DDNS Security Operations t/a Securico Security Services v Beaven Denhere

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/32/2016
HELD AT HARARE, 15TH SEPTEMBER 2015
CASE NO
JUDGMENT NO. LC/H/32//15
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/32/2016

HELD AT HARARE, 15TH SEPTEMBER 2015		CASE NO LC/H/245/14

& 22 JANUARY 2016

In the matter between:

DDNS SECURITY OPERATIONS 			Appellant

t/a SECURICO SECURITY SERVICES

AND

BEAVEN DENHERE					Respondent

Before The Honourable Manyangadze, Judge

For Appellant	     		Mr. M. Kupfuwa (HR Manager)

For Respondent   			Ms M. Mukucha (Trade Unionist)

MANYANGADZE, J:

This is an appeal against an arbitral award handed down on 7 March 2014, in terms of which the dismissal of the respondent from the employment of the appellant was held to be unlawful.

The background to the matter is that the Respondent was employed by the Appellant as a security guard.  On 7 October 2012, he was on duty at the Kingdom Bank 1st Street ATM machine, when the machine was tampered with by one of the customers.  The incident led to the Respondent facing charges of gross incompetence, inefficiency and negligence, in terms of the National Employment Council for the Commercial Sectors Code of Conduct. (NECCS Code).

On 23 October 2012, the Appellant found the Respondent guilty as charged.  It dismissed him from employment with effect from 8 October 2012, the day when he was placed on suspension.

The Respondent appealed to the Designated Agent for the National Employment Council for the Security Sector, who issued a Certificate of no Settlement and referred the matter to arbitration.  This resulted in the arbitral award which is the subject of this appeal.

The papers filed erroneously refer to the Appellant as Applicant. The record shows that a Notice of Appeal was filed against the arbitrator’s decision.  It appears the Appellant was confused as to whether it was filing an appeal or an application.  It attached an affidavit to its Notice of Appeal, wherein is stated the grounds of appeal.

These read as follows:

“1.	Registration of a new NEC does not vary the scope of another NEC

Applicant is of the firm belief that in terms of the provisions of the Labour Act the mere registration of a new NEC does not have an automatic effect of altering the registration scope of another NEC.

The Honourable Arbitrator erred in ruling that the registration of the new NEC – Security Industry automatically rendered respondent’s membership to the NEC – Commercial Sectors null and void.

The Honourable Arbitrator’s error stems from his failure to take cognizance of the provisions of Section 61 (1) of the Labour Act which stipulates that the scope of an employment council is only varied or altered when the Registrar makes an “alteration”” on the certificate of registration of the NEC concerned which alteration is made in terms of Section 61 (4).

We challenge the respondent to submit specific citations of the statutory provisions or case laws that support their assertion that the registration of a new NEC automatically varies the scope of another NEC – failure which the Honourable Arbitrator’s ruling that the applicant automatically ceased to be a member of the NEC – Commercial Sectors at the registration of the NEC – Security Industry should be set aside.

A Code of Conduct remains valid until the scope of an NEC is varied

Applicant contends that a code of conduct remains valid until the scope of its NEC is varied.  At the material time that respondent was convicted and dismissed the scope of registration of the NEC – Commercial Sectors had not been varied and applicant’s membership to that NEC was still valid and lawful hence the application of the Code of Conduct for the Commercial Sectors of Zimbabwe by the applicant was also valid and legal.

Designated Agent of NEC Security Industry had no jurisdiction

Applicant posits that the matter was wrongly referred to the NEC Security Industry yet the disciplinary proceedings were held under the Code of Conduct for the Commercial Sectors of Zimbabwe.  Applicant was a valid member of the NEC Commercial Sectors and was obligated to apply the code of conduct for the Commercial Sectors on the respondent.

In that regard respondent erred by referring the matter to a designated agent of the NEC Security Industry (despite written advice) instead of using the appeal provisions of the NEC Commercial Sectors.  For that error the order by the Honourable Arbitrator should be declared null and void.

Reasons for arriving at judgment are so incoherent that they render judgment invalid

In justifying his judgment the Honourable Arbitrator cited a number of case laws upon which his judgment relies.  His judgment is that the appellant used a wrong code of conduct hence the irregularity was fatal.

However his paraphrasing of these case laws is so incoherent that it is difficult to understand his reasons for the judgment or how these case laws relate to his judgment.

He also makes an assertion that all the cases he cited related to “failure to use the correct code” when in actual none of these cases relate to then use of a wrong code of conduct.  In the regard appellant strongly objects to the arbitrator’s assertion on page 3 of his judgment under “Analysis of Evidence” where he states – we quote “Just like in the above cites cases the failure to use the correct code render (sic) the dismissal invalid.”  It is a patent untruth that the cases cited relate to use of the wrong code of conduct.  This factual error contributes to the incoherency of this judgment.

Appellant therefore submits that the incoherency of the reasons for the judgment renders the judgment itself to be fatally defective therefore it should be set aside.”

