Dominion Marketing v Tichaona Mushawembri

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/182/2016
HARARE, 2 MARCH 2016 &
CASE NO LC/H/1057/2015
18 MARCH 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/182/2016

HARARE, 2 MARCH 2016 &				      CASE NO LC/H/1057/2015

18 MARCH 2016

In the matter between

DOMINION MARKETING						APPELLANT

Versus

TICHAONA MUSHAWEMBIRI					RESPONDENT

Before the Honourable E T Muchawa J

For the Appellant       M Kavunika

For the Respondent    K Govo (Trade Unionist)

MUCHAWA J:

The respondent was employed by the appellant as a machine operator from 19 January 2009 to 28 February 2013, when he was suspended from employment.

The suspension letter states:

“Re:  SUSPENSION ORDER

Management has found it necessary to suspend you from duty and forbid you from attending your workplace with immediate effect. The reason for this suspension is due to a part of the machine that you are responsible for being intentionally damaged.

You shall be on unpaid suspension pending a full investigation and determination through disciplinary proceedings into whether or not you are guilty of the suspected contravention of the National Code of Conduct.”

Disciplinary hearing proceedings were held on 12 March 2013. The hearing minutes record that the respondent was being charged under S I 15 of 2006 section 4 (c) being wilful and unlawful destruction of the employer’s property; and section 4 (b) wilful disobedience to a lawful order.

At the hearing, the respondent’s representative questioned the levelling of the new charge of wilful disobedience to a lawful order as it had not been contained in the suspension letter. The committee ruled that the charge was never changed and that it was just the same charge which had led to the suspension.

The letter of dismissal is quoted below:

“Re: DISMISSAL

You were requested to attend a hearing under the serious misconduct section of the company’s formal disciplinary procedure to discuss the following—

With reference to S I 15 of 2006 section 4 subsection c and b, where c is being ‘wilful and unlawful destruction of the employer’s property’ and b is being ‘wilful disobedience to a lawful order.’

It is alleged that you refused or decided not to give a written report as requested. It is alleged that you were asked twice to come up with a report. The first request was around 09.00 hours before tea time and the second one was around 10.30 hours and it was stated to you that the report was to be submitted before lunch time, but you chose to go for lunch without submitting the required document. You were further called again around 13.45 hours to submit the report but still you refused. With reference to SI 15 of 2006 section 4 sub section b, you are accused of ‘wilful disobedience to a lawful order’.

Given the circumstances I believe it is appropriate to dismiss you from the company’s employment and this letter is confirmation of this fact. You are therefore dismissed with immediate effect 14 March 2013.”

The respondent who was aggrieved lodged a complaint of unfair dismissal. Failing conciliation, the matter was referred to arbitration.

The arbitrator found that the appellant had suspended the respondent on a charge which was different from the one he was dismissed for. This procedure was found to have been flawed resulting in an unprocedural disciplinary process rendering it a nullity.

It was further found that the charge of wilful destruction to the employer’s property could not stand as it was accepted that the machine in question was used by all staff members and anyone could have caused the damage.

The appellant impugns the arbitrator’s findings on appeal before me.

The issues arising from the lengthy grounds of appeal are:

That the respondent was properly charged and dismissed therefore the proceedings were not a nullity.

That the charge of wilful disobedience did not emanate from the hearing as the respondent was ordered twice to write a report and he refused hence the charge.

That the respondent was given a chance to defend himself.

That the respondent should not escape the consequences of his misdeeds because of a procedural irregularity.

The appellant withdrew ground 1.8 of its appeal which alleged that the arbitrator had no jurisdiction upon being asked to substantiate it.

The appeal is opposed and I will deal with the emerging issues in turn below. I believe the issues can easily be resolved by considering the following:

The charge(s) levelled against the respondent upon suspension.

Whether there was a subsequent notification of the charges before the hearing.

The charges on which the disciplinary hearing was based.

The basis of the dismissal

Effect thereof.

What charge was levelled against the respondent upon suspension?

I have already quoted the letter of suspension above. It states clearly that the reason for the suspension is that part of the machine the respondent is responsible for was intentionally damaged.

Though this is not stated in the letter one can deduce that the charge, in terms of SI 15 of 2006 was in terms of section 4 (c) being wilful and unlawful destruction of the employer’s property.

Whether there was subsequent notification of the charges before the hearing?

Neither party pointed to any further notification of the charges against the respondent prior to the disciplinary hearing on 12 March 2013.

What charges were preferred at the hearing?

The minutes of the hearing on record page 17 show that there were two charges preferred at the hearing being:

Wilful and unlawful destruction of the employer’s property (section 4 (c) of the Code), and

Wilful disobedience to a lawful order (section 4 (b) of the Code).

The basis of the dismissal

The letter of dismissal quoted above shows that the respondent was primarily dismissed for wilful disobedience to a lawful order. The other charge is mentioned only as one of the reasons why the disciplinary hearing was held.

I find therefore that the respondent was charged with wilful and unlawful destruction of the employer’s property but was dismissed for wilful disobedience to a lawful order. The latter charge was only preferred at the hearing, and not earlier.

Legal effect

The respondent is correct to point to section 6 (4) (a) of Statutory Instrument 15 of 2006. This section entitles an employee to three working days’ notice of the charges he is facing before the actual hearing date.

As the respondent only became aware of the charge of wilful disobedience to a lawful order at the hearing, he was denied the right to prepare an adequate defence to this charge. (See Rwodzi v Chegutu municipality HH 86-03 at p 3).

It was also held in the cases of Brake & Clutch v Nyama SC 42-01 and Standard Chartered Bank Zimbabwe Limited v Matsika 1996 (1) ZLR 123 (S) that the grounds for dismissal must not be different from those in the suspension and that it is incompetent to charge an employee of offence A to be convicted of offence B.

In casu it is clear that the procedural irregularity rendered the proceedings null and void as the respondent was prejudiced by the ambush at the hearing by the introduction of a new charge. In the case of Tichawana Nyahuma v Barclays Bank SC 67-05 it was held that it is not all procedural irregularities which vitiate proceeding. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity, it must be shown that the party concerned was prejudiced by the irregularity.

The case cited by the appellant of Air Zimbabwe (Pvt) Ltd v Mnensa & Anor SC 89-2004 in which the Supreme Court ruled that a person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee but only because he is innocent, is not applicable in casu.

This is because the minutes of the disciplinary hearing do not show the appellant leading evidence and establishing that the respondent had wilfully and unlawfully destroyed the employer’s property. Rather, the new charge of wilful disobedience to a lawful order is what was prosecuted. In his appeal before the Managing Director, the respondent avers that the machine was used by everyone and he could not be held accountable for the damage. That position was not refuted. In my opinion, there is no basis for holding that he was guilty of this charge. Even the dismissal letter was based on the new charge.

In the circumstances the conclusions of the arbitrator cannot be impugned.

Accordingly the appeal is dismissed for lack of merit.