BYCO (PVT) LTD v Mathew Nyamauta

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/465/14
HELD AT HARARE 10TH JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/465/14

HELD AT HARARE 10TH JULY 2014			CASE NO LC/H/41/14

& 1ST AUGUST 2014

In the matter between:-

BYCO (PVT) LTD					Appellant

And

MATHEW NYAMAUTA				Respondent

Before The Honourable L.M. Murasi, Judge

For Appellant		Mr B Museba (Legal Practitioner)

For Respondent		Mr B Makururu (Legal Practitioner)

MURASI, J:

Respondent was employed by appellant as a tool-setter. He is alleged to have influenced other employees to proceed on a “go slow”.  A machine broke down and it was attributed to respondent’s actions.  He was brought before a Disciplinary Committee which recommended his dismissal.  An appeal to the Works Council met with a similar fate.  Respondent further appealed to the industry’s General Engineering Code of Conduct Appeals Sub Committee (hereinafter the GEC) which found in his favour and ordered his reinstatement.

Appellant is dissatisfied with this decision and has approached this Court on appeal.

Appellant’s grounds of appeal can be summarised as follows:

The GEC failed to call appellant for the hearing

The GEC failed to hear the matter within 21 working days as prescribed.

The GEC did not take into account the fact that respondent did not advise the Works Council (appellant)  that he was appealing to the GEC.

The GEC failed to appreciate the fact that respondent was being charged with a very serious offence.

The GEC erred and misdirected itself in concluding that this was a collective job action which required a show-cause order from the Ministry of Labour.

In submissions before the Court, appellant’s Counsel abided by the

Heads of Argument filed of record and emphasized that the GEC breached the principles of natural justice by failing to afford the appellant the right to be heard.  Appellant stated that it was never notified of the hearing.  It was further stated that respondent had not filed the appeal within five (5) days as prescribed in the Collective Bargaining Agreement for the Engineering and Iron and Steel Industry, Statutory Instrument 301 of 1996.  It was further submitted that the GEC had failed to consider the evidence on record and simply made an observation that this was a collective job action requiring a Ministerial show cause order.  It was submitted that there was no collective job action at that particular time.

Respondent’s submissions were that appellant’s grounds of appeal did not have any merit at all.  It was stated that respondent had received the notice of dismissal on 26 February 2013 and had lodged the appeal with the GEC on 1 March 2013 which was within the prescribed period of time.  As to the fact that appellant was not called for a hearing, it was submitted that the Regulations did not show that it was mandatory for the GEC to call parties to a hearing.  In fact the respondent was not called to the hearing.  The GEC, it was submitted, was entitled to proceed on the papers filed of record as it was an appellate tribunal.  Respondent’s Counsel further stated that the record showed that the matter was not dealt with on the merits and showed that the GEC merely stated that it did not have jurisdiction to preside over the matter as it was a collective job action which required a Ministerial certificate.

The Court will consider appellant’s grounds of appeal in turn.  Appellant’s first ground of appeal is that the GEC erred and misdirected itself in ignoring and/or failing to notify the appellant of the hearing.  The Court finds this ground of appeal surprising to say the least.  Appellant was served with the Notice of Appeal to the GEC by respondent’s representative.  Appellant’s  Counsel had argued that appellant had not been served with such notice.  However he made the concession when the record was brought to his attention which showed that appellant had indeed been served but had not made submissions to the GEC in this regard.  As submitted by respondent’s Counsel, the audi alteram partem principle does not necessarily require that a party has to be called to give evidence at a hearing.  Ordinarily, appellate tribunals deal with matters on the record unless there is a particular matter which that tribunal may require clarification from the parties.  Further the Collective Bargaining Agreement governing the disciplinary procedures does not make it mandatory for the GEC to call the parties to a hearing.  In any event, by failing to make submissions before the GEC, appellant is assumed to have waived its rights.  The Court is of the view that this ground of appeal lacks merit and should be dismissed.

The second ground of appeal alleges that the GEC failed to determine the matter within 21 days of its receipt as prescribed in the Collective Bargaining Agreement.  A reading of the record shows that this is in fact the case.  The GEC did not conclude the determination of the matter within the prescribed period of time.  The minutes of the hearing itself show the misgivings expressed by the Chair in the delay in hearing matters brought to that body.  Having said that, does the delay in hearing the matter vitiate the proceedings?    Precedent has shown that procedural consideration should not be allowed to vitiate proceedings unless it can be shown that the other party would suffer prejudice.  In casu, appellant has not demonstrated that it has suffered any prejudice as a result of the delay in hearing this matter by the GEC.  This ground must also fail.

The third ground of appeal is that the GEC erred in not finding that Respondent had not informed the Works Council of his decision to appeal to the GEC.  This ground of appeal is obviously without merit as the record shows that the Notice of Appeal to the GEC was duly served on appellant.  Appellant acknowledged receipt by stamping a copy thereof.

The fourth ground of appeal alleges that the GEC failed to determine the matter before it by failing to consider that respondent had committed a serious offence.  The record shows that the GEC did not determine the matter on the merits.  The Court is of the view that grounds of appeal four (4) and five (5) should be considered simultaneously.  The GEC stated its decision as follows:

“The Committee observed that it was a strike/collective job action and the employer was supposed to apply for a show cause order from the Ministry of Labour.”

The record does not show that the GEC made any other consideration

on the merits of the case.  Does the record show evidence of a collective job action?  A reading of the record shows that respondent is alleged to have spoken to other employees to “go slow.”  There is no indication that all the employees agreed to this action.  The evidence that is on record is that one of the machines broke down.  However, there is no evidence showing that this was a direct result of the proposed collective job action.   The Court expected the GEC to make findings on the record presented to it.  This was not done.

Appellate courts are reluctant to interfer with decisions of lower tribunals unless there is evidence that the decision arrived at was so unreasonable that no reasonable tribunal would have arrived at such a decision on the same facts.  (See generally Hama v NRZ 1996 (1) ZLR 664 (SC).  The Court finds no evidence of a collective job action on the record and the GEC erred in that respect.  The GEC also erred in not making a finding on the evidence on the record as it was required to do.  It would be proper in the circumstances to remit the matter for a re-hearing before a differently constituted GEC.

In the result, the appeal partially succeeds.  The Court makes the following order:

The appeal succeeds

The decision of the GEC of 19 November 2013 is hereby set aside.

The matter is remitted to the GEC for a re-hearing by a differently constituted panel.

The matter should be heard within 30 days of this order.

There is no order as to costs.

Muzangaza, Tomana & Mandaza, appellant’s legal practitioners

Musoni Law Chambers, respondent’s legal practitioners