Dismissal of workers by employers has always been questioned whether it would have been procedurally fair and correct, leading to cases being referred to compulsory arbitration for determination.

Some cases also need determination on the merits of the worker’s alleged acts of misconduct and the penalty thereof. Some of the records do not contain enough evidence of what transpired to enable the court to make a decision on the merits and that on procedure was also not clear as to whether the procedure was correct.
Zimta Co-operative Credit Union employed Shadreck Chiduwa, was a custodian of blank cheques that were pre-signed. Two cheque leaves were fraudulently removed and cashed in. A third cheque was also removed but payment was stopped before it was cashed in.

One James Manzi, who was also employed by Zimta, discovered these fraudulent acts.
The person who cashed the cheques, George Chinembiri, implicated Chiduwa, and he himself pleaded guilty to the charges in the criminal court.
Using the documentary evidence available, Zimta summarily dismissed Chiduwa from employment.

This was in terms of Section 2 (d) of Statutory Instrument 130/03. This dismissal was on the papers and without any hearing, meaning summary dismissal.
The documentary evidence included a statement by James Manzi and Chiduwa’s response to the charge.
The case was taken to an Arbitrator who found that “the dismissal was procedurally unfair, but was substantively fair as the merits support it.” The Arbitrator said that Chiduwa was supposed to be heard and the charges were supposed to specify the exact paragraphs of Section 12B of the Act that were breached. This would enable Chiduwa to be in a position to prepare his defence. As for the merits, the Arbitrator said there was “overwhelming irrefutable evidence establishing his guilty.”

Having made these findings, the Arbitrator confirmed the dismissal, but made an award for Chiduwa in terms of Section 13 of the Labour Act. The award read: “Shadreck Chiduwa’s dismissal is confirmed, but with effect from May 9, 2007 Zimta is to pay cash in lieu of vacation leave accrued up to that date. Zimta is also to pay him wages for the period July 27, 2005 to May 9, 2007, other benefits that applied during the period, three months notice at today’s rate and 30 percent interest on the wages and benefits due.”

The justification of the award was said to be “the dismissal date is May 9, 2007, the date of hearing, for the purposes of calculating terminal benefits and putting right the procedural unfairness.” Both parties appealed to the Labour Court against the award. Zimta argued that the Arbitrator erred in holding that the dismissal was procedurally unfair. It said that in terms of Section 2 (d) of Statutory Instrument 130/03, it was procedurally correct to summarily dismiss an employee. Zimta further said that the issue of being heard did not arise.

If the employee was aggrieved by such dismissal, he should take the matter before a labour officer for the employer to show cause why he dismissed the employee.
Zimta also argued that once it was found that the dismissal was substantively fair, it should have been confirmed without the “package” that was made in favour of Chiduwa. The award package was said to be a gross error.

On the other hand, Chiduwa’s cross appeal was that there was no proof on a balance of probabilities and therefore he should have been reinstated without loss of benefits. He said that James Manzi was a suspect witness since he had access to the cheques in question. Chiduwa also said the officers from Bikita were suspect witnesses since they had access to the chequebook for one of the cheques.

As for Chinembiri who encashed the two cheques, he said that he should have been called to give evidence. The warned and cautioned statements made by Chinembiri were said to be in admissible since it was not known whether they had been given freely and voluntarily. The affidavit was also challenged, and Chiduwa prayed for reinstatement without loss of benefits.

The parties prepared their heads of argument independent of what the other party was saying. Nobody answered what the other party had said. This was caused partly by the fact that the heads were not filed in time.

Indeed, we have parties that are filing their heads of argument from the bar. In a lot of cases on the court circuit, there are no heads of argument filed and no applications to bar or for judgment are made.

The case was referred back in order to determine whether the procedure adapted by Zimta was procedurally correct. This is not entirely the same as “procedurally fair,” in the peculiar circumstances of this case.

The question is whether Zimta used a procedure that was provided for at law. In other words, is there provision for dismissing an employee without carrying out a hearing? That is the question.

Unfortunately, both the Arbitrator and Chiduwa did not address this point. Chiduwa is quiet, while the Arbitrator only addressed the issue of a fair hearing.
Fortunately, the Arbitrator went on to consider the case on the merits after allowing evidence. To that extent, it would be possible to bring the matter to a close. Whether the procedure was correct or fair becomes a non-issue in view of the decision on the merits.

Chiduwa was dismissed in terms of Statutory Instrument 130 of 2003. This law provides for two ways of dismissing an employee. This is by way of Sections 2 and 3.
Section 2 is by way of summarily dismissal while Section 3 is by way of a hearing. Section 2 says: “No employer shall, summarily or otherwise terminate a contract of employment unless the employee is dismissed on any of the grounds specified in paragraph (b) of Section 12B of the Act.” This clause is very clear. It is simply saying that an employee may be summarily dismissed on any of the grounds specified in the said paragraph (b) of Section 12B. A look at the said Section 12B shows that there is no such paragraph. From the context this must be the relevant provision. According to this provision, an employee may summarily be dismissed for theft or fraud among other acts.

It is worth noting that Section 12B (2) (b) is saying in other words that an employer is required to show that he dismissed an employee because “he had good cause to believe that the employee was guilty of” this or that. This only arises if the employee challenges the dismissal and the parties have to appear before a Labour officer.

The procedure in Section 3 calls for a hearing. It also appears that the words “he had good cause to believe” denote a situation where there has not been a hearing but only from the information available, the employer is of the opinion the employee committed an act of misconduct. A party should not be allowed to allege the misdirection in the heads of argument or in his address in court. This should be done in the grounds of appeal or cross-appeal as is in this case.

In the result of this case, Labour Court president Mr Custom Kachambwa allowed the appeal by Zimta while dismissing Chiduwa’s cross appeal. Chiduwa was however entitled to the statutory terminal benefits with the effects from the date of his first suspension or first dismissal where there was no suspension.
Mr Kachambwa ruled that Chiduwa be paid his terminal benefits in United States dollars.