Brian Chabuka N.O. v National Pharmaceutical Company & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/43/2021
HARARE, 25 MARCH 2021
CASE NO LC/H/LRA/49/17
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/43/2021

HARARE, 25 MARCH 2021			      CASE NO LC/H/LRA/49/17

AND 9 APRIL 2021

In the matter between:-

BRIAN CHABUKA N.O.						Applicant

And

NATIONAL PHARMACEUTICAL COMPANY			1st Respondent

And

MUHLE DUBE							2nd Respondent

Before Honourable B.T. Chivizhe, Judge

Applicant			In default

For 1st Respondent	Mr P. Nyeperayi (Legal Practitioner)

For 2nd Respondent	Ms T. Barangwe (Trade Unionist)

CHIVIZHE, J:

This is an application for confirmation of a draft ruling handed down by the Applicant on the 8th July, 2016. The application is premised on the provisions in Section 93 (5a) (b) of the Labour Act [Cap 28:01] (the Act).

The matter was initially placed before this court in 2015. The 1st Respondent having taken points in limine the matter was reserved after the hearing. The court thereafter handed down its ruling dismissing the points in limine. The court directed a reset of the matter.The 1st Respondent in 2020 approached the court for the matter to be reset.  The 2nd Respondent also filed an application in terms of Rule 33 (2) of the Labour Court Rules, 2017 for his joinder to the main proceedings which application was duly granted. The matter having been reset the following is my judgment on the merits of the application for confirmation.

APPLICANT IN DEFAULT

The Applicant was in default of appearance on the date set down for hearing. His colleague, Mr M Muzadzi appeared to seek a postponement on his behalf. The application was vigorously opposed by the 1st Respondent Counsel as well as the 2nd Respondent Representative. The court agreed with both parties submission that considering the length of time the matter had taken in the court it was only fair that the court proceeds to hear the matter notwithstanding the Applicant absence.  In acceding to the position by 1st and 2nd Respondents the court noted that the Applicant was aware of the date of set down having been served with notice. He was therefore in wilful default. The court was also cognisant of the sentiments expressed by the Supreme Court in Drum City vs Brenda Garudzo SC 937/17 that the Designated Agents/Labour Officers when they do file the applications for confirmation such as this are only nominal parties to the proceedings. They do not stand to benefit or lose anything in these matters. They thus have no personal interest in the dispute or the outcome thereof. The people who are affected are the employer/employee parties to the dispute. On this basis the court directed that the matter proceed even in the absence of the Applicant.

1ST RESPONDENT SUBMISSIONS

Mr Nyeperayi, for 1st Respondent, submitted that he would no longer be pursuing the other points in limine taken through his Heads of Argument. In regards the merits the 1st Respondent was adhering to the papers as filed of record. Mr Nyeperayi submitted that the 1st Respondent was opposed to the confirmation of the draft ruling for one simple reason. It was clear from the record that when the parties approached the Applicant they had referred only one issue for determination which was, whether not the claimant had been unfairly dismissed? A perusal of the Applicant draft ruling however clearly showed that the Applicant had departed from the terms of reference, he had gone on a frolic of his own and created an extra issue for determination i.e. whether or not the dismissal penalty was appropriate. Having created this issue the Applicant had then proceeded to determine the matter on the basis of this point. The Applicant had thereafter found that the penalty imposed by 1st Respondent was a harsh penalty. The Applicant had accordingly erred and misdirected himself in proceeding outside the mandate extended to him. The 1st Respondent further position was that the Applicant having found that 2nd Respondent was indeed guilty of negligence it was not within his power to direct reinstatement. On this basis alone it was 1st Respondent submission the draft ruling could not be confirmed.

2ND RESPONDENT SUBMISSIONS

Ms Barangwe, for the 2nd Respondent submitted that the 2nd Respondent was in support of the confirmation of Applicant’s draft ruling. The ruling had been properly arrived at after the Applicant had considered the material background circumstances to the matter and the submissions by the parties. The background circumstances were that the 2nd Respondent was employed by the 1st Respondent as  an Accounts Clerk. He was charged with two acts of misconduct under the National Code of Conduct i.e. (i) Any act or omission inconsistent with the fulfilment of the express or implied conditions of his contract, (ii) Substantial neglect of his duties. The charges emanated from the 1st Respondent allegation that the 2nd Respondent had in the course of his duties lost a crucial file.

Ms Barangwe submitted that 2nd Respondent had argued before the disciplinary/appeals committee that the charges had not been established for the reason that he was employed as an Accounts Clerk; the Standard Operation Procedures Manual clearly stated that the Cashier was responsible for keeping the files. The cashier was also responsible for recording the movement of files. Ms Barangwe further submitted that whilst 2nd Respondent had admitted using the file he however was not the last person to utilise the file. The 2nd Respondent position therefore was that the applicant had correctly captured in his draft ruling the sequence of events. The Applicant had correctly noted that 2nd Respondent was not the custodian of files. The Applicant had also correctly reached the conclusion that given the factual background to the matter the penalty of dismissal was clearly not appropriate. This was more especially considering that the missing file was found before the disciplinary hearing. In respect of the allegation that Applicant had exceeded his mandate Ms Barangwe noted that the terms of reference referred to only the issue of unfair dismissal. Her view however was the Applicant was still duty bound to also consider the issue of penalty more especially considering the strong mitigatory factor that the file had actually been found prior to the hearing. The Applicant was therefore correct in arriving at the decision that a lesser penalty was more appropriate.

