicant
defaults at the hearing the Disciplinary Authority will proceed to determine its case in its absence.

A hearing was held on the 9 th December 2010. The minutes of the hearing shows that Appellant
was a self actor during the hearing and not represented. Appellant was agreeable to the hearing
authority that it appeared before. The minutes further shows that Appellant was advised of the
reasons of the hearing and its procedure explained to the Appellant. The determination of the same
hearing was issued on the 5 th of January 2011wherein appellant was found guilty and dismissed
from employment.

Appellant appealed against the determination. Appellant’s grounds of appeal are divided into two
namely:
1) Appeal on the basis of procedural irregularities, and
2) Appeal on the merits of the case.

PROCEDURAL IRREGULARITIES
Appellant alleges that the record of proceedings are clear that the disciplinary hearing was held
before a disciplinary committee and that in terms of the Code a disciplinary committee is made up
of employer and employee representatives. Appellant further stated that the disciplinary committee
in its case was made up of employer representatives only and that it was not given an opportunity
to appoint anyone to represent its interests.

Appellant further raised the objection that it was unaware of its rights regarding representation.
Appellant thus challenges Respondent to show that the disciplinary hearing panel had its
representatives other than the Respondents.

Appellant further submitted that the letter dated 7 th December 2010 advising it to appear before a
disciplinary panel did not indicate that it had “a right to nominate persons to the disciplinary
committee”. Appellant stated that the practice generally is that in disciplinary matters, cases are

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heard either by a single hearing officer appointed by the employer or by committees where there
are equal appointees from each side.

Appellant further argued that in terms of the Code, three (3) working days notice of a hearing were
required and that the notice in this case was given on the 7 th of December, the three working days
would have been the 8th, 9th & 10th of December 2010. The hearing could only have lawfully taken
place on Monday 13th of December 2011. Appellant argued that the hearing was only fast tracked
so that Respondent could proceed without affording Appellant to fully comprehend the seriousness
of what was happening and to fully exercise its rights in this regard.

Appellant further submitted that in terms of section 6(2) of the code a hearing should be completed
within 14 days of serving an employee with the suspension letter. The determination in this matter
was issued on the 5th of January 2011; appellant thus argues that it was not in accordance with the
code.

Appellant went on to allege that the proceedings were fatally defective in that the determination
letter did not provide reasons for terminating its employment.

It was argued that the Complainant in this matter was the Managing Director and that two persons
charged with determining this matter were its subordinates. Appellant also makes reference to
allegations of bias against the Managing Director who it says influenced the outcome of the
hearing.

MERITS
Appellant in addressing the merits of this matter argued that there was no evidence in respect of
the charges to prove that the procurement of the generator for Gokwe was as a result of failing to
follow proper and laid down procedures. That there was no evidence to the effect that the
installation of the generator was as a result of not following proper and laid down procedures.
Appellant further stated that the above elements ought to have been met and to further show that
the failure to follow procedures directly caused the substantial loss to the Respondent.

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Appellant states point 5.1 in the minutes of the hearing addresses the Appellant as the Director
responsible for the purchasing and installation of the generator at Gokwe. No evidence was led to
support this bold assertion says the Appellant. Appellant continues further and stated that the
procurement of a generator was a function of the procurement executive and the finance
department neither of whom could be instructed what to do by the Appellant.

Appellant further made reference to the audit report which it says was drawn up to suit a
predetermined outcome and to blame it.

Appellant also submitted that the assertion that installation was separated by supply which
separation infringed the warranty conditions is backed with no evidence at all. Appellant argued
that it made a value judgement considering that JVS had an undisputed long term relationship with
the Respondent having done work with JVS over a number of years. Appellant stated further that
the quotation given by Powermec was higher than that given by JVS and as such the value
judgement made by the Appellant was competitive. As a result the decision to give the installation
to JVS did not result in substantial loss to the respondent.

