Lovemore Tunduwe v Cross Country Containers

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/114/2014
HELD AT HARARE ON 28 JANUARY 2014
CASE NO. LC/H/960/2012
JUDGMENT NO. LC/H/114/2014
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IN THE LABOUR COURT OF ZIMBABWE      	JUDGMENT NO. LC/H/114/2014

HELD AT HARARE ON 28 JANUARY 2014		CASE NO. LC/H/960/2012

& 28TH FEBRUARY 2014

In the matter between:-

LOVEMORE TUNDUWE						-	Appellant

And

CROSS COUNTRY CONTAINERS				-	Respondent

Before The Honourable B.T Chivizhe: Judge

For Appellant	-	Mr A. Mapfumo (Trade Unionist)

For Respondent 	-	Ms A. Mupondi (Human Resources Officer)

CHIVIZHE J,

The appeal is noted against the determination of the Managing Director dated 21 November, 2012 which determination resulted in appellant’s conviction on the misconduct charges and the imposition of a dismissal penalty with immediate effect.

The background facts to the matter are as follows:

The Appellant was employed by the Respondent as a driver.  He also carried the position of Secretary of Workers Committee.  On the 12th of November, 2012 he  was notified to attend a disciplinary hearing to face three alleged misconducts under the relevant code viz;

Insubordination - offence 3.7

Use of abusive words indicating ridicule or contempt to your supervisor – offence 3.6

Inciting an unlawful industrial action – offence 6

The Disciplinary Committee found him guilty on all three charges and reached a deadlock on the sanction.  The matter was then referred to the Managing Director in terms of the provisions in the relevant Code i.e. Transport Operating Industry Codeof Conduct, Statutory Instrument 67 of 2012.  The Managing Director through a letter dated 21 November 2012 advised Appellant of his decision to uphold Appellant’s conviction on the charges.  He then after weighing the aggravatory features of the case imposed a dismissal penalty.  The Appellant dissatisfied with the decision then noted the present appeal.

The appeal was noted on the following grounds of appeal;

“1.  Insubordination

At Cross Country Containers there is no standing instructions which compel all drivers to duty while the struck is under repair in the workshop.

Therefore the Chief Executive misdirected himself when he said that the appellant was insubordinate.  The fact that the employee come to work, though late proves the fact the employee availed himself.  Furthermore, the truck was still in workshop undergoing repair.

The issue of insubordination is neither here nor there because there was no standing instruction which was given to the appellant.

Inciting an unlawful industrial action

It is not true that the appellant was part of the petition.  The appellant because of his position in the workers committee made it easy for the news of his case to be heard by all the employees in the company.

All the witnesses called did not mention that the appellant incited them to write the petition.  The complainant should have produced written evidence to prove that other drivers were made to sign the petition by the appellant.

The Chief Executive ignored the witnesses statements though they form the basis of the case.”

On the date of hearing the Appellant abandoned his first ground of appeal and pursued the ground in respect of the charge of “inciting an unlawful industrial action” The Appellant’s argument wasthat although he admitted that there was a petition authored by his fellow drivers he did not take part in the petition.  He therefore did not incite his fellow drivers to draw up the petition threatening the Respondent with an industrial action in the event of his conviction on the charges.  It was Appellant’s further submission that in their evidence before the disciplinary committee all the witnesses had failed to prove that he had incited the other drivers to draw up the petition threatening industrial action in the event of his conviction.  Finally it was Appellant’s submission that the Chief Executive had ignored the crucial evidence of the witnesses which exonerated him from the charge of incitement.

The Respondent’s position is that, contrary to his submissions the Appellant communicated with the Workers Committee as well as the other employees regarding his pending disciplinary hearing.  It was as a result of this action the other drivers had authored the petition in which they were threatening to go on an unlawful industrial action.  It was also Respondent’s submission that the evidence of the witnesses in particular James Gwariya’s evidence pointed to Appellant communicating directly with the drivers informing them of his pending charges.  On that basis it was Respondent’s position that the Appellant had been properly convicted on the charge.  As the Appellant had a checkered employment history the Respondent had consequently imposed a penalty of dismissal from employment.Before the court the Respondent’s Representative failed to substantiate that Appellant had previous written warnings.  It was pointed out to her by the court that a warning being a disciplinary measure a hearing should have been held before it was issued (See Director ofWorks& Anor vs Nyasulu & Ors 2002 (1) ZLR 2658 (S).  The Respondent’s Representative consequently withdrew hersubmission on that point.  She however persisted with the argument that the charge leveled carrying as it were the penalty of dismissal on the first breach the penalty of dismissal was consequently properly arrived at.

The relevant Code of Conduct i.e. Collective Bargaining Agreement: TransportOperating Industry, Statutory Instrument 67 of 2012 carries no definition for the charge of ‘inciting an unlawful industrial action’.Annexure IDefinition of offenses paragraph 43 however defines ‘instigating or taking part in unlawful job action’ as follows:

“It is a misconduct for an employer or employee to instigate or take part in unlawful   job action.”  It is not clear whether the offence of ‘inciting’ in Annexure 2 under which the Appellant was charged is the same as ‘instigating or taking part in unlawful job action’ as  provided in paragraph 43.  In the absence of a definition of the charge in the relevant Code of Conduct the Court had to look at other sources.  The Oxford Advanced Learners’ Dictionary7thEdition Published Oxford University Press 1948 defines ‘incite’ to mean ‘to encourage to do violent, illegal or unpleasant especially by making them angry or excited.’

By adopting the ordinary and grammatical meaning of the term ‘incite’ it is clear the Appellant’s conduct was meant to incite his fellow drivers to go at the very least on an industrial action or take some unspecified action against the Respondent.  This is clear from a perusal of the evidence in the record.   The record shows that before the disciplinary committee Appellant submitted that he had told the Workers Committee and no one else.  Contrary to the submission the witness driver James Gwaringetestified before the same committeethat they (the witness and an unspecified number of other drivers) had called Appellant to clarify rumours they had heard that Appellant was pending a disciplinary hearing.  It was his evidence further that when he spoke with Appellant they were on a speaker phone.  It was his further evidence that after the conversation with Appellant the drivers had agreed to write a petition and send it to management.

It is clear that even though no direct evidence was led to establish that Appellant deliberately set out to incite the other drivers theevidence of Gwaringe was clear that after being informed of Appellant’s pending disciplinary hearing the other drivers felt compelled to pen the petition which they then delivered to management carrying the threat of an unlawful industrial action.  It was also clear from Gwaringe’s evidence that Appellant had told not only the Workers Committee but also Gwaringe and other drivers whose number the disciplinary hearing committee could not establish. I am on the basis of the evidence in the record satisfied that the Appellant was clearly guilty on the charge of incitement.

The defense raised by the Respondent that the threat of an industrial action was eventually not carried outis in my view immaterial.There could be factors that militated against the carrying out of the job action which the court has not been made privy to. The bottom line however is that through his conduct he had incited the other drivers to write a petition threatening the productivity of the company by going on an industrial action.  That conduct the employer viewed as serious and threatening the harmonious relations at work.  The charge carrying at it were a penalty of dismissal on the first breach the Appellant was therefore correctly dismissedfrom employment.

The appeal is dismissed with no order as to costs.