Lameck Chirande v Phoenix Consolidated Industries Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC-H-90-16
HELD AT HARARE, 13 JULY 2015
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE		JUDGEMENT NO LC-H-90-16

HELD AT HARARE, 13 JULY 2015				CASE NO. LC/H/336/15

AND 19th FEBRUARY, 2016

In the matter between

LAMECK CHIRANDE 						Appellant

And

PHOENIX CONSOLIDATED INDUSTRIES LIMITED	Respondent

For Appellant	:	Mr G Pendei  (Legal Practitioner)

For Respondent	: 	Mr E. F Maphosa (Legal Practitioner)

CHIVIZHE, J;

The appeal is against a determination handed down by the National Employment Council (NEC) for the Plastic Manufacturing industry on the 7th of October 2013 which determination confirmed Appellant conviction on a charge of violating health and safety regulations for failure to wear protective clothing provided by the employer and the penalty of dismissal consequently imposed. The appeal is opposed.

The Appellant was employed by the Respondent.   On the 1st of May 2013 the Appellant was discovered upon an inspection to be wearing the safety clothing not provided by the employer. He was wearing an old and phased out overall instead of the new work suit provided by the employer. The Appellant was charged by the Respondent of violating the health and safety regulations for failure to wear protective clothing as provided by the employer. He was arraigned before a Disciplinary Authority on the 17th of June, 2013 to answer the charges of violation of Section 2, subsection 10 (ii) of the National Employment Council for Plastics Manufacturing Industry i.e. “Failure to or refusal to wear safety clothing equipment provided by the employer.”

Before the Disciplinary Authority the Appellant defense was that he chose to wear the old overall as it was loose around his wrists. The work suit jacket on the other hand was too long and presented the danger of loose material being caught in the main shaft. Upon being asked as to whether it was not safer to wear long-sleeved work suit in the dusty environment he responded that it was not hazardous to wear the short-sleeved overall because the environment was free of dangerous chemicals

The Disciplinary Committee after deliberations found the Appellant guilty on the charge. They then on the basis of a prior final written warning that Appellant was still sitting on imposed a penalty of dismissal from employment. Dissatisfied the appellant noted an appeal against the Disciplinary Committee determination to the National Employment Council for the Plastics Manufacturing Industry Appeals Committee. The NEC Appeals Committee in a determination handed down on the 7th of October, 2013 dismissed the appeal and upheld the decision of the disciplinary Committee. Still aggrieved the Appellant then noted the present appeal.

The appeal is premised on the following grounds of appeal;

The NEC erred in finding that the Appellant was guilty as charged when the facts of the matter point to the contrary. Such factual misdirection by the NEC is grossly unreasonable as to culminate into an error of law.

The NEC also erred when it failed to find that the Appellant did not violate any health and safety regulations as he was wearing protective clothing provided by the employer.

Ultimately the NEC erred in finding dismissal as the appropriate remedy.

In regards grounds of Appeal number 1 it was submitted on Appellants behalf that the Respondent failed to establish material facts to prove the charge leveled against Appellant. The Appellant in his defense before the disciplinary committee admitted to have been wearing old overalls and not the new suits provided by the Respondent. He had explained that he had done this for his benefit and personal safety. The overalls would pose no danger as the sleeves were short whereas the work suits with the long sleeves posed a danger/risk. It was Appellant contention that the Appeals Committee had erred in disregarding the explanation so tendered. It was Appellant’s further submissions that the Respondent had failed to establish the Appellant had refused to wear the protective clothing it provided. There was also no company policy existing which disallowed the employees from resorting to the old uniforms once they had been issued with new work-suits as in this case. In any event the failure to wear the new work-suit could not be regarded as a material breach of the employment contract or the health and safety regulations for that matter. Finally it was Appellants submission that the Disciplinary Committee had erred in imposing the dismissal penalty as the purported misconduct was not serious as to warrant dismissal from employment. The act of misconduct was not of a serious nature as to undermine the employment relationship between the parties. On this basis the Appellant prayed that the appeal be allowed and the Respondent ordered to reinstate him or in the alternative pay damages in lieu of reinstatement.

