Judgment record
Abison R. Mufukwa v Zim Posts (Pvt) Ltd
[2013] ZWLC 42LC/H/42/20132013
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENTNO.LC/H/42/2013
HELD AT HARARE ON 12 OCTOBER, 2012 CASE NO. LC/
H/251/2011
In the matter between
ABISON R. MUFUKWA –
Appellant
And
ZIM POSTS (PVT) LTD -
Respondent
Before The Honourable L. Kudya, President
For Appellant - Mr. B. Jula Jula (Unionist)
For Respondent - Mr. C. Kwaramba (Legal Practitioner)
KUDYA, L.
This is an appeal against the decision of the National Hearing
Committee of the respondent company which confirmed the
appellant’s dismissal on charges of violating the respondent’s code
of conduct. In particular it was alleged that the appellant
contravened sections 3(8) (1), 3 (8) (viii), 4(10) and 4(11) of the
respondent’s code of conduct.
The brief facts of the case are that appellant was employed by
the respondent company as a counter clerk based at Chitungwiza
post office. On the 12th of February 2011, whilst on duty the
appellant is said to have been involved in a misunderstanding with a
customer whom he was serving, to the annoyance of all the other
customers who were waiting to be served .In a bid to end the
misunderstanding the post
JUDGMENT NO.LC/H/42/2013
master intervened and ordered appellant to close his counter and go
home. Instead of complying with the order, the appellant confronted
the postmaster in his office and fought him. As a result of this
conduct the appellant was charged with the following offences:
A. 3(8) (1)-”unbecoming or objectionable behavior that is to say:
discourtesy or rudeness to customers or other members of
staff;
B. 3(8) (viii)- ”unbecoming or objectionable behavior that is to
say: conducting oneself or behaving in a manner that brings or
is likely to bring the name of the corporation into disrepute or
to tarnish the image of the corporation”
C. 4(10)”assault or fighting”
D. 4(11)”willful disobedience to a lawful order given by
immediate superior or any such other senior official within
the chain of command provided the instruction is related to
one’s duties in the operations of the Corporation”
Appellant was brought before the Regional Hearing Committee
which found him guilty on the charge of assault or fighting and not
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guilty on the charge of unbecoming behavior calculated to bring the
name of the company into disrepute. He appealed to the National
Hearing Committee which reversed the decision of the Regional
Hearing Committee and found appellant not guilty on the assault
charge but found him guilty on the unbecoming behavior charge
and the willful disobedience charge. The National Hearing
Committee however still upheld the decision to dismiss the
appellant. It is against this decision that the appellant now appeals
to this court.
The basic grounds of his appeal are as follows: the National
Hearing Committee erred and misdirected itself at law by relying on
the charges which were nullified and that the National Hearing
Committee
JUDGMENT NO.LC/H/42/2013
was wrong at law by upholding the decision of the Regional
Committee of dismissing the appellant when there was no
overwhelming evidence that indeed the appellant was wrong.
On the other hand, the respondent maintains that the decision
by the National Hearing Committee was well founded and does not
deserve to be upset by this Honourable Court. In essence the
respondent maintains that the appellant’s behavior was indeed
objectionable and unbecoming in that he was discourteous to both
the customers and other members including his boss whom he
fought within the customer’s earshot , willfully disobeyed the
postmaster’s order to complete his balancing and go home and that
he came to work drunk. He thus conducted himself in a manner that
was likely to bring the name of the corporation into disrepute.
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The appellant admitted that he did not go home when asked to,
by his superior and that he argued with a customer when in fact it
was him who was wrong as regards the payment which the
customer was making. The respondent therefore maintains that the
appellant cannot seek to be excused for all the above shortcomings
and urges the court to reverse the decision to dismiss him which was
arrived at by the Regional Hearing Committee and endorsed by the
National Hearing Committee.
The following is common cause. Appellant engaged in an
altercation with a customer and later realized that it was him who
was wrong as regards the facts of the misunderstanding in question.
