J. Mundikodzi v Southdown Estate

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MC/29/2013
HELD AT MUTARE ON 26 MAY, 2010
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/MC/29/2013

HELD AT MUTARE ON 26 MAY, 2010			CASE NO. LC/MC/16/2008

AND 13 SEPTEMBER, 2013

In the matter between

J. MUNDIKODZI						-	Appellant

And

SOUTHDOWN ESTATE					-	Respondent

Before The Honourable B.T. Chivizhe: President

For Appellant 	-	Mr. J. Terera  (Legal Practitioner)

For Respondent	-	Mr. S. Chitumwa  (Legal Practitioner)

CHIVIZHE, B.T.:

The matter was heard in Mutare in May 2010.  The parties by consent agreed to file Supplementary Heads of Argument.  The court would thereafter hand down judgment on the basis of the written submissions. After the date of hearing the record got misplaced in the registry.  It was only referred back to me in July 2013 for hand down of judgment.  Any inconvenience to the parties is sincerely regretted.

The Appellant was employed by the Respondent as a Security Sergeant and had been employed in that capacity for 10 years.  He was suspended from employment on 22 October 2003 on allegations that he had, while in the process of returning a theft suspect he had been entrusted with by the Mozambican Border Police, left the handcuffed suspect in the canopy (loading box) of a vehicle they were travelling in whilst he sat in the front passenger seat.  As a result the suspect escaped from the moving vehicle with his handcuffs on.  It is common cause the Appellant attempted to give chase but failed to apprehend the handcuffed suspect.  The Appellant then conducted a manhunt the following day but to no avail.  It was Respondent’s further allegation that the Appellant had failed to also report the incident to the Zimbabwe Republic Police and to the Mozambican Border Police who had entrusted him with the theft suspect.

The Appellant appeared before the Disciplinary authority on 24 November, 2008 facing a charge of gross incompetence or inefficiency in the performance of his duty.  The Disciplinary authority returned a verdict of guilty on the charge and thereafter imposed a dismissal penalty.  Exercising his rights under the Code the Appellant appealed unsuccessfully to the two internal appeal levels.  Dissatisfied Appellant then lodged the present appeal with the Labour Court. The appeal is premised on the following grounds of appeal;

Respondent erred in findings that the Appellant was grossly incompetent in this matter.

Respondent erred in finding that the Appellant had been inefficient in his work despite the availability of evidence to the contrary.

The Respondent erred in dismissing the Appellant from employment.

Although the Appellant noted his appeal on three grounds he has raised two additional grounds of appeal in his Heads of Argument.  The Respondent has not taken exception to that procedure having responded to these two additional grounds of appeal in its Supplementary Heads of Argument.  I shall therefore address those two grounds initially then the rest of the grounds in the order they have been presented.

The first ground raised by the Appellant is based on the composition of the Disciplinary Committee.  Appellant’s submission is that the Disciplinary Committee was improperly constituted; it should have been chaired by a Divisional Manager and not the Field Manager as was the case.  He relied for this proposition on the Works Council Constitution of Southdown Estates.  It was Appellant’s submission as this was a fatal irregularity the appeal should be allowed on that basis.

The Respondent position is that the Works Council Constitution does not override the provision of the Code of Conduct.  The Code of Conduct provides for composition of the Disciplinary Committee whose chairman is designated by the employer after taking into account the rank of the employee.  Since complainant was the Estate Manager it automatically followed that the most suitable person to chair would be the field manager given the matter was already at Estate level as Appellant reported directly to the estate manager.  It was Respondent’s further submission that The Works Council Constitution came into operation in 1998 five years after registration of the Code of conduct.  The Works Council Constitution did not amend the Code of Conduct.

Both documents i.e. the Code of Conduct and Workers Committee Constitution were placed before the Court upon the Court’s request.  On perusal of the documents it is apparent that the Code of conduct was registered in 1993, whilst the Works Council Constitution was agreed upon by management and the Council Workers Committee on 23rd day of January 1998.  The Code of Conduct in Section 6.1 provides for the composition of the Disciplinary Committee as follows:

6.1	Composition of Disciplinary Committee

Disciplinary Hearing will be conducted by the following:

Chairman	-	Designated Disciplinary Officer

Member	-	Line Manager

Member	-	Chairman of Workers Committee or his designated

Representative.

Member       -	Secretary of the Workers Committee or his designated representative.

Secretary      -	To record proceedings in the prescribed format but shall not take part in the deliberations.

Note:   Personnel Manager or his representative to attend in an

advisory capacity.

The Works Council Constitution has in clause 3 provided for composition of the appeals body at the Estate level.  The body is made up as follows:

At the Estate level in the case of an appeal, the EGM or equivalent and the DM who chaired the initial hearing, the Personnel Practitioner, the worker concerned, his chosen shopfloor W/C representatives and an Estate W/C member chosen by the Estate committee preferably from the same field of work will attend.  The EGM or delegated his representative will chair the meeting.  (my own underlining).

Given the fact that the Constitution was drawn up 5 years later it would appear as suggested by the Appellant that the Constitution did in clause 3 amend the provisions in the Code of Conduct especially in relation to composition of the appeal committee.  It would also appear from a reading of the same clause that the  Divisional Manager is supposed to chair the initial hearing.

