Lawrence Muguraguri v Nissan Clover Leaf Motors

### Preamble
IN THE LABOUR COURT
JUDGMENT NO. LC/H/458/2013
HELD AT HARARE 17 & 27 SEPTEMBER 2013
CASE NO.
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IN THE LABOUR COURT 			           JUDGMENT NO. LC/H/458/2013

HELD AT HARARE 17 & 27 SEPTEMBER 2013	     CASE NO. LC/REV/H/11/2013

In the matter between

LAWRENCE MUGURAGURI					Applicant

And

NISSAN CLOVER LEAF MOTORS				Respondent

Before The Honourable P. Muzofa; Judge

For Applicant 	-	Mr. Mandikumba (Legal Practitioner)

For Respondent	-	Mr Makings (Legal Practitioner)

MUZOFA P.;

This is an application for review.  The Applicant was charged for contravening Section C, part (VIII) of the Zimbabwe Motor Industry Code, being gross incompetence or inefficiency in the performance of his duties.  This is a dismissible offence in terms of the code.  He appeared before a disciplinary committee which found him liable and imposed a dismissal penalty.  Applicant appealed against the decision of the disciplinary committee mainly in that the penalty was too harsh he should have been demoted to a lower grade.  He did not challenge the verdict.  The Appeals Committee dismissed the applicant’s appeal.  Dissatisfied by the said decision the applicant approached this court for a review of the proceedings conducted against him.

The grounds relied upon are set out as follows:-

The grounds upon which the misconduct allegations were raised in the notification letter were not clear, As a result applicant attended the hearing ill-prepared.

The Code of Conduct require that the Human Resources Department carry out investigations upon receiving a letter of complaint from the supervisor raising complaints of misconduct against the employee.  In this case no investigations were conducted, rendering the proceedings a nullity.

The Code of Conduct provided that the notification letter containing the misconduct allegations be prepared by the Human Resources Manager in this case it was issued by the Operations Manager.  This breach renders the proceedings a nullity.

The code does not provide for a management representative and the presence of one Mungure a management representative renders the proceedings a nullity.

The Code provides for one hearing official to preside and determine the hearing.  The hearing official appointed to hear the matter was the Human Resources Manager.  In this matter the panel composition ended up consisting of two officials namely the Human Resources Manager and the Finance Manager.  This panel was ill-composed and this renders the decision to terminate applicant’s contract of employment illegal.

The allegations of gross incompetence and inefficiency raised against applicant are trumped up charges as they donot resonate with evidence in the personnel file.

Respondent used an unregistered Code of Conduct to dismiss Applicant which is a breach of Section 12B of the Labour Act and Section 5(a) of S.I. 15 of 2006.

For the above reasons applicant’s prayer was that the decision to dismiss him be set aside and that he be reinstated without loss of salary and benefits.

The law where a party alleges procedural irregularities is clear.  In order to succeed in having the proceedings set aside on the basis of a procedural irregularity, it must be shown that the party concerned was prejudiced by the irregularity,  see Tichawana Nyahuma v Barclays Bank SC67/05.

At the onset of argument, the applicant’s legal representative submitted that they will not pursue the ground of review 7.  This was because they accepted the Respondent’s assertion that the Code of Conduct was registered and they didnot have any evidence to prove otherwise.

I will now deal with the grounds for review as presented before this court.

That the allegations leveled against the applicant were unclear.

In the grounds for review, it was alleged that the applicant appeared before the disciplinary committee ill-prepared since the allegations were unclear.  It seems the applicant then abandoned this ground of review, for it was neither argued before this court nor was it included in the applicant’s Heads of Argument.  It remained a bare allegation.  On that basis alone, this ground is dismissed.

That the Human Resources Department did not carryout investigations in terms of the Code of Conduct.  						          The applicant allege that the Code of Conduct provide for a nine stage investigation which was not strictly adhered to, particularly in that no investigations were carried out.  On behalf of the Respondent it was submitted that a proper investigation was carried out that resulted in the evidence used against the Appellant in this matter.

The Code of Conduct provides for the disciplinary procedure, where an immediate supervisor believes an offence was committed, he should investigate and if he is satisfied that there is an offence that was committed he was to raise a complaint form.  Secondly the complaint form is submitted to the Branch or Senior Manager who has to ask the employee to respond to the allegations in writing.  Thirdly upon receipt of the response the Branch Manager or Senior Manager has to consider both documents and submit copies to the Human Resources Manager.  Fourthly the personnel department has to carry out investigations, thereafter advise the Branch Manager or Senior Manager either to solve the issue through conciliation or call for a hearing.  In this case a complaint was filed on the 24th of November 2012.  It is not clear who was the recipient of the complaint form.  The record shows that the appellant filed a response to the allegations on the 10th of December 2012 the date he was notified to attend a hearing.