This took place in full view of the other customers who were waiting
to be served in this post office. When the post master invited him to
close his counter and go home, appellant refused to do so, instead
he confronted the postmaster in question in his office.
JUDGMENT NO.LC/H/42/2013
The only triable issue therefore is; from all the facts and
evidence in this case, can it be said that the National Hearing
Committee misdirected itself in upholding the appellant’s dismissal?
When the matter first appeared in this court, it was struck off the
roll on the basis that the grounds of appeal which had been placed
before the court did not satisfy the test of grounds of appeal upon
which a court could be asked to make a determination. By consent
with the respondent’s counsel the matter was struck off the roll and
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appellant was granted leave to have the matter reset with proper
grounds of appeal. On the reset date the appellant was represented
by a union member who then handed in the improved grounds of
appeal.
On the date of the hearing of this appeal the respondent raised
a point in limine that the appeal was out of time and because there
was no application for condonation of the late filing of the same this
meant that the matter was improperly before the court and had to
be struck of the roll once again.
Following protracted addresses and extensive citing of
authority on the issue, the parties finally agreed that the matter
proceed on the merits notwithstanding the fact that the appeal was
out of time and no condonation had been sought or granted to
regularize the anomaly. This court indicated that it had endorsed the
agreement by the parties to let the matter progress on the merits
notwithstanding the irregularity vis timelines for the appeal. It also
indicated that it would elaborate further on that aspect in the main
judgment.
In respect of the point in limine, the court was mindful of the fact
that any decision based on irregular pleadings is also a nullity as
indicated in the cases quoted by respondent’s counsel and the
appellant’s representative. The court was however persuaded to
endorse the consensus by the parties to condone the breach of the
late noting of
JUDGMENT NO.LC/H/42/2013
the appeal .It was also of the view that another order to strike the
matter off the roll based on the argument that the appeal was out of
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time would also mean that there would be delayed relief in the
matter.
Further to that, the court observed that even though union
representation was far much better than self-representation by the
appellant it surely could not be equated to the standard that would
be expected of a qualified Legal Practitioner. The court took it that
the niceties of condonation applications etc. are the kind of issues
that the court would expect trained counsel to satisfy to the letter
but for a unionist with a modicum of legal expertise fictional
fulfillment of same would in the court’s view suffice.
Section 2 of the Labour Act Chapter 28:01 underscores the need
for the court to ensure that social justice prevails in labour issues.
Rule 26 of the Labour Court Rules 2000 also allows the court to
depart from strict compliance with the rules to ensure justice in
labour cases given the level of sophistication of the parties who seek
justice in that forum. The court therefore concluded that it was not
irregular to allow this matter to proceed on the merits in an appeal
wanting in compliance with the time lines. The irregularity
complained of was therefore cured by this court’s endorsement of
the agreement between the parties to proceed to the merits of the
appeal notwithstanding its defective nature. That put to rest the
point in limine which had been raised by the respondent
As regards the merits of the appeal it is important to set out the
background within which the National Hearing Committee heard the
appellant’s. During the hearing before this court the appellant took
issue with the fact that he believed that the National Appeals
Committee exceeded its mandate by hearing the matter on issues
which had not been before the Regional Hearing Committee.
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Counsel for respondent at that stage conceded that if that
happened, it was excusable because the hearings were not
conducted by legal experts.
JUDGMENT NO.LC/H/42/2013
Towards the end of the submissions in the matter it became
apparent that there was certain information which had been placed
before the court which needed further clarity. In particular, it
became apparent that at the Regional Hearing Committee stage
appellant had been charged by two separate authorities on the
same facts. The postmaster had charged him with willful
disobedience of superior orders and conduct likely to bring the
corporation into disrepute. He could not charge appellant with
assault as he was the complainant on the assault charge.
Ms Tsanga from the regional office then went on to charge
appellant with the assault charge as well as the charge of bringing
the corporation into disrepute. The appellant was subjected to two
hearings on the facts. When he presented his appeals he would have
the court believe that the National Hearing Committee imported
charges from nowhere which were not before the Regional
Committee.
