Lovemore Denhere v National Employment Council Appeals Committee for the Chemicals and Fertilisers Manufactory Industry

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/357/16
27TH JANUARY 2015 HELD AT HARARE
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE        JUDGEMENT NO. LC/H/357/16

27TH JANUARY 2015  HELD AT HARARE                    CASE NO. LC/H/517/14

In the matter between:-

LOVEMORE DENHERE                                           -Appellant

The appeal was noted against the decision of the National Employment Council Appeals Committee for the Chemicals and Fertilisers Manufactory Industry dated 10th June, 2014.

The Appellant was employed by the Respondent. He was charged with ‘wilful disobedience to a lawful order given by a person in authority (Section 8, Schedule 4.2) of the relevant Code of Conduct and secondly of ‘Any act, or conduct or omission inconsistent with the fulfilment of conditions of the express or implied conditions of one’s contract’. On the first charge the allegation was that on the 21st of February 2014 the Appellant had refused to accept or acknowledge receipt of a letter advising of an ongoing investigation which letter required Appellant’s response. On the second charge the allegation was that the Appellant had breached confidential business matter through a letter of complainant sent to Dulux South Africa which letter was received by Dulux Zimbabwe on the 17th of February, 2014. The Respondent allegations was that the Appellant had in his capacity as a members of Workers Committee helped to draft the letter and had then signed the letter along with a number of employees. The Appellant was arraigned before a Disciplinary Committee on the 12th of March, 2014. The Disciplinary Committee returned a Not Guilty verdict on the first charge and a Guilty verdict on the second charge. A penalty of dismissal was consequently imposed Appellant exercising his rights under the Code of Conduct Appellant then appealed to the Executive Chairman of the Group.

In his grounds of appeal Appellant raised the following issues. That the disciplinary Committee had erred in finding that the presence of Mr A Mwanza was proper; that the disciplinary committee had also erred in finding that the presence of Mr C. Mutasa as the complainant’s representative was also proper, that the disciplinary committee erred in reaching a guilty verdict in the absence of the reasons for such a finding; lastly that the penalty imposed in any event was too excessive and unwarranted. The Appeals Authority in its decision handed down on the 25th March 2014 upheld the Disciplinary Committee findings on the second charge and it altered the finding to guilty on first charge. The Appeals Authority then confirmed the dismissal penalty. The Appellant still aggrieved then noted an appeal to the National Employment Council Appeals Committee. The National Employment Council Appeals Committee then handed down its determination on the 10th of June, 2014 dismissing the appeal and upholding the determination and penalty imposed by the appeals authority. The Appellant dissatisfied then noted the present appeal.

The grounds on which the appeal is noted are basically as follows;

The National Employment Council Appeals Authority grossly misdirection itself at law when it found that Statutory Instrument 131 of 2011 does not preclude represent of the Respondent as the complainant in a hearing and that the presence of a Respondent’s representative did not influence the outcome of the hearing when it is clear that the Code does not provide such representation and that the decision of the disciplinary committee was based on the submissions of the Respondent which came from the representative.

The National Employment Council Appeal Authority grossly misdirected itself when it found no fault with Mwanza’s presence in the hearing panel.

The National Employment Council Appeals Authority on its finding (5) erred when it failed to give a remedy to its correct finding that it was improper for the Appeals Officer to give his decision on a charge that was not subject of an appeal thus it failed to appreciate that the Appellant was execrated from the wilful disobedience to a lawful order.

The National Employment Council Appeals Authority grossly misdirected itself on its finding (6) when it failed to appreciate the most important fact for an employee to be found guilty of any act or omission inconsistent with the fulfilment of his or her expressed or implied conditions of employment and the facts to the charge cannot be determine in isolation. Thus it erred in not finding that the Appellant was not guilty.

The Appeals Authority seriously misled itself on its finding (7) by failing to appreciate that Appellant’s ground of appeal number 7 which was meant to prove that the Appellant did not divulge confidential information and that even if he is to assume that there was confidential information in the letter the Appellant did not know that he had not to communicate as he did.

The Appeals Authority seriously misdirected itself when it failed to find that there was selective disciplinary of employee by the Respondent and the dismissal was not appropriate under the circumstances.

The Respondent took a point in limine that the grounds of appeal to the extent that they raise procedural irregularities in the disciplinary proceedings raise grounds for review rather than appeal grounds. To that extent the Respondent contends that there is no appeal before the Court and the Court ought to properly dismiss the purported appeal. The Appellant does not agree contending instead that the grounds are indeed grounds of appeal and are properly before the Court. It is Appellant contention that the grounds do not challenge per se the procedural irregularities in the hearing before the National Employment Council Appeals Authority. Instead the grounds challenge the substance of the determination by the National Employment Council Appeals Authority of the issues placed before it which issues pertained to amongst others procedural irregularities by the disciplinary committee. The Court agrees with Appellant submission on this point. For that reason the grounds of appeal are properly raised before this court.

To turn to the grounds of appeal. The Appellant has largely relied on procedural irregularities to challenge the disciplinary proceedings. The general position is that not all procedural irregularities in disciplinary proceedings convened under codes of conduct are sufficient to vitiate those proceeding. Disciplinary proceedings are liable to be set aside where one can establish that he was prejudiced by the irregularity. See Nyahuma vs Barclays Bank (Private) Limited 2005 (2) ZLR 435 (S).

The first ground of appeal alleges that the NEC Appeal Authority grossly erred when it found that the relevant code does not preclude representation of the complainant in a disciplinary hearing. Appellant further alleges that the NEC Appeal Committee erred when it concluded that the presence of the complainant’s representative Mr Mutasa did not influence the outcome of the disciplinary hearing.