There is nothing in the record to show that there was communication between the Human Resources Department and the appellant’s line managers.  However at the hearing it is clear that evidence was led (addendum 1-11) to prove the appellant’s alleged incompetence.  These were documents that were part of the normal business at the Respondent company.  I believe the intention of authors of the Code of Conduct was to make sure there is evidence against a potential offender, to this extent there were to be investigations carried out by the immediate supervisor and by the human resources department.  In this case the fact that there was evidence produced against the appellant before the disciplinary authority shows that there was an investigation.  It was not shown by counsel for the appellant what prejudice was suffered as a result of the failure to comply strictly with this aspect of investigations.  The wording of the Code of Conduct is that the human resources manager may advise the manager so it is not a mandatory procedure the human resources manager may not give advise, therefore the manager may proceed.  In the absence of any prejudice suffered by the appellant, this ground of review is dismissed.  In any event there was substantial compliance with the Code of Conduct.

That the notice to attend the hearing was issued by the operations manager  instead of the human resources manager.

The code of conduct provides that “….. After the investigations, the human resources manager may advise the manager to first try and solve the dispute through conciliation or call for a hearing.”

It does not say the human resources manager calls for a hearing.  It only provides for that department to provide guidelines, otherwise the manager who is the senior manager has to make decisions.  It was not established whether the operations manager was the senior manager who was the recipient of the complaint form.  That as it may be there is no fatal defect in the issuing of the notice letter that can vitiate the proceedings, appellant did not suffer any prejudice.  That notice letter whether issued by the operations manager or the human resources manager served one purpose, that he was to attend a hearing.  This ground of review is accordingly dismissed.

That the Code of Conduct provides for one hearing officer and does not provide for a management representative.

The Respondent’s Code of Conduct provides that:

“A member of senior management who is not party to the dispute or a senior person from the Personnel Department should be present at the hearing and act as an adviser and shall also chair the proceedings as hearing official.”

There is no provision for a management representative  nor a employee representative although the code provides that a member of the employees’ committee maybe invited.  During the proceedings before the disciplinary authority it is clear that there was a management representative and no employee representative.  It was submitted on behalf of the Respondent that it is its practice that both employee and management representatives are invited to such hearings to provide some balance.  In this case however, it was further submitted appellant had indicated that he did not require representation.  This is affixed on the notification of hearing and appellant signed to confirm that he did not require representation.  If indeed appellant understood the import of that denial of representation then he cannot be heard to be complaining.  However the fact remains that the code does not provide for a management representative.  During the proceedings before the disciplinary authority there is no evidence that the management representative cross examined the appellant.  This management representative’s role was clear after hearing of evidence for the record of proceedings of the 17th of December 2012 clearly has a caption “management deliberations.” There is no way the Chairperson could have deliberated on his own, he most likely deliberated with the management representative.  If the management representative’s role was confined to the leading of evidence or cross examination only it would have had a different impact.  He contributed to the ultimate decision, this is not provided for in the code of conduct.  Clearly this is undesirable and goes against advancing social justice and democracy in the workplace as provided in the Labour Act Chapter 28:01.  It is a gross irregularity that vitiates the proceedings of this matter.

It was applicant’s prayer that as a result of the irregularities vitiating the said proceedings he should be reinstated without loss of salary and benefits.  I donot believe this is an appropriate prayer.  A perusal of the documents filed of record show that when applicant filed an appeal before the Respondent’s Managing Director, he did not challenge the appropriateness of the verdict, he challenged the penalty.  In the application for review the applicant challenged the appropriateness of the verdict.  I believe there was evidence against the applicant to justify the verdict.  Applicant also admitted failing to meet targets for instance applicant’s communication addendum 9, page 30 of the record and also the communications to the applicant on page 27 and 28 of the record show that applicant was failing to meet targets.  I have no doubt in my mind that respondent proved its case on a balance of probabilities.

The appropriate order then cannot be reinstatement but to remit the matter for rehearing before a properly constituted disciplinary authority.  Reinstating the applicant would imply that applicant was innocent.  Bearing in mind that the applicant did not challenge the verdict on appeal to the Managing Director therefore the decision made was not on the merits.  It follows that the applicant be placed in the position he was prior to the hearing.  In the result the review is allowed.  Accordingly it is ordered as follows:

The proceedings before the disciplinary authority are hereby set aside.

The matter is remitted to be heard before a properly constituted disciplinary authority in terms of the Respondent’s Code of Conduct within 30 days of this order.

The applicant will be placed in the position he was prior to the hearing of the 17th of December 2012.

There shall be no order as to costs.

Chigwanda  - Applicant’s Legal Practitioners

Mr Makings -  Respondent’s Legal Practitoner