Douglas Nyandoro v Unknown Respondent

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/185/16
HELD AT HARARE, 1ST MARCH, 2016
CASE NO. LC/H/581/14 (MTRE)
AND 18th MARCH, 2016
JUDGMENT NO. LC/H/185/16
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IN THE LABOUR COURT OF ZIMBABWE  	    JUDGMENT NO. LC/H/185/16

HELD AT HARARE, 1ST MARCH, 2016                  CASE NO. LC/H/581/14 (MTRE)

AND 18th MARCH, 2016

In the matter between:-

DOUGLAS NYANDORO		-		APPELLANT

This is an appeal against a determination by the Appeals Authority handed down on 11th June 2014 which determination upheld or earlier decision by the respondent’s Disciplinary Committee to dismiss the appellant from employment with effect from the 11th of June 2014.

The material background facts to the matter are as follows;

The appellant was employed by the respondent. At the material time of the commission of the misconduct he was engaged as a supervisor in the Sorting Section.

On the 20th of May 2014 the appellant was deployed on the main plant sorthouse. He was supervising a group of sorters from 14.00 hrs to 2300 hrs. His duties according to respondent included placement of sorters on glove boxes and monitoring of the sorting process. According to reports by a witness appellant was captured on CCTV standing at glove box number 2 monitoring the actions of one Mr Peter Gwatidzo, a sorter under his supervision. Mr Peter Gwatidzo was later caught on the CCTV footage hiding diamonds under a rubber lining. The respondent took issue with appellant’s decision to retain Mr Gwatidzo at the same sorting place for two consecutive days. This was contrary to a standing policy that sorters had to be constantly rotated. Mr Peter Gwatidzo having been randomly checked and found with 6 pieces of diamonds and other items such as razor blades, needle, sewing thread and super glue which are used to smuggle diamond pieces out of the sorthouse the respondent view was   appellant was guilty of misconduct.

The respondent levelled charges of contravention of Statutory Instrument 165 of 1992 Part 3, Section 4(d) in particular ‘theft or fraud’’ Section 4(h) i.e. gross incompetence or inefficiency in the performance of his work. In the alternative appellant was charged with contravention of Section 4(b) i.e. wilful disobedience to a lawful order given by the employer.

The appellant was suspended on the 24th of May 2014. He appeared before a Disciplinary Hearing Authority on the 27th  of May 2014. In the Disciplinary Hearing the Appellant was challenged on the aspect of his deviation from standard procedure by failing to rotate Peter Gwatidzo for three days. His response was that as  a Supervisor he had a discretion on the sorters sitting arrangements. He had in his discretion elected to retain Gwatidzo in the same position. The Disciplinary Committee also examined the CCTV footage which tended to show appellant’s movements on the date around the glove box area where Gwatidzo was working. In its conclusion the Disciplinary Committee found the appellant guilty on the charge of gross incompetence or inefficiency in the performance nature of his work for failure to control sorter Gwanzura’s sitting arrangements thus putting the respondent at risk of theft which then occurred on the 20th and 21st of March, 2014. The Disciplinary Committee after weighing mitigatory factors as against aggravatory failure then imposed the dismissal penalty.

The appellant was aggrieved and noted an appeal to the Appeals Officer on the 27th of May 2014. It is not necessary to regurgitate the grounds. The Appeals Officer through a letter dated 11th June 2014 dismissed the appeal. Still aggrieved the appellant then noted the present appeal with the Labour Court. The appeal has been noted on similar grounds to those that were placed before the Appeals. The grounds are as follows;

FAILURE TO AVAIL APPEAL’S COMMITTEE DISCIPLINARY MINUTES AND FAILURE TO GIVE ADEQUATE NOTICE BEFORE HEARING

The disciplinary committee so was the appeal committee grossly erred and misdirected themselves when they failed to avail disciplinary proceedings thereby undermining natural tenets of justice as well as the objective of coded to provide procedural fairness and fairness.

