Conellius Funu v Darleen Investment (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/73/16
HELD AT HARARE 9TH JULY 2015
CASE NO
JUDGMENT NO LC/H/73/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/73/16

HELD AT HARARE 9TH JULY 2015				CASE NO LC/H/354/14

& 19TH FEBRUARY 2016

In the matter between:

CONELLIUS FUNU					Applicant

And

DARLEEN INVESTMENT (PVT) LTD			Respondent

Before The Honourable L Kudya, Judge

For Applicant			T Mupeti (Unionist)

For Respondent 		S Ushewokunze (Legal Practitioner)

KUDYA, J:

This matter was set down as an appeal against the decision of the National Employment Council for the commercial sectors hereinafter referred to as the NECCS.  Appellant had been found guilty of inciting fellow employees to be violent against the employer at a time when they were being given their salaries.  The dismissal decision was arrived at in his default.  He was aggrieved by the dismissal and appealed to the Local Joint Committee (LJC).

The Local Joint Committee upheld his dismissal.  This prompted him to appeal to the NECCS which also upheld his dismissal.  It is the appeal against the NECCS decision which is the subject matter of this judgment.  The appeal grounds filed of record were so inelegantly crafted despite the fact that appellant was represented by a unionist.  Being that as it may the appellant’s main contention on appeal was that he was not the one who had argued with the employer hence he did not incite any riotous behaviour.

Further to that it was his contention that instead it was his colleague who argued with the employer over his salary.  He stated further that he attended on the day of the hearing and sought an adjournment of the matter since his representative had failed to attend that day.  He argued that no hearing took place on that day and to his surprise he was given a letter of dismissal without being allowed to defend himself.  In the result he prayed that his dismissal be set aside, the NECCS decision be set aside, and that he be reinstated.    In response to the appeal the respondent maintained that appellant was suspended and notified of the hearing but he did not attend the disciplinary hearing.

It indicated that the disciplinary committee deliberated the matter in his absence and returned a default judgment.  To that end it referred to the minutes of the disciplinary meeting conducted in the appellant’s absence.  The respondent also maintained that the fact that both the Local Joint Committee and the NECCS upheld his dismissal demonstrated that indeed he was guilty and deserved to be dismissal.  It stated that all the proper procedures were followed in the appellant’s case and prayed that the appellant’s dismissal be upheld by this court.

The test to be applied in such appeals is clear see Nyahando v Hokonya & Others 1997 (2) ZLR 475 (SC).  In essence the appellate court is not invited  to substitute its discretion for that of the lower tribunal but rather to come in only where it is clear that the exercise of discretion by the tribunal below it demonstrated gross unreasonableness or malice.

Before applying the law to the facts of the instant case it is important to note the following:

It is not contested that during salary payments by respondent a misunderstanding ensued between the respondent representative Karedzera and one Tichaona Love who was the appellant’s workmate.  The misunderstanding ended up with Karedzera at police on allegations of assaulting Tichaona.

It is also common cause that the decision to dismiss appellant was made in his absence what is however not clear it whether indeed he availed self and sought the deferment of the matter as he says or whether he did not at all attend as indicated by the respondent.  Another dimension to this matter is whether his representative indeed sought a postponement of the matter and duly advised appellant thus explaining the appellant’s default on the hearing date.

Given the fact that the dismissal was birthed in appellant’s default it is thus clear that there is no way the NECCS or the Local Joint Committee could determine whether indeed appellant had incited violence as alleged or not.  This is so even if respondent tendered to the Local Joint Committee what it termed the record of proceeding which in turn appellant argues was ill recorded.  In particular the argument about the record was that a certain Kapurura was recorded as having been part of the panel yet when she gave evidence she professed ignorance at first.  She argued outright that she was not part of the committee and later on stated that she could have been part of the hearing but due to fact that she sat on so many disciplinary hearings at respondent’s she could not recall whether she did sit on appellant’s case.   She asked to refresh her memory from the hearing notes after which she then concluded that she must indeed have sat in appellant’s case.

The law is settled that if a party chooses to absent self

from a hearing for no good reason and his case is heard to his detriment he shall not in that case cry foul. See Moyo v REA SC-4-14 As indicated earlier on though inelegantly crafted the appellant’s appeal speaks mainly to the argument that he was denied the right to be heard and it is primarily that point which should decide the matter.  It would be an exercise in futility to try and figure out whether indeed respondent was correct to hold that the appellant did incite violence.  This is so because all that is on record is what the respondent recorded in appellant’s absence.  As such there was no correlative response to the allegations to either confirm or deny the allegations.

The right to be heard argument is what consequently led both parties to call evidence.  For the appellant’s part the witnesses who testified were adamant that the disagreement was between respondent and Tichaona and that appellant at no time incited violence as alleged.  The appellant’s witnesses also denied fact that appellant deliberately absented self from the shop floor level hearing.  On the other hand the respondent was adamant that there was such incitement and that the appellant deliberately absented self from the hearing.

The court found it difficult to reconcile that evidence with that of the unionist who claimed respondent had agreed to a postponement of the matter and that he had gone on the tell appellant as such.  This then explained the failure by appellant to attend the further.  The evidence of Kapurura’s evidence did not assist the case as she vacillated from one position to the other.  At the end of the day the court was left wondering as to what really happened vis the hearing.

It was therefore highly irregular for the Local Joint Committee and NECCS to conclude that appellant was indeed guilty when it was not clear how he failed to defend self.  In the court’s view it was a serious misdirection on the part of the 2 appellate tribunals to conclude the matter on the merits of evidence which was never tested by appellant’s input.  In the result the verdict and penalty were not arrived at in accordance with real substantial and procedural justice.  In the result the appeal ought to succeed.  What  cannot be concluded is whether appellant acted as alleged or not.  To right that calls for the test set out in Nyahuma v Barclays Bank (Pvt) Ltd 200 (2) ZLR 443 of how to deal with procedural irregularities.  These have to be put right.  A referral of the matter to be dealt with de novo  in a procedurally correct matter would be just.

IT IS ORDERED THAT

Appeal being merited it be and hereby succeeds.

The matter is remitted to the employee to reconvene the disciplinary hearing in a procedurally correct manner within 3 months from date of receipt of this judgment failing which the appellant would be deemed to be reinstated with full pay and benefits or to be paid damages in place of reinstatement.

Each party bears own costs.

Ushewokunze Law Chambers,  respondent’s legal practitioners