The respondent position is that it is the employer’s duty to provide and prescribe the form of protective clothing for its employees. The overalls that Appellant was found wearing had been phased out and were not regarded as safe. The Respondent also emphasized that it was the Appellant who in his capacity as Chairman of Workers Committee had demanded the new work suit citing the overalls were no longer protective. The Respondent had agreed and introduced the new work suit only for the Appellant to then turn around and claim that the work suit was not protective. The respondent urged the court to disregard the Appellant arguments tendered that he had faced no harm/risk by wearing the inappropriate overalls; that the overalls were safer; that he had also communicated the need to cut the overall sleeves to his superiors as the overalls were in any event phased out and replaced with work suits a fact clearly admitted by the Appellant himself. It was Respondent submission that the NEC Appeals Committee determination in the light of the facts and evidence was a reasonable decision. In regards the penalty whilst it was correct that the misconduct itself was not so serious as to undermine the employment relationship and therefore to warrant a dismissal penalty on conviction the Appellant however was sitting on a final written warning. In terms of the code of conduct a dismissal penalty could then be properly imposed. On this basis it was Respondent position that the decision by the NEC Appeals committee upholding the dismissal penalty was proper.

There are in my view two issue for determination in this appeal. The first is whether the Appellant was properly found guilty on the charge and the second issue is whether the penalty of dismissal was properly imposed in the circumstances.

The charge leveled against the Appellant was that of violation of Section 2, Subsection 10 (ii) of the National Employment Council for the Plastics Manufactory Industry i.e. “Failure or Refusal to wear safety clothing and equipment provided by the employer.”  It is indeed correct as alluded by the Respondent the duty of the employer is to provide and design the correct safety clothing for the employees. In this case the respondent submits that the employer had introduced the work suits which the employer regarded as the correct safety clothing. By putting on the phased out overalls the Respondent viewed that as an act of misconduct. The NEC Appeals Committee in its determination also agreed.

The NEC Appeals Committee findings in my view were grossly unreasonable for the following reasons.

Firstly the charge by its nature required the Respondent to establish that the Appellant had deliberately chosen to wear an old overall instead of the work suit as an act of defiance. In order to establish that the Respondent had to show that Appellant had been approached on at least more than one occasion and had been reprimanded from wearing the old overall and had nevertheless persisted with that conduct. Secondly the Respondent should have established that although the employees had been issued with the work suits it had also been brought to the attention of the employees that the employees could no longer wear phased out uniforms and if they did they would face misconduct charges. It was not reasonable in my view for Respondent to have approached the Appellant in circumstances where no clear guidelines/policy was in place on the subject and then immediately charge the employee with an act of misconduct. The respondent had to establish that the Appellant was stubborn and had persistently refused to wear the new uniform. In the absence of such evidence it was not in my view proper to convict the Appellant on the charge.

The charge leveled against the Appellant was of failure or refusal to wear protective clothing provided by the employer. The Appellant’s conduct did not amount to failure or refusal to wear protective clothing provided by the employer. It could not be disputed that the old overall that he was wearing was also provided by the Respondent. The act or conduct that Respondent was not happy with was Appellant’s failure to wear the new work suits provided by the employer.  In order for employee conduct to be an act of misconduct it must clearly be spelt out through policy guidelines what conduct is considered reprehensible. The Respondent in disciplinary hearing did not allude to any policy guideline that stipulated that it would be an act of misconduct for one to wear the old safety clothing instead of the new safety clothing. In the absence of such a policy guideline it was not open in my view to the employer to charge an employee especially on the first occasion that he committed the transgression. The decision by the NEC Appeals Committee in my view was grossly unreasonable in that regard.

The Appellant also presented evidence during the disciplinary hearing that he had decided to wear the overalls because the environment where he was working did not require long-sleeved clothing. It was his view that he was safely protected. No evidence was tendered by the respondent to rebut the assertion. The Disciplinary Committee on its part simply entered a guilty verdict on the charge without even elaborating on the reasons for their determination. The disciplinary committee ought to have at least addressed the issues raised in Appellant defense and handed down their findings in respect of these issues. The NEC Appeals Committee in their determination then provided the reasons for the decision arrived at by the Disciplinary Committee. That in itself was not proper. It is not the role of the appeals authority to formulate the reasons for a verdict imposed by the disciplinary authority.

Having come to the conclusion that the NEC Appeals Committee errd in finding the appellant guilty on the charge it will not be necessary for the Court to address the second aspect as to whether dismissal penalty was appropriate. The appeal must therefore succeed

In the circumstances the Courts hands down the following order;

The appeal succeeds.

The determination handed down by the National Employment Council (NEC) for the Plastic Manufacturing Industry on the 7th of October 2013 is hereby set aside.

The respondent shall reinstate the appellant to his original position without any loss of salary or benefits, with effect from the date of unlawful dismissal.

In the event that reinstatement is no longer tenable the respondent shall pay appellant damages in lieu of reinstatement the quantum of which will be agreed to by the parties failing which either party can approach the Labour Court for quantification thereof.

Machaya and Manyangadze Law Chambers – appellant’s legal practitioners

Chirenje Legal Practitioners – respondent’s legal practitioners