It is the position at law that where a Disciplinary Committee established in terms of the code of Conduct is not properly constituted the disciplinary proceedings are rendered null and void. See Madoda vs Tanganda Tea Limited 1999 (1) ZLR 374 (S) and 379C. It is the correct position indeed that the relevant code in casu Statutory Instrument 31 of 2011 does not provide for a representative for the complainant. The NEC Appeal Committee finding was that even through the code was silent it did not preclude the presence of such a person. It was the committee’s further finding that they had failed to find that the presence of Mutasa influenced the outcome of the disciplinary hearing.

It is clear that the relevant code i.e Statutory Instrument 31 of 2011 make no provision for the complainant’s representative. He was clearly a stranger in those proceedings. On the basis of MMCZ vs Mazvimari 1995(2) ZLR 128 (S) and Madoda vs Tanganda Tea Co Limited 1999 (1) ZLR 374 (SC) the proceedings become voidable at the instance of the employee unless if it can be shown by the employer that no prejudice was suffered as a result of the presence of the party. The Respondent submitted that there was no such prejudice. A perusal of the record showed that apart from one instance where Mr Mutasa contributed on page 6th of the record he did not actively participate in the disciplinary hearing. Mr Mutasa was also excused when the Disciplinary Committee retired to deliberate on the charges. Mr Mutasa participation was on the facts in the record clearly not prejudicial to the Appellant. His conduct was clearly different from the conduct of the consultant in Merchant Bank of Central Africa vs Dube 2004 (1) ZLR 155 (S) where the consultant actively participated in a way calculated to prejudice the employee. The ground of appeal clearly cannot succeed.

The next ground of appeal attacks the NEC Appeal Committee findings in respect of the presence of Mr Mwanza in the hearing in circumstances were the Appellant allege that he had also taken part in the investigation of charges. The NEC Appeal Committee found that Mr Mwanza did not take part in the investigation. He was only present when a letter requesting Appellant to respond to the allegation was presented to him. Mr Mwanza presence was justified by the provisions of code that required that notification of allegations had to be done in the presence of another employee. On this basis the NEC Appeal Committee found that Mr Mwanza did not participate in the investigation process. The Appellant failed to establish before the NEC Appeal Committee and before this court Mr Mwanza’s role in investigation and that he was prejudiced by Mr Mwanza’s presence in the hearing. The ground of appeal also stands to be dismissed.

The next ground of appeal is clearly merited. The NEC Appeal Committee did find that it was improper for the appeals officer to have handed down a guilty verdict on a charge that the Disciplinary Committee had already found the Appellant not guilty. The NEC Appeal Committee ought to have struck down the Appeals Officer conviction on that charge and reflected this in their final determination. They ought to have then reconsidered the issue of the penalty as Appellant conviction on one of the charges was essentially expunged.

Grounds of Appeal number 4 alleges that the NEC Appeal Authority grossly erred when it failed to find that Appellant was not guilty on the charge of an act or omission inconsistent with the fulfilment of his express and implied conditions of employment in the circumstances where no evidence of those express conditions were tendered before the Disciplinary Committee. This ground is not very clear. But if the submission being made is that there was need for the employer to have produced the express terms of the contract in order to prove the charge then the submission is clearly misconceived. It is not a requirement for an employer to produce the actual contract of employment in order to discharge the onus on it to prove the misconduct. The employer only needs to show that the misconduct is inconsistent with the fulfilment of either the express or the implied conditions of the contract of employment to the extent that the substratum of the employee – employer relation are destroyed see National Foods Limited vs Masukusa 1994 (1) ZLR 160 (5). The NEC Appeal Committee finding on this point was that Appellant conduct was inconsistent with the implied terms of his employment contract and the fact that no contract was produced was immaterial. The NEC Committee clearly did not err in their findings in this regard.

The Appellant noted his appeal largely based on technical issues. The Appellant has not challenged the NEC Appeal Committee decision on the merits. On the authority of Air Zimbabwe (Private) Limited vs Chiku Mensa a person guilty of misconduct should not the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee. He should escape such consequences because he is innocent.

The Appellant does not dispute that she wrote the letter to Dulux South Africa. It is also not in dispute that Dulux South Africa was not a Stakeholder in Dulux Zimbabwe. The tone of the letter itself was such that it contained accusations, it made allegations against the Appellant employers. The fact that Appellant wrote the letter on behalf of the other employees is really neither here nor there. The fact that Appellant wrote the letter in her capacity as Workers Committee Member does not reduce her blameworthiness. There was clearly a material breach of confidence in writing the letter to Dulux South Africa which organisation was not a stakeholder in Respondent. The Appellant was properly charged for inconsistent behaviour.

The charge itself being a very serious charge it was serious enough to warrant a dismissal penalty unless the Appellant could show that her misconduct, though technically inconsistent with the fulfilment of the conditions of her contract, was so trivial, so inadvertent, so aberrant or otherwise so excusable that the remedy of dismissal was not warranted. See Tobacco Sales Flour Limited vs Chimwala 1987 (2) ZLR 210 (S). I am satisfied that the Appellant in this case failed to show before the NEC Appeals Committee that her conduct was trivial or not so serious as to warrant a dismissal penalty. The NEC Appeals Committee decision on this aspect cannot be faulted therefore.

The appeal stands to be dismissed with costs as I hereby do.

Machaya and Associates – appellant’s legal practitioners

Matsikidze and Mucheche – respondent’s legal practitioners