Cochrane Engineering v Chenjerayi Katiyo

IN THE LABOUR COURT OF ZIMBABWE              JUDGMENT NO. LC/H/71/2013

HARARE, 15 JUNE, 2012                             CASE NO. LC/H/528/2012

AND 8 NOVEMBER, 2013

In the matter between




COCHRANE ENGINEERING                 -            Appellant


And



CHENJERAYI KATIYO                    -            Respondent




Before The Honourable B.T. Chivizhe: Judge




For Appellant     -      Mr G. Makings – Legal Practitioner



For Respondent    -      Mr Zvinavakobvu (Legal Practitioner)




CHIVIZHE, B.T.:
      The appeal is against the decision of the general Engineering Committee

made in terms of Section 7 (3) of the Collective bargaining Agreement;

Engineering and Iron and Steel Industry Statutory Instrument 301 of 1996.

The appeal is opposed.



      The factual back ground which is largely common cause is as follows:
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The Respondent was employed by the Appellant for nineteen years as a Fitter

skilled worker Class 2. The Respondent for the greater part of his service was

chronically ill suffering from a kidney ailment. In January, 2009 he was granted

indefinite sick leave by his medical practitioner in order to proceed to South

Africa for a surgical operation. The Respondent approached the Appellant and

was granted leave. He also applied for a loan from the Appellant which loan

was approved in the amount of US$180.00. In South Africa the Respondent

failed to have the surgical operation as he could not afford the figures quoted.

The Respondent however remained in South Africa until the end of March, 2009

when he returned to Zimbabwe. The Appellant had in the meantime through a

letter dated 24 March, 2009, terminated the Respondent’s contract of

employment.



      The Respondent was aggrieved and referred the matter to the Workers’

Employment Council for Engineering, Iron and Steel Industry as an unfair

labour practice. The matter was subsequently referred to an Arbitrator who

directed the parties to discuss mutual termination or the Appellant conduct

proper disciplinary proceedings. The Arbitrator in his award reserved the right

to decide on an appropriate quantum of damages in the event that the parties

disagreed on the course of action to take.



      The Appellant opted to conduct disciplinary proceedings. On 23 March,

2011 the Appellant then advised Respondent of his reinstatement.            The

Appellant then suspended the Respondent with retrospective effect from 24

March, 2009.     The Respondent was then invited to attend disciplinary

proceedings where charges of theft and misuse of company property were to

be leveled against him. The Disciplinary Committee sat on 25 March, 2011 and

found Respondent guilty as charged and dismissed him from employment.


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Dissatisfied the Respondent appealed to the Works Council but his appeal was

dismissed and the Works Council confirmed the decision of the Disciplinary

Committee. Respondent then appealed to the General Engineering Committee

of the National Employment Council for Engineering, Iron and Steel Industry.

That body through a letter dated 17 August, 2011 came to the following

conclusions;


               “The Committee agreed unanimously that the charge preferred was
               inappropriate since the doctor confirmed the initial note granting leave and
               the $180 loan was formerly approved and was meant to augment his expenses
               and the employee knew how best apply it.”


      The Committee directed Respondent’s reinstatement without any loss of

salary and benefits.



      The Appellant was aggrieved and lodged the present appeal.



      The appeal has been noted on rather lengthy and cumbersome grounds.

The main grounds can be summarized to be two:



      The first ground is that the National Employment Council Committee

erred when it came to a conclusion that the charge was inappropriate as the

Respondent had borrowed the money from the employer, the fact that the

Respondent had ended up using the money for other purposes other than the

specific purpose for which the loan had been sought was not the employer’s

business. The second main ground as far as I can decipher is that the NEC

Committee erred when it reached the conclusion that the Respondent was not

guilty on the charges based on the employer’s wrong conclusion reached that

the Respondent had repudiated his contract. The employer had intercepted an

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email containing a reference letter in the name of the Respondent drawn up by

a fellow worker.       The employer had come to the conclusion that the

Respondent’s intention at the time was not to return to work but to find

alternative employment in South Africa.



