Erica Nyangoni v Mutare Bottling Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO MC/26/2013
HELD AT HARARE ON 31 ST MAY &
JUDGMENT NO. MC/26/2013
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IN THE LABOUR COURT OF ZIMBABWE	           JUDGMENT NO MC/26/2013

HELD AT HARARE ON 31ST MAY &

13th SEPTEMBER 2013	                          CASE NO LC/MC/34/10

In the matter between

ERICA NYANGONI			–		Appellant

And

MUTARE BOTTLING COMPANY   –		Respondent

Before The Honourable L.Kudya, President

For Appellant: Mr C. Ndlovu (Legal Practitioner)

For Respondent: Mr D. Tandiri (Legal Practitioner)

KUDYA, L.

This is an appeal against the decision of the Respondent’s Appeals Committee which upheld the dismissal of the Appellant on charges of assaulting a fellow employee.

Facts of the case are that, on 30th March 2010 Appellant who was in the employ of the Respondent company as a Quality Assurance Manager came into contact with one Marlon Muponda a General Hand also employed by the Respondent Company in circumstances where it was concluded that she assaulted Marlon.

When Marlon took up the assault allegations with the Respondent Company, the Appellant was brought before a Disciplinary Committee which found her guilty of the misconduct complained of. She was consequently discharged from her job. Aggrieved by her dismissal she appealed internally without success.

It is against the internal Appeals Committees decision that she has now appealed to the Labour Court. Her prayer is that her dismissal be set aside. In its place she prays that the Court reinstates her to her original position with full pay and benefits. Alternatively she prays that she be awarded damages in place of reinstatement if same is no longer possible.

Her basic grounds of appeal are the following;

Record of proceedings given to Appellant is not a true reflection of what transpired at the disciplinary hearing. In particular, the record falsely stated that the Appellant had said she was happy with the composition of the panel yet she had objected to some of the panelists and her objection was over ruled.

The Appeals Committee should not have confirmed the Appellant’s dismissal because Appellant had not been given a chance to present her full defense at that initial hearing. To that extent she was denied a fair hearing.

The Appeals Committee should not have dismissed the objection to the composition of the panel since Karimatsenga who chaired the panel had been involved in a misunderstanding with the Appellant before. In particular, he had been accused by Appellant’s lawyers of having perpetrated an unfair labour practice on the Appellant which matter ended up at Arbitration. To that extent, Karimatsenga he should have recused himself as he demonstrated unmitigated bias against the Appellant.

The Appeals Committee should not have confirmed the Appellant’s dismissal as there was no straight forward evidence that the Appellant had assaulted Marlon. In particular, the witnesses’ testimonies contradicted in a number of material respects like the duration for which Marlon owed the Appellant the debt, the number of blows allegedly inflicted on Marlon and the tearing/ripping of the shirt which Marlon had on.  At best the evidence pointed to a threat of an assault not an assault per- se.

In response, the Respondent Company maintained that;

The record is a true reflection of what transpired at the Disciplinary Hearing. Both the Appellant and Respondent’s representatives duly signed same as confirmation of the accuracy of the minutes in question. Furthermore, Appellant did not raise any objection to the composition of the Appeals Committee and if that was done by her or her legal representative then the onus is on them to prove that.

Appellant was given ample opportunity to present her case. In particular, she gave a written defense outline and had the opportunity to cross examine all the witnesses who were called by the Respondent. She was also given the chance to present her mitigation. She was thus afforded a fair hearing and her right to be heard was thus observed and a decision was made after she had been heard.

Appellant never objected to the composition of the panel. In fact the alleged unfair labour practice was not between Appellant and Karimatsenga but rather between Appellant and the Respondent company. Respondent was cited as a party to the unfair labour practice and not Karimatsenga. In any event, the unfair labour practice was dismissed by the Arbitrator. The allegation of bias on the part of the Chairman of the Appeals Committee is thus an after-thought raised to bolster the appeal by the Appellant.

Ample evidence was led to prove the Appellant’s guilty. All the essential elements of assault were proven on a balance of probabilities. Her conduct was contrary to the conditions of her contract.

The Appeals Committee therefore properly confirmed Appellant’s guilt and dismissal. In the result, the Respondent prayed that the appeal be dismissed with costs for lack of merit.

Before dealing with each of the grounds of appeal in turn it is important to set out the background of the appeal. Appellant instituted this appeal in July 2010 and the Respondent filed its response in August of the same year.

Thereafter the Appellant did nothing to have her appeal heard. She did not file her Heads of Argument as required by the Rules of this Court. This prompted the Respondent to file a Chamber Application to have the appeal dismissed in terms of Rule 19(3) (a) Labour Court Rules for non compliance with the requirement to file Heads of Argument.

One of the points which therefore appear in the Heads of Argument by the Respondent and as a point in limine in its response to the appeal was that the appeal was improperly before this Court for want of compliance with the Rules. Respondent thus prayed that the appeal be dismissed on that basis alone.

On the set down date of this appeal the Court enquired about the point in limine and the Chamber Application. Both parties agreed that the matter needed to be heard on the merits so that it could be seen to finality. To that extent they both agreed that the non-compliance with the Rules which had occurred in the matter be condoned so that the matter could be concluded on the merits.

