Associated Newspapers of Zimbabwe v Charles Manyenga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/115/2014
HELD AT HARARE ON 17 FEBRUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/115/2014

HELD AT HARARE ON 17 FEBRUARY 2014			CASE NO. LC/H/163/12

& 28 FEBRUARY 2014

In the matter between

ASSOCIATED NEWSPAPERS OF ZIMBABWE 			APPELLANT

And

CHARLES MANYENGA							RESPONDENT

For the Appellant	:	Ms G. Ncube (Legal Practitioner)

For the Respondent:	MrChimhuka (General Secretary Zimbabwe Graphical Workers Union)

CHIVIZHE J:

The matter was placed before me as an appeal against the decision of the N E C Appeals Committee. The Appellant is the former employer of the Respondent.

The background facts are as follows:

The Respondent was employed by the Appellant as the Night Supervisor for the daily newspaper the DAILY NEWS.  One of his duties was to supervise the dispatchment of newspapers and to ensure that the exact figure of newspapers dispatched tallied with the number of newspapers required for distribution on the day.On 17th of November, 2011 the Respondent dispatched fewer newspapers than were required for distribution.  This resulted in lack of distribution to the customers who had paid for the newspapers to be delivered.  A total of eighty newspapers were not dispatched.

The Appellant viewed Respondent’s conduct as a dereliction of his duties.  As a result disciplinary proceedings against the Respondent were instituted.  He was suspended pending hearing.  A disciplinary hearing was then convened where the Respondent was charged with gross negligence an offence prescribed in the relevant Code of Conduct that is Collective Bargaining Agreement for the Printing, Packaging and Newspaper Industry (Code of Conduct) Statutory Instrument 148 of 2009.  The Respondent was found guilty of the charge and a penalty of dismissal was consequently imposed on him.  The Respondent after exhausting all internal remedies appealed to the National Employment Council for the Printing, Packaging and Newspaper Industry (NEC) Appeals Committee.  The Committee in its decision on the 28th of July, 2012 determined that, the Respondent be reinstated to his original position without loss of pay and benefits up to the date of reinstatement.  The Appellant was aggrieved by this determination and noted the present appeal.

The appeal has been noted on the following grounds:

The Appeals Committee erred in ordering reinstatement without giving reasons for its decision.

The Appeals Committee erred in ordering the reinstatement of the Respondent despite clear proof that he had committed an act of misconduct which involved a breach of trust going to the root of the employment contract, and despite clear evidence that the relationship of trust between the Appellant and Respondent had irretrievably broken down.

The Appeals Committee erred in finding that there were mitigatory factors that mitigated against the penalty of dismissal, when no such mitigatory factors existed. WHEREFORE the Appellant prays that the decision of the Appeals Committee be set aside.

The appeal has been noted principally against the order of reinstatement returned by the NEC Appeals Committee.  It is important for the purpose of determining this appeal to outline from the outset the contents of the letter from the Appeals Committee dated 28 February 2012.  The letter reads as follows:

“Further to the appeal that was brought to the NEC Appeals Committee’s attention by your employee mentioned above, wherein you dismissed him on allegations of misconduct-gross negligence. The appeals Committee would like to advise you of its determination to re-instate the employee effective today. The appeals committee has also determined that the reinstatement is with loss of pay and benefits up to the date of re-instatement.

Having considered circumstances surrounding the matter, mitigatory factors, evidence filed of record and the intentions and purpose the code of conduct which is educative, corrective then punitive, the committee would like to advise you that his appeal was successful. The committee determined that the employee be issued with a Final Written Warning that is valid for 12 months, which is line without Industrial Code of Conduct, Statutory Instrument 148 of 2009.

You are also advised to contact the undersigned for any further clarifications you may wish to seek.”

The Appellant in its first grounds of appeals alleges that the Appeals Committee erred in ordering reinstatement without giving reasons for its decision.  I believe that the present appeal can be resolved by a resolution of this point alone.  The two other grounds of appeal filed are clearly pinned and interlinked to the first ground of appeal.   I shall therefore address the first ground of appeal.

I am satisfied upon perusal of the NEC Appeals Committee letter dated 28 February 2012 (see above) that indeed the Committee erred in not furnishing its reasons for revoking the penalty of dismissal andsubstituting it with reinstatement and a Final Written Warning.  Even though the letter indicates that the Committee considered the surrounding circumstances, the mitigatory factors, the evidence filed of record and the intentions and purpose of the Code of Conduct which is educative, corrective then punitive the Committee needed to go further to explain why in this particular case the penalty of Final Written Warning was warranted in the circumstances. The need for reasons by the administrative bodies cannot be overemphasized. A reasoned decision lends credibility and legitimacy to the decision handed down. Reasons and indeed the minutes of any disciplinary proceeding are also necessary where the Code of Conduct provides an employee with a right of appeal. Without reasons an affected person cannot tell whether the decision is renewable/appealable or not. A party may consequently be deprived of the protection of the law. In casu the NEC Appeals Committee failed to provide reasons where clearly the Code of Conduct gives a right of appeal from the determination of the NEC Appeals Authority to the Labour Court.  The NEC Appeals Committee therefore erred.Its decision on the penalty clearly cannot stand therefore. The penalty ought to be set aside. The matter shall be remitted back to the NEC Appeals Committee for it to reconsider the aspect of the penalty and provide a reasoned decision.  It is accordingly ordered as follows:-

The appeal be and is hereby allowed to the extent that the decision by the NEC Appeals Authority ordering reinstatement and imposition of a Final Written Warning be and is hereby set aside.

The matter is remitted back to the NEC Appeals Authority for a rehearing on the appropriate penalty and the reasons thereof.

Such rehearing shall be convened within sixty days of the handing down of this judgment.

The respondent status shall revert to the same position as pending the determination of the NEC Appeals Authority.

Coghlan Welsh & Guest, appellant’s legal practitioners