FAILURE TO CONSIDER MITIGATION

The appeal committee grossly erred and misdirected itself when it failed to consider strong mitigation issues. Mitigation is a strong principle of natural tenets of justice. The respondent ignored critical facts on mitigation which should have changed the verdict had the respondent considered them. The respondent just chose to confirm the dismissal without necessarily giving decisions for upholding such dismissal. See Annexure 4 the dismissal letter.

NATURE OF THE EMPLOYMENT

The appeal committee grossly erred and misdirected itself at law when it failed to consider that the disciplinary committee had reached wrong findings that the applicant had breached the core of an employment contract he had not signed. The applicant raised this issue as a ground of appeal Seep annexure 3 item on page 3. The respondent simply ignored these facts and went on to confirm the dismissal without giving reason. The respondent simply stated that the grounds of appeal could be sustained but failed to give reasons.

RESPONENT FAILED TO CONSIDER THE PRINCIPLE REGUALTING THE CHARGE OF ROSS INCOMPETENCE OR IN EFFICIENCY IN THE PERFORMANCE OF WORK AS A CHARGE

The applicant raised a ground of appeal that the disciplinary committee had not considered principles regulating a conditions required for this charge but respondent never considered such principles. The appeal committee failed to appreciate that decision for  a higher authority has a binding effect on the. See Labour Court Rules S.I. 59 of 2006 Rule 35 (1) and (2).

The appellant has largely relied on technical issues to challenge the decision by the Appeals Committee. It is however the position at law that for any procedural irregularity to vitiate disciplinary proceedings it has to be shown that the employee suffered prejudice. See Tichawana Nyahuma vs Barclays Bank (Pvt) Ltd 2005 (2) ZLR 445 (S).

I shall proceed to examine individually the issues raised. The appellant contended firstly that the Minutes of the disciplinary hearing were served late. This was according to him meant to delay and frustrate him. He actually crafted his appeal without the minutes. The appellant concedes that he did receive the minutes although they were received late. If indeed the appellant believed he was inconvenienced by the late receipt of the minutes he could have sought for a postponement of the appeal hearing. He clearly did not. The appellant has failed to establish what prejudice he suffered as a result of the breach. The ground should fail on this basis alone.

The appellant in his second ground raises the issue of the failure by the Disciplinary Committee to consider mitigation factors such as that he had a clean disciplinary record and had only been two months in the job as a supervisor sorter when the alleged misconduct took place. The record clearly shows the Appeals Committee did consider the issue of mitigation but came to the conclusion that because of seriousness of the offence which boarded on criminality and which went to the roots of the contract of employment no other penalty other than dismissal would suffice. This is a finding which this court cannot lightly interfere with in the absence of gross unreasonableness or misdirection.

The appellant in his third ground of appeal raises the issue that he had been engaged as a supervisor for sorters but was still undergoing probation period when the purported misconduct took place. He had however not signed the actual contract. The appellant is merely raising a red herring. Whether or not the contract had been signed at the material time is irrelevant. The appellant had been appointed to the position of supervisor. He was therefore aware of his duties and responsibilities. He was also aware of the operational procedures he had to follow to safeguard the interests of his employer. He however chose to deviate from these to his own detriment.

In his last ground of appeal the appellant alleges that the Appeals Committee failed to justify his conviction on the charge as the elements of the charge were not met. In particular he raised the issue the Appeals Committee disregarded the findings by the Disciplinary Committee that he could not as the supervisor have seen Gwatidzo illegal activities from the footage. The Appeals Committee’s finding was that appellant as the supervisor was aware of

the standard operating procedure. He was also according to their observation quite conversant with the procedure. The Committee noted that appellant was applying the standard operating procedure on the aspect of rotation of sorters after every sorting period except where it applied to Mr Peter Gwatidzo who as it was later established was stealing diamonds. It was on this basis that the Committee found him guilty on the charge of gross incompetence or inefficiency in the performance of his work. That finding was proper in view of the facts and evidence in the record.

The appeal is hereby dismissed with no order as to costs.

Mutamangira and Associates – respondent’s legal practitioners