In the result the judgment was reserved to 31st May 2013 a date by which if the parties felt needed to make oral submissions would do it by then failing which, the matter would be ruled on basing on all the documents filed of record. It is therefore on the basis of the documents filed of record that this judgment was written.

It is also worth noting that the facts of the matter are mainly not common cause. This is so because it is the disagreements on what really happened on the matter in question that the instant appeal was born. It is however worth noting for completeness of record that it is not disputed that between the Appellant and Marlon there was an issue of an outstanding debt.

In relation to the payment of that debt, Appellant got into contact with Marlon in circumstances which gave rise to the conclusion that she had assaulted Marlon. The only issue from a factual perspective is whether indeed Marlon was assaulted by the Appellant? If he was, was the penalty of dismissal appropriate in the circumstances?

The law relating to appeals against the exercise of discretion by a lower tribunal are set out in the case of AG v Howman 1988 (2)ZLR 402 (SC). It is clear from this case that an appellate Court will not lightly interfere with such discretion unless it can be shown that same was exercised unreasonably or with mala fides or with bias.

Applying this principle to the facts of the instant case, the question which this Court has to answer is whether or not in the exercise of its discretion the Appeals Committee erred in finding Appellant guilty of the misconduct complained of and whether the penalty meted out was in accordance with the dictates of justice?

In view of the abandonment of the points in limine already referred to above, the Court thus deals with each of the Grounds of Appeal on the merits.

Ground 1

This ground is effectively a review ground but since no issue was raised regarding its impropriety as an appellate ground it shall be disposed of as such. The Appellant argues that she took issue with the composition of the Disciplinary Committee but was over ruled and that was not recorded. The difficulty which the Court has with accepting this line of argument is that as the Respondent correctly observed the minutes were endorsed by both employer and employee representatives.

To this extent, the Court can not envisage how the worker representatives would not have objected to having the record of proceedings endorsed as a true record if it is true that something out of it had been removed or altered. The Court is thus persuaded that this ground has no merit and it cannot stand. It should therefore fail.

Ground 2

The elements making up one’s right to be heard are as articulated by the cases cited by both parties. As observed by the Respondent when the Appellant put in her written response she was given a chance to cross examine all the witnesses and was heard in mitigation before her matter was concluded. In that light, the Court is satisfied that there was no breach of the Appellant’s right to be heard on the face of the facts of the instant case. To that extent, this ground should also fail for lack of merit.

Ground 3

Apart from the Appellant’s mere say so that Karimatsenga was biased against her because of the unfair labour practice which she had reported to the Labour Officers against the Respondent, there is nothing else which in the Court’s view demonstrates the alleged bias. As stated in the case of Musarira vs. Anglo American Company SC 53/05 institutional bias is inenvitable in Disciplinary Hearing.

In the instant case, the denial of Appellant’s trip to South Africa by Karimatsenga was a purely administrative decision which had nothing to do with the merits of the instant case. If the Court were to accept that Karimatsenga’s presence on the appeals panel was not in order, the next question which the Court has to answer is what impact did his presence have on the merits of the case? If he had been absent would the conclusion on the matter have been different?

It is clear that, on the merits of the matter the misconduct was apparent and if the appeals body was irregularly constituted that would not have changed anything in the matter.

It is trite that, is not every procedural irregularity which vitiates proceedings (see case of Tichawona Nyahuma vs. Barclays Bank Private Limited SC 60/75. Instant case is one where, even if, it were to be accepted that there was an irregularity in the appeals panel composition, that would not have detracted from the Appellant’s guilt. The Court is thus satisfied that this ground also has no merit. It should also fail.

Ground 4

The major argument advanced by the Appellant here is that the inconsistency in the finer details of the alleged misconduct should have caused the Appeals Committee to conclude that she was improperly convicted and penalized.

As stated at the outset, the question is; On the facts which were before the Disciplinary Committee did it abuse its discretion? The Court is persuaded that the reasoning contained in the Disciplinary Committee findings and the Appeals Committee conclusion cannot be faulted at all.

As Respondent correctly pointed out, Appellant confessed that she came into contact with the general hand demanding her money and even uttered words to the effect that she would ensure that he gives her, her money.

Whether she hit him once or three times becomes immaterial. Her conduct clearly impressed on Marlon that force was about to be applied to him and for that reason the infraction was committed. The testimonies of the witnesses only came in to bolster a case which on the face of it was clear without doubt.

If anything, the inconsistencies in the witnesses’ testimonies about the incident can be construed to mean that they did not team up to falsely incriminate the Appellant. No cogent reason has been advanced to show that the decision to find Appellant guilty and dismiss her was irregular.

She was a senior employee and the person that she offended was a mere junior. Such conduct cannot be taken as trivial. In the Court’s view the verdict and penalty were thus both well placed. In the result this ground again has to be dismissed for lack of merit.

In the final analysis, it is clear that none of the grounds of appeal has merit. They all should accordingly fail.

IT IS ORDERED

That the appeal lacking in merit in its

entirety be and is hereby dismissed with

costs.

2. The Appellant’s guilty verdict and the

dismissal penalty is confirmed.

L. Kudya

PRESIDENT/LABOUR COURT

Gonese and Ndlovu – Appellant’s Legal Practitioners

Tandiri Law Chambers – Respondent’s Legal Practitioners