Appellant further argued that the generator should have had an extensive service of 250 hours
which was not done by Powermec; as a result the generator went down. Appellant submitted that
evidence to this effect was available and attached the same to its grounds of appeal. Appellant
further sought that by mutual agreement the issue regarding the circumstances surrounding what
happened to installation, commissioning and the running of the generator with all its faults be made
available to an independent expert who will be tasked to adjudge if the damage to the generator
was caused by installation problems. Appellant attached further a copy of the audit report and a
report of its shortcomings which shortcomings made by the appellant. Appellant thus submits that
due to the extensive and material flaws in procedure and significant shortcomings in the
substantive grounds, appellant prays for reinstatement or to be disengaged on the basis of an
appropriate package.

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In response to Appellant grounds of appeal, Respondent defended its case as follows; that the
minutes of the hearing record in greater detail evidence at the hearing which confirms Appellant’s
conduct was not consistent with the expectations of his contract. That the minutes confirm that
Appellant admitted not having followed the correct procedures.

Respondent submitted further that Appellant does not have a case on the merits and it is for this
reason why Appellant concentrated its efforts mainly on technicalities. Respondent thus urged the
Arbitrator to adopt the established practice and approach that it is undesirable to determine labour
matters on the basis of technicalities.

Respondent further submitted that Appellant is attempting to make a fresh hearing of the appeal
and that there is no basis for doing so. Respondent further objected to the introduction of evidence
which was not before the hearing panel which heard the matter.

Respondent argued that the authority which heard the matter was lawfully constituted and that
appellant confirmed that he was happy with it. That there was also no objection to the date of
hearing and or any other suggestion that the hearing was unfair as is now alleged by the Appellant.

In its closing submissions Claimant submitted maintained its position that procedural requirements
were not followed by the Respondent and that the effect of such is that the determination should
not be upheld. Claimant thus cited the cases of OK Bazaars v Soko SC 108/2000 and Gova v
Zimasco HB 1/98 to support its submission.

On admitting evidence which was not heard during the hearing Claimant argued that the Arbitrator
has the same powers as that of the labour court and that the Arbitrator has the powers to call for a
hearing or to decide the matter on the basis of the evidence available.

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ANALYSIS OF THE SUBMISSIONS AND EVIDENCE.

The code provides for the definition of a disciplinary authority and a disciplinary committee. A
disciplinary committee is defined as a “committee set up at the workplace/establishment composed
of employer and employees representatives to preside over and decide over disciplinary cases and
or worker grievances”. A disciplinary authority is defined as “a person or authority or such
disciplinary committee dealing with disciplinary matters in an establishment or at a workplace. ” The
definition of a disciplinary committee therefore clearly provides for how such a committee is
composed as well as its functions at a workplace or establishment. It is only a disciplinary authority
whose composition was not prescribed by the legislator. The Act also does not give the
composition of a disciplinary authority. I am of the opinion that the legislature in creating a
disciplinary authority left it to the employer to decide on the composition of disciplinary authorities.

Appellant was notified by the Respondent that it was to appear before a disciplinary authority and
further that if appellant defaults the authority was going to proceed and decide over its case. When
it appeared for a hearing Appellant was therefore appearing before a disciplinary authority and not
a disciplinary committee as is trying to be suggested by the Appellant. The submission by the
Appellant therefore that it ought to have appointed person/persons representing its interests does
not stand.

In creating a disciplinary authority the legislator had in mind persons in the position of the
Appellant, who on one hand they are employees of the employer in terms of contract of
employment and on the other they belong to that faction which represents the interests of the
employer e.g. in workers committee or works councils. However such persons since they are also
employees of the Respondent are also subject to disciplinary measures if they are caught on the
wrong side of the law. It is in this regard that the legislature chose to create a disciplinary authority
which is capable of disciplining such persons as managerial employees. The composition and
creation of such an authority was entrusted with the employer who has the discretion to choose

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who should sit as the authority in disciplining managerial employees. Appellant had therefore no
right to appoint persons to be part of the disciplinary authority.
I am sure that this finding in turn affects the second preliminary issue raised by the Appellant that it
(Appellant) was not happy with the disciplinary authority. It appears to be true that this submission
is an afterthought by the Appellant which is influenced by the Appellant’s beliefs that it had a right
or choice to appoint some representatives to be part of the disciplinary authority or that it appeared
before a disciplinary committee.

