F. Murape v CAFCA Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/588/2016
HARARE, 26 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/588/2016

HARARE, 26 FEBRUARY 2016				CASE NO. LC/H/540/15

AND 23 SEPTEMBER 2016

In the matter between:-

F. MURAPE					Appellant

And

CAFCA LTD					Respondent

Before Honourable R.F. Manyangadze, J

For Appellant 		Mr A. Kadhani (Trade Unionist)

For Respondent		Mr W. Magaya (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the determination of a Works Council appeal hearing, which upheld the dismissal of the appellant from the respondent’s employment.

The facts of the matter are largely common cause.  The appellant was employed by the respondent as a Test Technician.  On 31 March 2015, around 7.30 a.m. he was in the factory, together with some other workers, when Mr Dumisani Mhlanga, came to the section where they were working.  This was at the shrink wrap section.  Mr D. Mhlanga, referred to in the minutes of the hearing as Dumi, is the Manufacturing Executive in the respondent’s firm.  It is not clear whether Dumi passed by the appellant’s work section fortuitously or had actually gone there to supervise the workers.  Whatever his mission was, the facts show that he saw the appellant in a posture that suggested that he was either sleeping or attending to his mobile phone.

Dumi did not get to where the appellant was, but stood on some stairs. From this position, he called out to the appellant’s colleagues to tell the appellant to work, as he was letting the team down.  When the appellant did not respond, it appeared to Dumi that he was on the phone.  Dumi then uttered words to the effect that the appellant was showing off with a phone he bought using CAFCA money.  The appellant retorted, and remarked that the little money CAFCA was giving him was not enough to buy such a phone, and he had bought it through his own deals.  Dumi then left in a huff, offended by the appellant’s response.

Arising from this incident, the appellant went for a disciplinary hearing.  He was found guilty of contravening Section C (2) (c) of the CAFCA Code of Conduct (the Code):

“Using abusive, offensive or insulting language.”

The Disciplinary Committee found him guilty and imposed a penalty of dismissal.  The Works Council upheld the dismissal, prompting the appeal to this court.

The grounds of appeal are stated as follows:

“1.	The language which the respondent alleged was abusive offensive and insulting is far away from the essential elements of same.

The Respondent erred when he did not call the witness, Dumisani in the hearing, neither did he submitted a written statement to the hearing panel.

The respondent rely on the hearsay evidence from Kuda Mhlanga who was simply explaining what he heard from Dumisani, he was not even at the place of scene neither did he hear the words said by the applicant.

All the witnesses who were called to testify against the defaulter never gave evidence that substantiate that the words were offensive, abusive or insulting.

David Munhuweyi in his written and oral evidence never gave any information which relates to the abusive, offensive or insulting language.  In his evidence he said he did not hear anything.

There was no corroborating evidence which in its entirety cannot convince a reasonable panel to a conviction.

All the witnesses never gave evidence which establishes an act of indiscipline, violence and other related offenses.

The works council erred when it convicted the defaulter basing their evidence on the feelings that the superior might have got from the words instead of considering the evidence that was brought before them.

The works council failed to follow the CODE of conduct for it clearly specifies that if one is found guilty for the second time for C/s C(2) of the first time he should be given a last written warning and if he is found guilty for the second time he will be dismissed.  The council erred when it dismissed the employee for it was his first conviction.  There was no evidence for previous convictions which was produced in the hearing.”

The grounds of appeal were inelegantly drafted by the appellant’s Trade Union representative.  A careful examination of the grounds of appeal however, reveals two basic issues in the appeal.  The first one is that the words uttered did not constitute offensive, abusive or insulting language.  The second issue is that even if they constituted offensive, abusive or insulting language as alleged, a penalty of dismissal was not warranted.  The Code provides for a last written warning for a first conviction.

This is also what is coming out of appellant’s brief heads of argument.  It is captured in the averment in paragraph 2 thereof, wherein he states;

“There was no evidence proffered by the witnesses which showed that the appellant used abusive, offensive and insulting language.”

A reading of the minutes, both the initial hearing and appeal minutes, clearly shows that the alleged utterances were made.  The gravamen of the appeal, in my view, is not whether or not the words were uttered.  It is whether or not they amount to a commission of the offence with which the appellant has been charged.  If they do, whether a penalty of dismissal was called for.

It is necessary to look at the utterances that were made.  Deliberations at the Works Council appeal hearing reveal the following:

“3.24	TN - So when you look at the substance of the matter there were offensive words like “urikuvhaira nekafoni kawakatenga nemari yeCAFCA” and he responded saying, “Kamari keCAFCA hakatengi this type of a phone”, so the conversation was in an offensive tone.  In terms the levels of the two people who were exchanging words, Dumisani is a Superior and Felix is a subordinate, in terms of the Organogram.  In-terms of the audience to answer back your Superior I feel he was wrong.  Our procedure has a grievance process which Felix could have used if he was offended by Dumi.”

