Guard Alert (Pvt) Ltd v Simbarashe Chimerengwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/572/2016
HARARE, 12 JULY 2016 &
CASE NO LC/H/1105/2015
23 SEPTEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/572/2016

HARARE, 12 JULY 2016 &				       CASE NO LC/H/1105/2015

23 SEPTEMBER 2016

In the matter between

GUARD ALERT (PVT) LTD						APPELLANT

Versus

SIMBARASHE CHIMBERENGWA					RESPONDENT

Before the Honourable Muchawa J

For the Appellant	J Murakata (Human Resources Director)

For the Respondent	S Kwaramba (Trade Unionist)

MUCHAWA J:

This is an appeal against an arbitral award.

The respondent was employed by the respondent as a security guard. On 2 June 2013, he was deployed at Lake Harvest Farm main gate in Kariba. He was then dismissed on allegations of gross incompetence on 24 July 2013. This was reached after a series of dramatic events.

The facts giving rise to the misconduct allegations are that the respondent allowed a tractor loaded with 1437 kgs of discarded fish to pass the main gate upon a declaration of only 70 kgs of fish to internal security. The internal security supervisor had issued a signed gate pass which the respondent claims to have checked. In his opinion he had complied with the standing order. The anomaly was only discovered by another security company manning another gate.

The appellant initially charged the respondent of negligent loss or damage to employer/client property under group II offences of the relevant Code of Conduct.

Though the appellant sought to mislead this court by claiming that the initial hearing held on 12 June 2013 was inconclusive and was set aside with the employee being reinstated and fresh disciplinary hearings being held, the record speaks a different story.

The appellant’s own submissions in support of the appeal are very revealing. It is stated:

“The overloading was discovered by another security company which was also manning another gate after the gate manned by our guard, Simbarashe.

This is surely gross incompetence in the performance of guard duties. It is true that the hearing officer erred in coming up with a lesser penalty which led to the issuing of a final warning.”

This means that the initial hearing was concluded and the penalty was a final written warning valid for six months, as alleged by the respondent.

On 13 June when the respondent reported for duty he was advised that management was of the view that the first hearing was poorly done. A decision was taken to institute fresh proceedings after reinstating the respondent.

The new charge was that of gross incompetence in the performance of one’s duties under group III offences of the relevant code. Fresh disciplinary proceedings were held on 15 June and 24 July 2013. The respondent did not attend the fresh hearings and workers committee representatives walked out during the hearing. The respondent was then dismissed from employment.

Following the dismissal, the respondent lodged a complaint of an unfair dismissal and a claim for terminal benefits.

The arbitrator found that the respondent was unfairly dismissed and ordered reinstatement with damages in lieu of reinstatement as an alternative.

In the appeal before me the appellant alleges that it was competent for it to set aside the initial disciplinary proceedings and the final written warning penalty and institute fresh proceedings after reinstating the employee. It is contended that the misconduct by the employee amounted to gross incompetence and dismissal was the fitting penalty.

The respondent argues that it was incompetent for the appellant to conduct fresh hearings after the disciplinary matter had been concluded. The fresh hearings are alleged to be a nullity in the circumstances.

It seems to me that the appellant has wrongly transposed the principle that allows an employee to be reinstated and to have disciplinary proceedings started de novo.

In the cases of Dalny Mine v Banda 1999 (1) ZLR 220 (SC) and Air Zimbabwe Corporation v Mlambo 1997 (1) ZLR 220 (S) it was held that it is undesirable for labour matters to be decided on the basis of procedural irregularities. Such irregularities needed to be put right by, inter alia, remitting the matter for a hearing de novo and in a procedurally correct manner.

Such a procedure is open where there are procedural irregularities. It does not exist to allow a tribunal at the same level to change its mind and alter a decision already made. The position and its rationale is set out in Delta Operations v Mpepula SC 60-04 as follows:

“An official cannot make a decision which affects or abolishes rights which his previous act has already created. Such a favourable decision may only be revoked with the consent of the beneficiary. Intolerable uncertainty would result if previous decisions favourable to employees were to be reversed at any moment by the same official who would have made them with full knowledge of the facts on which the decision had to be based.”

In casu, the appellant’s hearing officer with full knowledge of the allegations of misconduct preferred the lesser charge of negligent loss or damage to the client’s property and after a full hearing imposed the penalty of a final warning.

It was incompetent for the appellant to nullify the first hearing and affect the respondent’s rights by reinstituting fresh proceedings as a result of a change of mind regarding the seriousness of the offence. It was always available to the appellant to have preferred the more serious charge of gross incompetence. This was not done and the outcome of the first hearing remains binding.

The respondent’s plea of res judicata is also upheld. The same subject matter, between the same parties, before a competent tribunal already passed final judgment disposing of the matter. O Shea v Chirenda 1999 (1) 333 (S).

Consequently the arbitrator’s conclusions cannot be impugned.

Accordingly the appeal be and is hereby dismissed and the arbitral award is upheld.