Appellant was suspended on the 2 nd December 2010 and was advised of the charges against it on
the 7th December 2010. Appellant was effectively dismissed from employment on the 5 th January
2011. From the documents filed of record it is true that Respondent was not in compliance with the
disciplinary procedures provided for in the Code. The question which therefore strains the mind is
that on one side our Superior Courts have shown their disfavour of deciding labour matters on the
basis of technicalities. See Dalny Mine v Banda 1999 (1) ZLR 221. On the one hand there are also
cases where disciplinary matters have been determined on the basis of failure to comply with
procedural requirements especially in situations where an employee is prejudiced by such failure to
comply with the procedural requirements. In the case of Air Zimbabwe (PVT) LTD v Chiku Mnensa
& Anor SC 89/04, the Chief Justice of the country after finding that there were procedural
irregularities stated that;
“A person guilty of misconduct should not escape the consequences of his misdeads
simply because of a failure to conduct disciplinary proceedings by another employee. He
should escape such consequences because he is innocent.”
Having perused the disciplinary proceedings it is justifiable that the matter can be resolved on the
practice of our courts that is undesirable to reduce disciplinary proceedings on technicalities as
stated in the above cases.

Appellant was accused of breaching section 4 of the code by committing an act of conduct or
omission inconsistent with the fulfillment of the express or implied conditions of its contract.
Appellant is alleged for having failed to follow proper and laid down procedures in procurement and
installation of Gokwe Business Unit Generator and through this failure, it was alleged that the
company lost a substantial amount of money.

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Appellant although it pleaded not guilty during the hearing, it admitted that procedures were not
followed and argued that the company did not suffer prejudice. Appellant further admitted that if
procedures had been followed the company could not have got in such a situation. Appellant
admitted to having overlooked a number of issues because it had a long working relationship with
JVC. Witnesses were also called and confirmed that Appellant did not follow procedures.

However in its grounds of appeal, Appellant tries to make a u-turn by alleging that there was no
evidence to back up the charges and allegations yet Appellant failed to do so during the hearing.
Appellant having worked for the Respondent for a long time and being a senior member of the
company is in a position to know of the procedures relating to purchasing and supply of gadgets. If
indeed there were bold allegations why then Appellant admitted to them. The argument therefore
that the charges are not backed up by evidence should therefore not stand.

Appellant further tried to introduce new evidence which did not form part of the record .Evidence in
the form of the Audit Report and its shortcoming which shortcomings Appellant said it prepared
were attached to the Appellant’s submissions. Appellant further sought to attach evidence which it
says shows that the generator should have had an extensive service and that an independent
adjudicator be called to determine upon the cause of the fault on the generator. By seeking to allow
this evidence Appellant is trying to bolster its case on appeal having failed to do so during the
disciplinary hearing. It is my view that the audit report must not be allowed at this stage for the
simple reason that it was not used during the disciplinary hearing. In any case the Auditor was
called as one of the witnesses and Appellant had the chance to discredit the auditor during cross
examination. Appellant is thus trying to do what it failed to do during the hearing by attempting to
allow the audit report and its shortcomings to be part of the record. It is improper to do so.

In any case the charges which Appellant faced were very clear .That it failed to follow laid down
procedures in the purchasing and installation of the generator. The charges which Appellant itself
admitted to. As a result of its failure to follow the laid procedures Appellant’s action was
inconsistent with the express or implied conditions of its contract of employment. Appellant cannot
therefore be allowed to reprobate and approbate its actions.

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Having said so it is my contention that the decision of the disciplinary authority to dismiss the
appellant must stand.
AWARD
WHEREUPON, after a close examination of the documents filed of record and submissions of both
parties it is ORDERED THAT:
(i) The appeal is be and hereby dismissed

(i) Both parties to share equally the costs of this Arbitration.

Dated at HARARE this … Day of September 2011

HON. GEORGE NASHO WILSON

ARBITRATOR
To: Claimant – Mr. T. Wicks, C/o Mr. George Makings,
miras@zol.co.zw
HARARE

To: Respondent – The Cotton Company of Zimbabwe,

C/o Maunga Maanda & Associates,
11th Floor, Club Chambers, Cnr. N. Mandela/ 3rd Street,
HARARE Attention: Mr. C. Maunga

And To: The Provincial Labour Officer,

Department of Labour, Makombe Building,
HARARE

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