       Although the second main ground of appeal was included as a ground of

appeal, that ground in my view was improperly raised. It is clear from a reading

of the record that the Appellant had at some stage of the proceedings adopted

the attitude that the Respondent repudiated his contract of employment. When

however the Appellant opted to conduct a disciplinary hearing and leveled

charges of theft or in the alternative fraud; misuse of company property

Appellant abandoned the claims of repudiation.                 Mr Makings in oral

submissions also conceded correctly in my view that the National Employment

Council had erred in the second part of its findings as the employer had not

charged the Respondent with drawing up a reference letter. It follows that

second ground of appeal clearly has no merit and ought to be dismissed.



       The first ground of appeal is based on the decision of by the NEC

Committee that the charge leveled by Appellant was inappropriate.



       The Respondent initially was facing two charges that is violation of

Section D (c) of the relevant Code that is; “unlawful taking of property with the
intention of permanently depriving the company of the property and secondly violation of
Section D (d) that is “applying to a wrong use or for any unauthorized purpose any funds,

assets or property belonging to the company”



       The Appellant’s Counsel before the Labour Court conceded that the first

charge was no longer being pursued by the employer.                  The only charge


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remaining therefore was the charge under Section D (d) which relates to

misuse of company property.



      The Appellant’s submission on that charge is that the Respondent was

given a loan by the employer. The loan was for a specific purpose that it was

paying for an operation in South Africa. Having been granted the money for a

specific purpose it was not open to the respondent to use the money for other

purposes.



      The Respondent’s submission is that once the loan had been approved by

the employer and the money given to the Respondent, that money ceased to be

company’s money. It was money approved for use by the Respondent towards

his medical bills and which money the Respondent was expected to repay at

some time according to the loan agreement as signed between the parties. The

claim by the Appellant that the Respondent diverted the money to wrong and

unapproved purpose was not valid and sustainable.        The Respondent was

entitled to use the money towards his medical bills in any way he deemed

necessary as the money no longer belonged to the Appellant.

      Without even delving into the merits of the case, it is clear that the

Appellant committed a fatal irregularity sufficient to vitiate disciplinary

proceedings.   The record shows that pursuant to the arbitral award the

Appellant reinstated the Respondent on 23rd March 2011. The Appellant then

suspended the Respondent on the same date 23 rd of March, 2011.             The

suspension however was with effect from the 24th of March, 2009 the date when

Appellant initially terminated Respondent’s contract of employment, that is, the

suspension was with retrospective effect. Although the issue was raised by the

Respondent in his notice of response and heads, no explanation has been

tendered by the Appellant.


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      The Code of Conduct that is Statutory Instrument 301 of 1996 does not

provide for suspension with retrospective effect. Apart from that it is clear that

by suspending suspension with retrospective effect the Appellant had an ill-

motive. The employer was avoiding the obligation to pay the Respondent his

arrear salary/benefits from 24th March 2009 the date of wrongful dismissal to 23

March 2011 when he was reinstated.             The decision to suspend with

retrospective effect was in any event self-destructive to Appellant’s case.

Section 10 of the relevant Code provides that any proceedings commenced in

terms of the Code should be finalized within 14 days of commencement. A two

year gap between the suspension and the disciplinary hearing is by any

standards unacceptable. Having come to the conclusion that Appellant

committed a fatal irregularity sufficient to vitiate disciplinary proceedings, it

becomes unnecessary for this Court to consider the other procedural

irregularities raised by the Respondent or to delve into the merits of the appeal.



      In the circumstances the appeal ought to be dismissed. The decision by

the General Engineering Committee and indeed the decision by the Works

Council clearly cannot stand.      The Respondent shall be reinstated into

employment with effect from the date of the wrongful termination of contract,

being 24th March, 2009. The Appellant shall pay to the Appellant the salary and

benefits from that date to the date of this order. The Appellant shall, at its own

discretion, reinstitute fresh disciplinary proceedings in accordance with the

Code of Conduct in a procedurally correct manner. In the event however that

reinstatement is no longer an option the Appellant shall pay to the Respondent

damages in lieu of reinstatement the quantum of which will be agreed upon

between the parties, failing which either party can approach the Labour Court

for quantification.


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Makings and Partners Legal Practitioners, Representing the Appellant.



Mutamangira & Partners Legal Practitioners, Representing the Respondent.




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