These were essentially the words that were said by the appellant.  There were said in the course of an exchange with Dumi.  The appellant basically avers that there is no evidence to substantiate that these words constituted “abusive offensive or insulting language”.  He claimed he was attending to a phone call that was communicating a bereavement message.  This claim was not however, substantiated in any manner. Minutes of the disciplinary hearing show that the committee tried to inquire into this issue.  Its attempts were however, met with what reads like a rude response from the appellant.  He retorted by asking the panel whether they wanted him to bring his relatives’ corpses to prove he was bereaved.  The exchange is recorded as follows in the minutes.

“3.159	    TP  - Do you have the phone?

3.160    FM  - Yes

3.161    TP  - Can I see it?

3.162.   FM - Here it is

3.163    TP  - Can you go to the call log for the 31st March 2015?

3.164    AK  - Was this the line you were using on the day/ He has so many

lines.

3.165    FM  - I lost the line.

3.166    CK  - How many lines do you use?

3.167    FM  - I have 3 lines, telecell, easy call and buddle.

3.168    TP  - Which line were you using in this particular case? I would have

thought you would bring that line as your defense since you

knew you were coming to the hearing.

3.169    FM  - So are you also saying I should have brought the corpse of my

dead relatives for you to believe me?”

This excerpt from the minutes shows that the Disciplinary Committee afforded the appellant an opportunity to substantiate his explanation.  He was unco-operative, to the point of being insolent.

The respondent viewed the words as rude and offensive, given the position of superiority Dumi had over the appellant, and the context in which they were uttered.  Dumi had rebuked the appellant for apparently sleeping on duty.  It turned out that the appellant was not sleeping but was concentrating on his phone.  Dumi still took exception to the appellant being on the phone in the factory, as he was letting the team down - “Kudyisa team”. This provoked him into remarking that after all the phone the appellant was using was bought with CAFCA money.  Those remarked in turn provoked the appellant into rudely answering back in the manner he did.  He then told Dumi the phone was not bought using the little money he was getting from CAFCA, but through his own deals.

The respondent emphasized these sentiments in its heads of argument.  The respondent averred;

“What is common cause from the record is that Appellant when asked to wake up or stand up from where he was sleeping used offensive and abusive language towards his superior.  The minutes of the hearing will show that the employee exchanged words with his superior and in the exchange he uttered words that were insulting to his superior.  Appellant was asked to concentrate on his work after having been seen as talking to someone over his phone.  He answered back in a way that was clearly offending to his superior.  He told his superior that what he was being paid was not sufficient to buy a cellphone.  This is against a background of having been rebuked for not working. Such conduct is clearly insubordinate and undermines the authority of the employer. (underlining added)

During oral argument, Mr W. Magaya, for the respondent, contended;

“Your superior is giving you an instruction to wake up and work. You then say to your superior” what you pay me is not sufficient to buy this phone I am using”.  This is in the context of a working environment, in the factory.  You are reprimanded for sleeping and you say that.  Let’s also look at the levels of the two persons – a Manufacturing Executive and a Test Technician, a shop floor employee … these words are clearly insulting and challenging the person who is in charge of production.”

The words uttered were, in the circumstances, undoubtedly rude and were viewed by the executive to whom they were directed as offensive.  The person to whom they were uttered - a senior official in charge of production, the occasion - a work related reprimand, in the presence of other factory workers, all combined to make them offensive.  The remarks by the senior official himself, which apparently, provoked the insolent retort, do not detract from the rudeness and offensiveness in the appellant’s remarks.

It seems to me the standard of behaviour and values an employer wants to uphold at the workplace are primarily determined by the employer.  This is done in the interests of harmonious industrial relations, which very often have an effect on production.  The courts generally cannot interfere with the standard of conduct or behaviour an employer expects to be observed in a factory, or workplace, unless such stands are outrageous or grossly unreasonable.  This principle was emphasized in County Fair Foods (Pty) Ltd v CCMA & Others (1999) 20 ILJ 1701 (LAC), where the court stated;

“It lies in the first place within the province of the employer to set the standard of conduct to be observed by its employees and to determine the situation with which non-compliance will be visited, interference herewith is only … in the case of unreasonableness and unfairness.”

In the circumstances, the Disciplinary Committee cannot be faulted for finding the appellant guilty of using abusive, offensive and insulting language.  The Works Council cannot be faulted for upholding the appellant’s conviction.  It cannot be said that the findings by the Works Council, and the Disciplinary Committee were so outrageous or irrational that they ought to be interfered with.  See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

Whilst the Works Council was unanimous on the appellant’s conviction, it was not so on penalty.  There was considerable difficulty on how to treat the appellant, in view of a provision in the Code, which provided for a last written warning for a first conviction.  This was appellant’s first conviction for this type of offence.

According to the Code, a first conviction attracts a penalty of a last written warning.  Dismissal is imposed on a second conviction.  These are the clear provisions of the Code.

