Israel Tsikwa v Agrifoods

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/432/2013
HARARE, 27 JUNE 2013 & 13TH
SEPTEMBER 2013
CASE NO LC/H/870/2012
---------




IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/432/2013

HARARE, 27 JUNE 2013 & 13TH 			CASE NO LC/H/870/2012

SEPTEMBER 2013

ISRAEL TSIKWA						APPELLANT

Versus

AGRIFOODS

RESPONDENT

Before The Honourable L Hove	:	Judge

For the Appellant	:	T E Gumbo (Legal Practitioner)

For the Respondent	:	Ms C N Nyanzou (Legal Practitioner)

HOVE J:

The appellant in this case was employed in a supervisory capacity by the respondent.

The brief facts which led to first charge of alleged acts of misconduct against the appellant and his subsequent dismissal from work were that on 17 October 2007 the appellant and his team were loading starter crumbs when they were supposed to be loading an order of pre-starter crumbs for Crest Breeders.

When the complainant went to chase up the order for Crest Breeders at the loading bay, he discovered that the appellant and his team were loading a wrong order. The complainant enquired why this was so and the appellant responded that it was a mistake and it did not matter as they had diverted the load elsewhere. The response was further that the misload was not a big issue as it usually happened and could be corrected. The supervisor was worried about the failure to deliver the customer’s order in time while correcting mistakes which could be avoided in the first place.

Facts which related to the second charge arose from the facts of the first charge. The complainant worrying about the delay in loading an already late order for Crest Breeders requested that the appellant writes a report explaining how they had wrongly loaded the Crest Breeders order. The appellant laughed and said it was not necessary to write the report. The following day, the instruction to submit a report had not been complied with, the complainant did a written request for the report. The appellant wrote on the request from the supervisor that he was not aware what the complainant was talking about and submitted back the request for a report memo with the endorsement.

The appellant had apparently been offended by the fact that the complainant had approached him at the loading bay where there was no privacy and made the request for a report. The appellant says he did not like this. He ought to have been called to the complainant’s office instead, so he endorsed on the written request for a report that he did not know what the complainant was talking about.

The facts relating to the third charge were that in the evening of the same day as the appellant was preparing to go home, the complainant approached him to find out what was happening. The appellant said he was worried about transport but as he said these words, he charged at the complainant as if to pick a fight. The complainant was shocked at such behaviour. The following day, the complainant chased up the issue of the report. The appellant, walked away saying that the report was not necessary.

The appellant did not seriously deny these facts but alleged in response to the first charge that misloading orders was a mistake in relation to the second charge, he explains that he was not happy with the manner in which he had been approached.

Lastly, the charged insubordination, the appellant said there was an exchange of bad words between him and the complainant.

The appellant was found guilty and dismissed. He appealed to the appeals committee but his appeal was out of time. He was advised to apply for condonation for late noting of appeal and it was granted.

When the appeal hearing was convened, the appellant did not attend. The matter proceeded in his absence and the finding of guilty was confirmed and also the penalty of dismissal was endorsed.

The appellant appealed to this court and his grounds of appeal are briefly that:

The appeals committee erred in finding that he had been properly served with notice to attend the appeal hearing.

The appeals committee failed to decide on the merits of the matter.

The dismissal was not justified and it was also irrational.

The appeals committee merely rubber stamped his dismissal and failed procedurally when it failed to give him an opportunity to be heard.

When the appeal was argued before me, the first ground of appeal was not argued. It must be taken therefore that the appeals committee did not err in finding that the appellant had been properly served but did not bother to attend the appeal hearing.

The record also shows that apart from being properly served, the appellant was at the respondent’s work place on the day and during the time that the appeal was being heard.

The proceedings were temporarily halted to facilitate the calling of the appellant to the venue of the appeal hearing but he refused to attend.

The appellant cannot now challenge the fact that he was denied the opportunity to be heard when he with full knowledge of the proceedings, declined to attend and explain or highlight his areas of concern. See in this regard the case of

Rwodzi v Chegutu Municipality 2003 (1) ZLR 601 where in the Supreme Court held that when one failed to attend a hearing after having been properly warned of the hearing, he cannot complain. He only has himself to blame.

There were no specific arguments on behalf of the appellant in support of the fact that the decision to dismiss him was unjustified and irrational.

The record will show from the minutes of the initial hearing that the appellant only had excuses and explanations as to why he had:

Misloaded the Crest Breeders order; (His explanation was that it was a mistake).

The refusal to obey a lawful order; (He explained that he eventually did submit a report after a written request had been made but he had ignored the verbal request. His refusal was not a mistake or the result of inadvertence but a serious and deliberate refusal to submit the report as he responded that the report was unnecessary).

See in this regard the case of Matereke v C.T. Bowing & Associates 1987 (1) ZLR 206.

The insubordination is quiet evident from the record. He kept telling his superior that the writing of the report was not necessary and inspite of several reminders delayed in his response. He also gestured to his superior in a way that suggested that he wanted to pick a fight in full view of his own subordinates. This is clear evidence of insubordination.

I cannot therefore understand why the decision to dismiss the appellant can ever be described as irrational.

The allegations that the appeals committee did not address the merits and that they merely rubber stamped does not hold any substance. The appellant had refused inspite of two proper notices of the hearing to appear and prosecute his own case. His failure to do so left the appeals committee no option but to decide the matter on the basis that he had failed to come and prosecute his case. The appeal hearing was thus on the basis of the initial hearing which the appeals committee endorsed as no further arguments were placed before them to enable the matter to be considered otherwise.

The fact that the appellant alleges that he made a mistake cannot in itself exonerate the appellant from the charges against him.

There is no justification to continue committing the same mistake and failing to correct the manner you do things merely for the reason that this is a common mistake which usually happens. The fact that it was a common mistake ought to have made the appellant who was the supervisor more alert to the possibility of making a mistake and thus avoid such mistakes.

The fact that the appellant was going to rectify the mistake would only mean that they would be more busy since some of their working time would be spent in correcting mistakes. Further the delays caused to certain customers would not be righted when the mistakes were eventually corrected.

I am more than satisfied that the appellant’s case is a hopeless one as it is absolutely without merit and he is merely wasting the court’s time.

In the result, the appeal is dismissed.

HOVE J

JUDGE – LABOUR COURT

Chinawa Law Chambers, appellant’s legal practitioners

Dzoro & Partners, respondent’s legal practitioners