There is in my view an apparent conflict between the provisions in the Code and the Constitution as to who can be Chairman of Disciplinary Committee.  I am satisfied given the background circumstances of unclear provision in the Code of Conduct the Respondent did the ‘next best thing in the circumstances’.   The Field Manager chair the Disciplinary Committee. This approach seems to have found favour in the Supreme Court decision in Duly Holdings v Peter Chanaiwa SC 17/07.  It is also important to note that there has been no averment or allegation by the Appellant as to what prejudice, if any, he suffered as a result of the procedure followed.  I would consequently dismiss the first ground of appeal.

The second ground of appeal is that the Appellant was represented by one Mr Makanise who was not a constituent member.  It is Appellant’s further submission that as Mr Makanise was not chosen by him the Respondent had committed an unfair labour practice by imposing the representative on him.

The Respondent submitted through its Heads of Argument that it has a three tier Workers Committee System that is  Departmental Workers Committee, Estate Workers Committee and Central Workers Committee.  The Department Workers Committee elects some of its members to the Estate Workers Committee which in turn also elects some of its members to the Central Workers Committee.  At the material time the Appellant was the Chairman of their Departmental Workers Committee that is in the Administration Department.  Mr Makanise was his vice Chairman.  Although Mr Makanise had been transferred to Factory Department he was still the Acting Vice Chairman in the Administration Department.  The Respondent was at the material time communicating with Mr Makanise regarding Appellant’s Workers Committee representation.  He naturally attended the hearing.  The Respondent also submitted that Appellant had been advised he could have any representative of his choice.  The Appellant never raised any objection to the choice of representative.

It is clear from a perusal of the record that Appellant did not at any stage during the disciplinary hearing raise any objection to the presence of Mr Makanise as his representative.  The first time he then raised the issue was at the appeal hearing held on 19 November 2008.  The Appellant raised the issue that Mr Makanise represented him but he was a non-constituency member.  When asked why he had not raised an objection he explained that he knew he could always appeal.  It is clear that if indeed the Appellant had an objection to Makoni’s presence it ought to have been raised at the initial hearing.  If he did not he is taken to have accepted his representative.  In other words he is taken to have waived his right to appoint his own Representative.  His explanation that he knew he could always appeal is totally unacceptable.  That would actually amount to abuse of the disciplinary process.

It is also an established principle that it is not every procedural irregularity that shall vitiate proceedings.  In order to succeed in having proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced.  See for example Nyahuma vs Barclays Bank of Zimbabwe SC 67/04.  In casu there has been no averment or allegation as to what prejudice, if any, the Appellant suffered as a result of Mr Makanise’s representation.  He clearly cannot succeed on this ground.

In the next two grounds the Appellant contends that Respondent erred in finding him guilty on the charge of gross incompetence or inefficiency.  It is Appellant’s submission that his conduct could at most amount to ordinary negligence in that his only crime was that he did not secure the suspect. The Respondent position is that the Appellant was grossly incompetent or inefficient in the manner he carried out his duties on the day.  The Appellant himself had during the hearing admitted that he was guilty of non-compliance with standard practice in security procedures.

The decision as to whether Appellant’s conduct amounted to gross incompetence/inefficiency or ordinary incompetence or negligence for that matter must be a value judgment based on the assessment of the facts in the matter.  The Respondent’s position was that Appellant had been grossly incompetent or inefficient considering the following factors;  Appellant had been employed for 10 years in the Security Section, he was entrusted with a suspect by the Mozambican Border guards; he knew he had an obligation to return the suspect after completing his investigations; on his way to return the suspect he allowed the handcuffed suspect to sit alone at the back vehicle whilst he sat in the truck passenger seat thereby leaving the suspect unattended; the handcuffed suspect escaped while the car was in motion; the Appellant gave chase but failed to catch the handcuffed suspect; the Appellant failed to report the incident to the local ZRP police and to the Mozambican Border Police who had entrusted him with the suspect.

In my view the cumulative circumstances of this case clearly point to gross incompetence or inefficiency.  The Respondent was therefore correct in finding him guilty of the charge.

The Appellant also raised as a ground of appeal that the Respondent erred in dismissing him from employment.  The ground which is based on penalty was however not amplified by Appellant in his Heads of Argument.  The ground of appeal clearly cannot stand.  It is consequently dismissed.

The last ground of appeal raised by the Appellant is that the Respondent is guilty of selectively applying the law on the basis that on 16 occasions other security guards were outrun by their captives but the Respondent did not take similar action of dismissing these other security guards.  It is Appellant’s submission the Respondent should treat equally employees committing similar offence. The Respondent denies the charge of selective application of the law and has put the appellant to strictest proof of the allegation.

Whilst, it is clear that the ‘parity principle’ that like cases should be treated the same forms part of our law (See Jiah and Others vs Public Service Commission or Anna 1999 (1) ZLR 17(SC) Anna Pingani vs Parks and Wildlife Management Authority LC/H/201/2008) the Appellant has in casu failed to place the so called sixteen cases that the Respondent handled differently to his case before the court.  In order for the court to find in his favour Appellant would have needed to prove that in those 16 matters the employees had committed similar offense in the same circumstances and the employer had foregone disciplinary proceedings.  In the absence of that evidence the court cannot come to the conclusion that Respondent selectively applied the law.  The ground of appeal clearly cannot stand.

It is accordingly ordered as follows;

The appeal be and is hereby dismissed with no order as to costs.

Messrs Mwonzora & Associates  - Appellant’s Legal Practitioner

Bere Brothers – Respondent Legal Practitioner