L Gandazha v Zimbabwe United Passenger Company Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/483/2016
HARARE, 30 JUNE 2016 &
CASE NO LC/H.REV/43/2016
19 AUGUST 2016
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/483/2016

HARARE, 30 JUNE 2016 & 				CASE NO LC/H.REV/43/2016

19 AUGUST 2016

In the matter between

L GANDAZHA							           APPLICANT

Versus

ZIMBABWE UNITED PASSENGER				          RESPONDENT

COMPANY LIMITED

Before the Honourable Muchawa J

For the Applicant	L Chimutashu  (Trade Unionist)

For the Respondent     B Ngwenya  (Legal Practitioner)

MUCHAWA J:

This is an application for review.

The applicant was employed as an analysis clerk of the respondent.

On or about 24 March 2016, the applicant was suspended from duty on allegations of committing gross negligence in terms of the Code of Conduct for the Transport Operating Industry, Statutory Instrument 67 of 2012.

A disciplinary hearing was held on 14 April 2016. The disciplinary committee found the applicant guilty as charged but was deadlocked regarding the appropriate penalty.

The matter was then referred to the division operations manager. On 28 April the division operations manager confirmed the guilty verdict and pronounced a dismissal penalty with effect from 29 April 2016. The applicant was advised that if he was aggrieved with the decision, he could appeal to the chief executive officer within five working days.

On 6 May 2016, the applicant lodged this current application for review. The grounds of review raised are as follows:

That the divisions operations manager had no jurisdiction to determine the matter.

That there was a grave shifting of the charges by the respondent leading to the applicant failing to properly defend herself.

That the record of proceedings is not a true reflection of what transpired at the disciplinary hearing leading to the divisions operations manager basing his decision on an erroneous record.

That the charge of gross negligence is not competent and not provided for in S I 67 of 2012.

That the complainant and his witness were not competent as they were interested parties

The applicant argues that a remittal of this matter would not meet the justices of the case and prays that the court substitutes its own decision for that of the divisions operations manager.

The application for review is opposed. I address each ground in turn below:

Jurisdiction of the divisions operations manager

The disciplinary committee after reaching a deadlock is directed on the procedure to be followed by the Code of Conduct for the National Employment Council for the Transport Operating Industry which is the Sixth Schedule of SI 67 of 2012 (“the Code of Conduct”) .

In paragraph D 6 is the following provision:

“In the event of a deadlock by the Disciplinary Committee it shall forward a copy of the signed record of proceedings to the Chief Executive for a final decision”.

Under paragraph A4 “chief executive” is defined as the managing director, partner or proprietor i.e. the person who is the highest authority in the enterprise/group of companies.

The applicant’s case is that his matter was wrongly referred to the divisions operations manager who is not the highest authority in the enterprise. I was even referred to the decision of the divisions operations manager which states:

“Should you be aggrieved with this decision, you are free to lodge an appeal with the chief executive officer within five (5) working days …”

The applicant contends that the divisions operations manager was not the highest authority in the enterprise and therefore had no jurisdiction.

On the contrary the respondent argues that the divisions operations manager fits squarely into the definition of the term chief executive. It is further argued that the decision dismissing the applicant was that of the disciplinary committee and his recourse if aggrieved, is to appeal to the chief executive officer. The respondent contends that the applicant did not exhaust local remedies and jumped the gun in approaching this court on review. Such failure to exhaust local remedies is said to have been considered unacceptable in a line of cases I was referred to, including that of Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S).

The letter of the divisional operations manager makes it clear that he was not the highest authority in the enterprise as he referred any appeal against his decision, to such authority, the chief executive officer. The approach taken by the respondent of referring the deadlock to the divisions operations manager is therefore not provided for in the Code of Conduct.

Paragraph D 6 provides that once a deadlock is reached, the decision made will be that of the chief executive who makes the final decision. Paragraph E 3 provides that where the chief executive makes a decision and a party is aggrieved by that decision, their recourse is to appeal to the Labour Court.

I am grateful to the respondent who referred me to various cases which state that where there is a Code of Conduct, it represents a product of statutory provisions laying out procedures which are not optional but absolute and final. See Stanbic Bank v Charamba SC 77-05, Mabhena v PG Industries 2002 (2) ZLR 63 H.

It was held in Madoda v Tanganda Tea Company 1999 (1) ZLR 374 that proceedings adopted outside the procedure of a Code of Conduct are null and void. This was reiterated in Mugwebi v Seed Co Ltd & Anor 2000 (1) ZLR 93.

In the Madoda supra case it was held that the disciplinary committee had been improperly constituted and that constituted an irregularity whose effect was to vitiate the proceedings. That is the same situation in this case. The ordinary meaning of the words “chief executive” as defined in the Code do not include the division operations manager where a chief executive officer is available as the highest authority.