A reading of the arbitral award shows that the arbitrator did not dispose of the matter on the merits.  He set aside the Respondent’s dismissal on the basis that the Appellant disciplined the Respondent using the wrong code of conduct.  On page 2 of the arbitral award, it is stated:

“I am satisfied that the respondent used the wrong code, once the Security subsector became a fully-fledged industry it ceased to be governed by laws governing the Commercial Sectors.  Due process was therefore not followed in dismissing the claimant.”

That was the sole basis of the arbitrator’s decision.  The appellant is essentially attacking that decision.  The appeal therefore boils down to that one issue whether or not the wrong code of conduct was used in the disciplinary proceedings that led to the dismissal of the respondent from employment.

The Appellant’s position is that the Respondent was correctly dismissed in terms of the NECCS Code.  The Appellant averred that the security industry was a sub-sector under the Commercial Sectors.  Until the promulgation of the National Employment Council for the Security Industry’s Collective Bargaining Agreement, Statutory Instrument 76 of 2012, the Security Industry, as a sub-sector of the Commercial Sectors, fell under the NECCS Code.

The appellant, in particular, averred that the scope and application of the NECCS was only varied on 22 October 2012.  That is the date the NECCS Code ceased to apply.  Such variation was done in terms of section 61 of the Labour Act [Chapter 28:01] (the Act).  Until such variation was done, the NECCS continued to apply to the Security Industry, notwithstanding the registration of the NEC for the Security Industry on 1 June 2012.

Section 61 (1) of the Act provides:

Variation of registration of employment councils

Whenever the Registrar is satisfied that –

any employment council is not sufficiently representative of the undertaking or industry in respect of which it is registered; or

any branch or section of the undertaking or industry in respect of which an employment council is registered  has been included by oversight or mistake or that an employment council is not sufficiently representative of any such branch or section; or

the character of any undertaking or industry in respect of which an employment council is registered is such that a particular branch or section thereof should no longer be included un such undertaking or industry; or

it is in the interests of employers, employees or the public for a particular or section of any undertaking or industry in respect of which an employment council is registered, to form a separate employment council for that branch or section; or

any branch or section of an undertaking or industry should be included within the undertaking or industry for which an employment council is registered;

he may, after consultation with the employment council, vary the coverage in respect of which the employment council is registered and make the necessary variation in his register.

The Appellant contended that until the processes outlined in the cited provisions were done, the NECCS applied to the applicant.  There was therefore nothing irregular about the respondent being charged under the NECCS Code, as his misconduct arose at the time that Code still applied.  This point is clearly expressed in paragraph 2 of the appellant’s grounds of appeal, supra.

The Respondent, on the other hand, insisted that the NEC Security Industry superseded the NECCS, upon the former’s registration on 1 June 2012.  That was the sole basis of the Respondent’s argument.  He did not address the point raised by the appellant, on the applicability of the NECCS code pending amendment or variation of the scope of the NECCS, which variation was done on 22 October 2012.

It is common cause that the Appellant applied the NECCS Code as a sub sector of the commercial sectors, prior to registration of the NEC Security Industry in June 2012.  The Respondent did not take any issue with that.  It was also not disputed that the scope of the application of the NECCS was varied on 22 October 2012.  The Respondent did not proffer any response to the point made by the appellant based on section 61 of the Act, on the application of the NECCS code before variation of the scope of the NECCS.

The Respondent also relied on the fact that he was dismissed on 24 October 2012, which was after the variation referred to.  This, it seems, was in a bid to counter the averment that the NECCS was still applicable.  The record however, shows that the misconduct was allegedly committed on 7 October 2012, and the Respondent was suspended on 8 October 2012.  Thus, the disciplinary proceedings commenced on 8 October 2012, before the variation of the scope of the NECCS.

It was submitted on behalf of the Appellant, at the hearing of the matter;

“Respondent does not address the legal position when two NECS are lawfully in existence and have the same scope.  Failing to address that issue means Respondent does not have any defence to our interpretation of the law.”

What this means is that there was, essentially, no response to a pertinent aspect of the appeal. That aspect was, in fact, the gravamen of the appeal.  The Appellant used the NECCS Code since, in terms of section 61 of the Act, its application had not yet been excluded by the variation of the scope of the NECCS.  The uncontroverted submission was that this variation was effected on 22 October 2012.  In the circumstances, the appeal must succeed.

As already indicated, the arbitral award did not deal with the merits of the dispute.  The arbitrator disposed of the matter solely on the basis of the applicability of the code used.  In my view, the proper course of action is to set aside the award and remit the matter to the same arbitrator, for its disposal on the merits.  The respondent will revert to his status prior to the arbitral award, which was that of a dismissed employee. The lawfulness of such dismissal is what the arbitrator will determine, after considering the parties’ submissions on the merits.

In the result, it is ordered that;

The appeal be and is hereby allowed.

The arbitral award granted in favour of the respondent on 7 March 2014 be and is hereby set aside.

The matter be and is hereby remitted to the same arbitrator, for determination on the merits.

Each party bears its own costs.