RULING

The ground of objection taken by the 1st Respondent is clearly with merit. The record of proceedings shows that in referring his claim to the NEC, 2nd Respondent through a letter penned by his Representative dated 30th March 2016 identified two issues i.e. Firstly, the issue as to whether or not dismissal was fair and secondly, the issue of the penalty that induced a sense of shock. A further perusal of the record however reveals that when the matter was eventually referred to the Applicant in his capacity as Designated Agent there was only one issue for determination which was ‘whether or not the Applicant was unfairly dismissed’. This is apparent from the Form L.R.2 which is the Certificate of No Settlement.

The draft ruling by the Applicant also refers to one issue having been placed before him for determination i.e. ‘whether or not the Applicant was unfairly dismissed’. It is therefore apparent that the Applicant did travel beyond his mandate when he proceeded to address the issue of the penalty. This he did even after he had determined that Applicant was guilty of some negligence though not at the gross level. The Applicant is his own words stated as follows;

“The Standard Operating Procedure Section 11 (1.6) is very clear in that the cashier shall ensure anybody who borrows payment vouchers (files) signs for them. I understand the same should be done when returning them. In other words the Cashier was the custodian of the files and should avail the register to show the last person who had used the missing file.

However, having worked for 10 years at the organisation, the accused should have also have followed the procedure by submitting back the file to the Cashier. The Applicant did not follow this procedure of which he admits. He however argues that he was not the last person to have used the file. It is my understanding that the missing file had vital company information critical to the organisation and the Applicant having worked for those years at the organisation should have known better.

The element of negligence on the part of the Applicant cannot be ignored. However, gross negligence or culpa lata/culpa crassa connotes recklessness, an entire failure to give consideration to the consequences of his actions, a total disregard of duty. Rosenthal v Marks, Standard Chartered Bank of Zimbabwe Ltd v Chipininga SC 104/2002. CSAR v Adlington & Co. 1906 TS 964. Also Merchant Bank of Central Africa v Dube S-6-04. In this act or omission, I do not see a total disregard of duty or entire failure in giving consideration to the consequences of his omission, a number of people had access to the file and it seems it went through the hands of various people.”

Having made this finding of guilt the Applicant then proceeded further down in his ruling to decide the issue of penalty. He made the following observations and finding;

“It is said the missing file was found before the commencement of the disciplinary proceedings though with some missing documents. I found it absurd on how the disciplinary committee would then proceed and give a determination without considering that the file had been found. The Appeals Officer also subsequently decided to ignore this important development and proceed to give the determination.

The dismissal verdict passed against the appellant in my opinion was too harsh. In my view, a lesser penalty was more appropriate.”

There is no doubt that when Applicant reached his verdict on the issue of penalty that issue had not been placed before him as an issue. In so doing the Applicant clearly exceeded his mandate. The law is clear that when Labour Officer and by extension a Designated Officer sit to conduct conciliation proceedings under the provisions of Section 93 of the Labour Act [Cap 28:01] such Labour Officer and by extension the Designated Officer is mandated to address only the dispute as referred to him. The role of the Designated Officer (just as for Labour Officer) in attempting to settle a dispute through conciliation in accordance with the provisions of Section 93 of the Labour Act [Cap 28:01] was amply discussed in the Isoquant matter CCZ 6/20 Isoquent Investments (Private) Limited t/a ZIMOCO V Memory Darikwa.

It is very apparent from the submissions by 1st Respondent and not contested by 2nd Respondent that the issue referred before the Applicant was not whether or not the sentence imposed was harsh. The issue was whether or not the dismissal was unfair. The matter ought to have been decided on this issue alone. The Applicant clearly misdirected himself at law when he proceeded to identify an issue not referred to him and then proceed to determine the matter on the basis of that issue. The words of Gwaunza DCJ in the matter of Central Africa Building Society vs Penelope Douglas Stone and Others SC 15/2021 which authority was referred by the 1st Respondent clearly apply in this case. She stated as follows;

“Needless to say, a judicial officer cannot competently determine a case arising out of his or her misreading of the issues placed before the court. Nor can the judicial officer create and determine a case for the parties no matter how strong his or her views may be as to how the case should have been articulated.”

The court therefore finds that the objection taken by the 1st Respondent to the confirmation of the draft ruling is meritorious and ought to be allowed.

In the result it is ordered as follows;

The application for confirmation of the draft ruling per Brian Chabuka, N.O. dated 8th July, 2016 be and is hereby dismissed with no order as to costs.

Costa & Madzonga, 1st Respondent’s legal practitioners