The decision of the divisions operations manager dismissing the applicant is set aside and the matter is remitted for rehearing by the chief executive officer, as the appropriate authority.

Other Grounds of Review

In the remaining grounds of review, the applicant takes issue with the procedures before the disciplinary hearing committee and not those relating to the decision of the divisions operations manager. The decision of the divisions’ operations manager was based on the record of the earlier proceedings. This is why I will proceed to consider them in turn below.

Shifting of charges

The applicant avers that there was a constant shifting of charges levelled against her.

I was referred to page 45 of the record where there is a misconduct allegation letter dated 25 February 2016 which letter was served on the applicant on 26 February 2016. This letter states the charge as a violation of “paragraph 14 of SI 67 of 2012 which states “Gross negligence.”

The particulars of the charge are stated as:

“You failed to analyse ticket no 342634 on date 24 January 2016 as original ticket had a value of $1-00 whereas the duplicate had $9-00. The same … was done on several tickets. This has resulted in the company losing revenue.”

Further reference was made to page 44 of record which contains another letter of misconduct allegations. It seems to be erroneously dated 25 February 2012 and was alleged to have been served on the applicant on 8 March 2016.

This second letter states the charge as in the earlier letter. What differs are the particulars of the charge. They are stated as follows:

“It is alleged that you failed to analyse ticket book properly. Tickets opening 342618 to 342718 had 18 tickets amounting to $122-00 which were not analysed properly. The conductor used eligible pen to write tickets and later on destroy … e.g. it can be seen on ticket 342676 was written with eligible pen and later on written US1-00. The analysis clerk failed to pick the anomaly.”

The final reference was to page 35 of the record where a third misconduct allegation letter dated 24 March 2016 and served on the same date, is. This letter states the charge of gross negligence as in the other letters.

It is the particulars of the offence which have once again changed to:

“It is alleged that you failed to analyse tickets for Nyanga route written by conductor Takunda resulting in you failing to pick the difference between original and duplicate tickets. For example ticket number 315812 was written $1-00 and the duplicate ticket was written $3-00.”

The applicant alleges she was left in the position where she did not know what exactly to respond to. Further she alleges that it was only at the hearing that 17 other tickets were produced and she was ambushed as she was not prepared to respond to the allegations.

The respondent submits that this complaint on shifting of charges was not raised at disciplinary committee stage and is only being raised for the first time now and that is improper.

It is argued that the charge never shifted as it remained that of gross negligence and it is the allegations that the applicant is confusing with the charge.

It is further argued that the facts on which the charge is based are not different as they all relate to a failure to analyse tickets and the number of tickets in issue or amount of loss are not critical elements.

As shown by the complaint letters I have quoted, there was no shifting in charges at all. The charge remained as one of gross negligence.

It is also shown by the record that after the first misconduct allegation letter the applicant wrote a letter which is on record page 43 requesting further information being the duplicate ticket 342634 and the several other tickets. This letter is undated.

The second misconduct allegation letter seems to provide such particulars requested and it was received on 8 March 2016.

On 21 March 2016 the applicant received a letter lifting her suspension which is dated 18 March 2016. That was then followed with the third misconduct allegations letter quoted above together with a notification for a disciplinary hearing. Both letters have the same charge of gross negligence and the particulars are a failure to analyse tickets.

In the hearing the applicant was asked if she understood the allegations levelled against her and she said she did (record page 19). She proceeded to plead not guilty. She should have raised this issue at this point.

There is no prejudice demonstrated to have been occasioned. The applicant who was represented at the hearing could have sought a postponement to consider any new evidence she felt was an ambush at the hearing. She cannot be heard to complain now.

There is no merit therefore in the allegation of shifting of charges.

Record of Proceedings not a true reflection of what transpired at the hearing

This issue was not pursued in both oral and written submission before me and I take it as abandoned.

Charge of gross negligence is not competent as not provided for under S I 67 of  2012

The applicant seems to me to be taking issue with Statutory Instrument 67 of 2012 and the way it is drafted.

Annexure 1 to the Code of Conduct defines various offences. In paragraph 14 the offence of gross negligence is defined and this is the paragraph in terms of which the applicant was charged.

I find no basis therefore for the applicant’s contention that gross negligence is not a competent offence as it is included and defined in the annexure dealing with definition of offences in the Code of Conduct.

Competency of the complainant and his witnesses

This ground was also not pursued in submissions before me and I take it as abandoned.

Accordingly the decision of the divisions’ operations manager dismissing the applicant is set aside and the matter is remitted to the chief executive officer to make a decision in terms of paragraph D 6 of the Code of Conduct after interviewing the applicant.

Chinawa Law Chambers, respondent’ s legal practitioners