The court directed the respondent to present before it both the
handwritten and printed copies of the minutes pertaining to those
initial hearings .The respondent only managed to avail one
handwritten set citing misplacement of the of the other set . The
appellant argued extensively that this clarification was tantamount
to bringing in new evidence which was not permissible at law. He
quoted a number of cases stating the law on that point.
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It is however worth noting that at the end of the submissions on
the issue the appellant agreed that indeed he had been charged
separately by the different offices even though he had created the
impression throughout that the findings made by the National
Hearing Committed were based on allegations which they had
“plucked from the air” to use the appellant’s representative’s words.
Respondent apologized for the error of not noticing that indeed
the findings by the National Hearing Committee had been based on
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JUDGMENT NO.LC/H/42/2013
sets of charges hence the concession about the possibility of
erroneous dealing with the charges by the National Committee had
no basis at all.
The court accepted the appellant’ argument that the law assists
the vigilant but noted that it would be abdicating its function if it
was persuaded to exclude vital evidence on a case simply because
the respondent had made an oversight.
The oversight came to the parties’ attention on time and the
appellant was given an opportunity to make submissions on it hence
there was no question of him being prejudiced by the clarification
which came at the eleventh hour. If anything the fact that appellant
knew of the correct position throughout but did not take the court
into his confidence on that was likely to cause the court to decide the
matter on insufficient fact yet it was clear that the National
Committee dealt with charges which had been posed by two
different persons makes his argument about vigilance baseless. The
court was therefore persuaded that notwithstanding the absence of
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the other set of the handwritten notes of the hearing it is clear that
the appellant was tried on 2 sets of charges hence there was no
misdirection on the part of the National Hearing Committee.
As indicated by the respondent’s counsel charges under 3 (8)( 1)
and 3 (8)(viii) were effectively charges under the same category .In
fact the first one amplified the other one but what was important
was that the conduct complained of was capable of lowering the
reputation of the corporation . The court was therefore satisfied that
nothing much turned on the argument about the split of the charges
as the net result was the same.
Having concluded that indeed appellant answered to charges
separately on the same facts the next issue to be decided is whether
the decision by the National Committee to uphold his dismissal was
baseless.
JUDGMENT NO.LC/H/42/2013
Experts quoted in the respondent heads of argument on the
issue of failing to obey superior orders and unbecoming behavior
likely to put the corporation into disrepute answered this question in
the affirmative .On the issue of arguing with the customer appellant
was quoted saying:
“--------in fact I had forgotten that he had given me some money. ----------------------- by
the time I managed to convince him of the $55 that is when I checked and realized
that he was right in that he had given me $50.”
Relating to the disobedience of a lawful order he said:
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“ ----------he told me to close counter and go home . I asked for the reason and he did
not tell me. He just said close and go home. As a result I continued to work”
These experts confirm that appellant refused to comply with the
postmaster’s order and argued with the customer without any basis
for the argument. Such conduct indeed was tantamount to the
tarnishing of the image of the corporation. Whilst the appellant does
not admit as a fact that his behavior that day could have been
occasioned by the fact that he was drunk, the court is persuaded
that such a finding by the trial bodies was not misplaced given the
manner in which Appellant behaved on the day in question.
The court was also persuaded by the argument advanced by the
respondent that there was nothing irregular by the National
Committee finding that the Regional Committee ought to have
found the appellant guilty of conduct likely to bring the corporation
into disrepute as there was ample evidence to that effect. This court
was convinced that the appellant failed to make out a case
warranting this court’s interference with decision of the National
Committee. His appeal accordingly fails.
It is therefore ordered as follows:
JUDGMENT NO.LC/H/42/2013
That the appeal being without merit be and is hereby dismissed with
costs.
The proceedings and the decision of the National Hearing
Committee dismissing appellant is hereby confirmed.
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L . KUDYA ____________________________
PRESIDENT
Mbidzo , Muchadehama and Makoni – Respondents Legal Practitioners .
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