Judgment record
Edson Bere v Concern Worldwide Zimbabwe
[2013] ZWLC 153LC/H/153/20132013
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/153/2013
HELD AT HARARE ON 8th MARCH, 2013 CASE NO. LC/H/376/2012
In the matter between
EDSON BERE - Appellant
And
CONCERN WORLDWIDE ZIMBABWE -Respondent
Before The Honourable L. Kudya, President
For Appellant - Ms. R Chibaya (Legal Practitioner)
For Respondent - Mr. G Makings (Legal Practitioner)
KUDYA, L.
This is an appeal against the decision of the N. E. Appeals Committee
which upheld the Appellant’s dismissal by the Respondent on gross misconduct
charges of failing to obey a lawful instruction in contravention of the National
Employment Code of Conduct for Welfare and Educational Institutions.
The facts of the case are as follows: Appellant was employed by the
Respondent as a driver. The Respondent’s Transport Manual 2008 provided as
follows “Concern Worldwide staff can only use transport for work related
activities and family members are not allowed to be transported without
the express written agreement of the Company Director “
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On 17 September 2010, Appellant was suspended without pay or benefits
pending the outcome of a disciplinary hearing into allegations of gross
misconduct it being alleged that, he had breached schedule 4 of the National
Employment Code of Conduct for Welfare and Educational Institutions .The
facts of the charge in
JUDGMENT NO. LC/H/153/2013
question were that on 31st August 2010 contrary to the transport policy for
Concern he had carried his two children in the Concern vehicle without the
express written authority of the Concern Director.
On 27 September 2010 he was brought before the Concern Disciplinary
Committee where the charges of breaching the above stated code of conduct
were read out to him and deliberated. From the deliberations, it was concluded
that he was guilty. The guilty verdict was followed by a dismissal penalty.
He appealed to the Chief Executive Officer who upheld the guilty verdict
and the dismissal penalty. Aggrieved by this decision, he appealed to the NEC
Appeals Committee for the Education and Welfare Institutions. The N.E.C also
upheld the guilty verdict and the dismissal penalty. Dissatisfied with the N.E.C’s
decision he has now appealed to this court against the verdict and the penalty
which was meted out on his case.
His appeal is based on what appears below:
1. The N.E.C erred by upholding the decision of the Country Director yet the
record of proceedings showed that the Respondent had opted for the drastic
charge of willful disobedience to lawful authority yet the facts of the case were
consistent with the lesser offence of improper use of company property.
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2. The N.E.C. erred by accepting that the charge of misconduct was properly
formulated yet the record of proceedings shows that the charge was
misleading to the extent that when Appellant apologized that he had carried his
children without permission, he did not necessarily mean that he was
admitting to the charge of willful disobedience to a lawful order.
JUDGMENT NO. LC/H/153/2013
3. The NEC erred in failing to appreciate that the Respondent’s policies and
manuals contradicted the NEC Code of Conduct to the extent that the level
which he was charged with does not appear in the Concern manual.
No formal response was filed by the Respondent if the index of the
record is anything to go by. On the title Notice of response the index refers to
page 7 and 8 which effectively is the decision in the NEC Appeals hearing on the
matter. If this decision is the Respondent’s response it is to the following effect:
1. The Concern manual explicitly sets out that staff is not allowed to carry family
members without the express written authority of the Country Director.
2. Appellant did not deny that he carried his children without authority.
3. In the presence of the transport manual it means that, the Appellant was
correctly charged for willful disobedience to a lawful order given by a person in
authority.
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In summary form, the Respondent’s response is that the NEC correctly
upheld the guilty verdict on the charge of willful disobedience to lawful
instructions and the attendant dismissal penalty which was visited on the
Appellant.
It is common cause that the Appellant ferried his children contrary to
what is contained in the transport manual that is, he ferried his children without
the requisite written authority of the Country Director. The issue at stake is
whether the Appellant was properly charged. If he was, can his response during
the hearing be said to be a proper admission to the charge in question?
If he admitted the charge correctly the other issue to be determined is
whether on the totality of the facts the dismissal penalty was appropriate? This
court has been called upon to decide whether or not on the totality of the facts
of the
JUDGMENT NO. LC/H/153/2013
matter, it can be said that the NEC Appeals Committee erred or not by
upholding the verdict and the dismissal penalty.