It was submitted, on behalf of the respondent, that the discretion to assess  and impose penalty remained at all times the prerogative of the employer.  The position is not changed by the existence of a Code that provides for a lesser penalty.  It was averred in respondent’s heads of argument, that;

“Penalty imposed in disciplinary matters is a matter for the employer’s discretion.  The Appellant was found guilty of misconduct and the employer has discretion to impose the dismissal penalty.  This was the decision of the court in Nobert Madharani vs CAFCA LC/H/246/12 (Ndewere J, as she then was).  The position was again stated in Toyota Zimbabwe vs Posi 2008 (1) ZLR 173. The offence committed by the employer goes to the root of the employer-employee relationship the court (sic) has a common law right to terminate the contract even where the code of conduct provides for a less drastic penalty.  A code of conduct does not alter or abrogate a principle of the common law and it does not matter that the code of conduct is a product of an agreement.  In DHL International vs Tinofirei SC 80 14 the same point was made by the Supreme Court.”

The respondent’s averment is correct in law, that the imposition of penalty is primarily within the discretion of the employer.  The courts should not lightly tamper with that discretion or prerogative.  This has been clearly underscored in a number of cases, such as Mashonaland Turf Club v Mutangadura SC 5/12 and Innscor Africa (Pvt) Ltd vs Lettron Chimoto S.C. 6/12.

The employer’s discretion, however paramount, is not entirely free from interference.  If it can be shown that there was gross unreasonableness or serious misdirection in the exercise thereof, intervention may be warranted.

The Supreme Court considered the issue of what degree of misconduct may warrant termination of the employment relationship in Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210.  McNALLY JA remarked, at pages 218-219;

“The real question is “do these facts amount to misconduct justifying summary dismissal?”.  The value judgment implicit in the assessment of whether misconduct is or is not “inconsistent with the fulfillment of the expressed or implied conditions of his contract” must inevitably be affected by changing perceptions of social mores.

In Halsbury’s Laws of England 4 ed Vol 16 para 642 it is said:

“Misconduct inconsistent with an employee’s proper discharge of the duties for which he was engaged is good cause for his dismissal, but there is no fixed rule of law defining the degree of misconduct which will justify dismissal.”

That passage is based on a dictum by Lord James of Hereford in Clouston & Co Ltd v Corry [1906] AC 122 at 129 (PC), cited with approval in Laws v London Chronicle (Indicator Newspapers Ltd) Ltd [1959] 2 ALL ER 285 (CA) at 287H as follows:

“Now the sufficiency of the justification depended upon the extent of misconduct.  There is no fixed rule of law defining the degree of misconduct which will justify dismissal.  Of course there may be conduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand misconduct inconsistent with the fulfillment of the express or implied conditions of service will justify dismissal.”

I consider that the seriousness of the misconduct is to be measured by whether it is “inconsistent with the fulfillment of the express or implied conditions of his contract”.  If it is, then it is serious enough prima facie to warrant summary dismissal. (It seems clear that the wording of our Act is modeled on the words from Clouston’s case, supra.) Then it is up to the employee to show that his misconduct though technically inconsistent with the fulfillment of the conditions of his contract, was so trival, so inadvertvent, so aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted.  See Rashayi’s case, supra, at 393F.” (underlining added)

In casu, it has been shown that the words in question were uttered in the course of what appeared an angry exchange between the appellant and Dumi.  The appellant’s remarks were prompted by what he must have perceived as rude and provocative remarks from Dumi.  The Works Council noted as much. In its deliberations, supra, it observed;

“So the conversation was in an offensive tone our procedure has a grievance process which Felix could have used if he was offended by Dumi;”

It seems the respondent fell into error by viewing the remarks principally as an act or sign of insubordination. Its submissions reflect an undue emphasis on undermining the authority of Dumi.

Minutes of the Disciplinary Committee hearing reveal that the appellant was initially charged with three offences.  These were,

sleeping during normal working hours

refusal to obey a lawful order given by the employer.

Using abusive, offensive or insulting language.

The first two charges could not stick, given the circumstances surrounding the case.    It is the third charge that stuck, with the focus on the verbal exchange looked at.  Had a conviction been secured on the first two charges, in particular the second one, it would have easily attracted the penalty of a straight dismissal.  The same cannot be said of the third charge.  Granted the remarks were rude and offended his superior, but they were a spontaneous outburst. The outburst was a reaction to what the  superior had first said, which also sounded rude.  It cannot be viewed as a deliberate, calculated intention to undermine the superior’s authority.  It appears the respondent descended too heavily on the appellant, and had in its mind the offences which failed to secure a conviction.  The consequence was a grossly disproportionate sentence.

The offence, in the circumstances of this case, could have been adequately met with a reprimand in the form of a last written warning, as provided for by the Code.  It is the court’s considered view that the facts of the matter did not warrant a departure from the prescribed penalty.  The facts fall into the exceptional category of cases where the employer’s discretion was improperly exercised and warrants intervention.

In the result, it is ordered that;

The appeal against conviction be and is hereby dismissed.

The appeal against penalty be and is hereby allowed.

The penalty of dismissal upheld by the Works Council be and is hereby set aside and it be substituted with “A final written warning” in terms of Section C (2) (c) of the CAFCA Code of Conduct.

Each party bears its own costs.

Coghlan, Welsh & Guest, respondent’s legal practitioners