ZNWA v MWOYOUNOTSV? 2015 (1) ZLR 935 (S)

Flynote

Employment — appeal — against determination of disciplinary committee under disciplinary code — appeal heard by arbitrator — limited grounds on which arbitrator can interfere with factual findings by disciplinary committee — such findings need to be found to be irrational — without such finding, no basis for interference — factual findings supporting conclusion that employee guilty of act inconsistent with express or implied conditions of his employment

Headnote

The respondent, who had been employed by the appellant authority in a e senior position, was charged at a disciplinary hearing with offences which arose out of an accident which occurred in a vehicle belonging to the authority. In spite of his denial of the charges, he was found guilty and was dismissed from his employment. Internal appeals having failed to exonerate him, the matter ended up before an arbitrator. The matter had apparently been referred to the arbitrator by the registrar of the Labour F Court, to which the respondent had appealed. The arbitrator stated that his terms of reference were "to look into the substantive fairness of the dismissal", and proceeded to deal with the matter as an appeal. "Grounds of appeal" were submitted to the arbitrator by the respondent. The arbitrator heard no evidence but relied on that contained in the record of disciplinary proceedings. He upheld the appeal, set aside the findings made by the domestic tribunals and ordered the reinstatement of the respondent. The appellant appealed to the Labour Court, contending, in the main, that the arbitrator had no jurisdiction to set aside the factual findings of the lower tribunals. The Labour Court dismissed the appeal, and the appellant appealed to the Supreme Court. The main issue waswhether the Labour Court was wrong in law to uphold the award of the arbitrator in quashing the findings of the disciplinary committee as confirmed by the appeals officer. resolution of this issue depended on a determination as to whether or not the arbitrator, sitting as an appeal court, could set aside findings of fact made by the lower tribunal.

Held, that an appellate court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable, in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision 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 it: or that the decision was clearly wrong. Sitting as an appellate tribunal, the arbitrator could not set aside findings of fact made by the disciplinary tribunal unless such findings were so irrational that no reasonable tribunal applying its mind to the same facts would arrive at the conclusion that it did. There was no such finding by the arbitrator or the Labour Court. The arbitrator's action in this regard constituted an error of law and the Labour Court fell into the same error. In the absence of a finding by the arbitrator of irrationality on the part of the disciplinary committee, the Labour Court erred in law in upholding the arbitrator's award. The disciplinary committee's findings were supported by the evidence and its conclusion that the respondent committed an act inconsistent with the express or implied conditions of his employment was unavoidable. The Labour Court therefore erred in law in failing to find that the arbitrator had acted improperly in interfering with the findings of the committee, which findings were supported by the evidence on record. The committee's assessment of the evidence and its consequent verdict could not be said to be irrational and the arbitrator's award should not have been upheld by the Labour Court.