The law is settled as to when the Appellate court can interfere with the
findings of a lower tribunal in the exercise of its discretion (See case of
Nyahondo vs Hokonya and others 1997 (2) ZLR 475 (SC))
Judging from the above case, it is clear that where the exercise of the
lower tribunal’s discretion leads to a glaring absurdity or can be calculated to
constitute bias or malice the appeal court is allowed to upset that tribunal’s
decision. Applying this principle to the facts of the instant appeal, the question
to be answered is whether it can be said that the lower tribunal exercised its
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discretion well. Can it be concluded that the Appellant was irregularly charged
and penalized
Concerning the issue of wrong charges, the law is clear that where the
employer prefers a wrong charge against an employee that is fatal to all the
proceedings in a particular matter. It is an irregularity which goes to the root of
the case and the Appellant would be entitled to his release from anything
flowing from the invalid charges (See the case of Standard Chartered Bank vs
Matsika 1996 (1) ZLR 123 (S)
With respect to the particular grounds of appeal it is worth noting how
willful disobedience is defined in the case of Matereke vs CT Bowring and
Associates Pvt Ltd 1987(1) ZLR 207 where the headnote of that case states the
following states the following:
“--willful disobedience of a lawful order given by the employer justifying summary
dismissal of an employee-----must be such disobedience as to be likely to undermine
the relationship between the employer and employee------must be such
disobedience going to the root of the contract of employment . Knowledge and
deliberateness and an intention to disobey must be present and the disobedience must
JUDGMENT NO. LC/H/153/2013
be serious and not trivial. The test whether the employee’s willful disobedience is a
breach going to the root of the contract is an objective one and it need not be shown
that, subjectively, it evinces an intention on the employee’s part to repudiate his
contract of employment.”
It is clear from this definition that, there must be some legal and
reasonable instruction which the Appellant is obliged to follow which he does
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not. If that happens then it is said that the Appellant has disobeyed a lawful
instruction.
In the instant case, the Concern Transport Manual provided that if an
employee was given written leave by the Director to ferry his family he could do
so. In this respect there is no lawful instruction which the Appellant can be said
to have breached. What was critical was that, he should have obtained written
leave to ferry his children. If he failed to do so can it be said that he disobeyed a
lawful instruction?
In any event, it is patently clear form the record of the Disciplinary
Committee that it was unsure of what it was charging the Appellant with. At
some point after the suspension charges had been read out to the Appellant
one of the panelist one Nelly asked whether the charge was clear. It was
recorded under House that, charge was clear and” we will deliberate on the
type of charge given later “.
Thereafter Appellant was just asked whether he was aware of “our
policy” to which he responded that he had no additional comments. Two lines
earlier on he had apologized for carrying the children without permission. The
above exchange demonstrates that there was no clarity to the charge which the
Appellant was facing.
In any event, it would have been an abuse of the disciplinary powers for a
Disciplinary body to want to deliberate the correctness of the charge after
finding
JUDGMENT NO. LC/H/153/2013
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the Appellant guilty of some charge which it had already put to him. What
Appellant apologized for which the Committee took as an admission of willful
disobedience are
two issues which are clearly at variance.
It is clear that there was no nexus between the allegations of willful
disobedience and the facts of what Appellant did and apologized for. As
correctly observed by the Appellant in grounds 2 and 3 of his appeal it is clear
that, what the Respondent was concerned with was that there had been a
breach of its transport manual by the Appellant. How that got elevated to willful
disobedience as defined in the NEC code of conduct is not clear from the
record.
Failure to seek permission to ferry one’s children in a company vehicle
does not come anywhere nearer than what is contemplated by a charge of
willful disobedience as stated in the case of Matereke (Supra).
The court is satisfied that NEC misdirected itself by upholding the verdict
on the charge which was at cross purposes with the facts and the Appellant’s
apology. As has already been stated the defectiveness of a charge goes to the
root of the entire proceedings attendant to it. Nothing can flow from the
defective charge in question.
The court is satisfied that the Appellant was wrongly charged and his
apology was wrongly taken as an admission to willful disobedience to a lawful
instruction. If the Respondent wanted to charge the Appellant with a breach of
its transport manual it should have done so appropriately not to borrow the
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disobedience to a lawful instruction offence which is inconsistent with its
manual.
The court is persuaded that this is a clear case where the NEC
misdirected itself by upholding the verdict and penalty. Suffice to state that the
penalty of
JUDGMENT NO. LC/H/153/2013
dismissal is not peremptory even where it is stated as an option [See case of
N.E.I Zimbabwe vs Makuzva LC/H/248/04]
The tribunal still has the discretion to mete out a lesser penalty where the
facts of the case demand such. This court will however not labour much in
deciding whether ferrying one’s own children without authority can be
construed to be so gross as to warrant one’s dismissal. That would only have
been incidental if this court had ruled that Appellant was correctly found guilty.
Since it has already ruled that the charge was irregular, suffice therefore to
state that delving deeper into the question of the propriety of the punishment
would only be an academic exercise which would serve no meaningful purpose.
The court is satisfied that, this is a good case for an appeal. It should
accordingly succeed.
It is ordered as follows:
1. The appeal being with merit be and is hereby upheld with costs.
2. The N.E.C‘s decision is accordingly set aside and in its place the following is
substituted:
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That Appellant be reinstated to his original position without any loss of
pay or benefits from the date of his suspension. If reinstatement is no longer
tenable the Appellant is to be paid damages in place of reinstatement. Parties
are to agree on the quantum failing which; they are free to approach this court
for quantification.
L. Kudya _______________
President-Labour Court
Muunganirwa and Company –Appellant’s Legal Practitioners
G .Makings -Respondent’s Legal Practitioners
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