James North v Washington Takaendesa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/30/2013
HELD IN HARARE, JANUARY 3, 2013
CASE NO. LC/H/539/11
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/30/2013

HELD IN HARARE, JANUARY 3, 2013		CASE NO. LC/H/539/11

In the Matter Between

JAMES NORTH					APPLICANT

And

WASHINGTON TAKAENDESA			RESPONDENT

Before The Honourable E. Makamure         : President

For The Applicant     		: Mr W. Gumunyu (Human Resources Manager)

For The Respondent  		: Mr A. Watenga (Trade Unionist) with client

MAKAMURE E.,

This is an application for interim relief.  It is opposed.  The applicant dismissed the respondent.  The respondent appealed to the relevant National Employment Council (NEC).  The NEC found that the applicant had not followed the provisions of the relevant code.  The applicant did not suspend the respondent at the commencement of the disciplinary process.  The NEC therefore remitted the matter back to the applicant for the matter to be heard afresh.  That decision aggrieved the applicant prompting it to appeal that decision.  Before the finalisation of that appeal which has been noted with this Court, the applicant is asking the Court to suspend the decision by the NEC saying that it has prospects of success on appeal.

The Collective Bargaining Agreement Clothing Industry Code of Conduct Statutory Instrument 132 of 1994 (S.I. 132/94) provides as follows in its paragraphs:

“5.  If any employee has committed or is involved in any offence under the Code of Conduct which warrants dismissal, he shall be suspended immediately.  He shall leave his factory premises and/or work site, failing which, he shall be removed from the aforesaid by any appropriate authority.  Should the employee be cleared under the Code of Conduct procedure, he shall be reinstated and paid for the whole period of time lost.  If however, his dismissal is confirmed, he shall not be paid for the period of suspension.

...

The above proceeding shall be complete within 14 days from the date of suspension.” (My emphasis)

It is clear from paragraph 5, above, that an employer is obliged to suspend an employee where the charge involved warrants dismissal.  While it may be desirable not to suspend an employee, the code does not give the employer that option.    Had that been the intention of the legislature, that would have been spelt out in the same code.  I believe that a code like S.I. 134/94 is an agreement between employers and employees.  Both parties are bound by its provisions [See Clan Transport (Pvt) Ltd v Timothy Mukwengwe SC 16/99].  I am also of the view that if the applicant had decided not to follow the provisions of the code ostensibly to protect the rights of the employee, the employer should have immediately informed the employee of its intention so that the employee would be in an informed position.  I am of the respectful view that while the applicant may have “waived” it’s right, it was under the circumstances improper to do so when the employee affected by the noble intentions was not informed about the same.

I therefore find that there is no merit in the application.  In the circumstances the application for interim relief fails.

Accordingly, it is ordered that the application be and is hereby dismissed.

Human Resources Department, Representatives for the Applicant.

NEC, Clothing Industry, Representatives for the Respondent.