Mairos Manhumira & 5 Others v Home and Industrial Services

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO, LC/H/117 /2014
HELD AT HARARE ON 13 JUNE, 2013 & CASE NO.
JUDGMENT NO. LC/H/117/2014
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IN  THE LABOUR COURT OF ZIMBABWE  JUDGEMENT NO, LC/H/117 /2014

HELD AT HARARE ON 13 JUNE, 2013 &		 CASE NO. LC/H/554/2012

AND 28 FEBRUARY 2014

In the matter between:-

MAIROS MANHUMIRA & 5 OTHERS			-	Appellant

And

HOME AND INDUSTRIAL SERVICES			-	Respondent

Before The Honourable B.T. Chivizhe:  Judge

For Appellant	-	Mr R. Jumbe (Trade Unionist)

For Respondent	-	Mr G. Makings  (Legal Practitioner)

CHIVIZHE, J.

This is an appeal against the decision of the Respondent’s Appeals Authority handed down on 4 July 2012 which decision confirmed an earlier decision by the Disciplinary Authority finding the Appellant guilty on the charge of unlawful job action and subsequently imposing a penalty of dismissal in respect of all the Appellants.

The appeal has been premised on three grounds.  The first is that the strike was not declared illegal by the Labour Court.  The second is that the employer did not apply for show cause order in terms of the Labour Act [Cap 28:01].  The last ground is that on the basis of the suspension letter the Respondent went for a pre-determined hearing and that prejudiced Appellant as a fair hearing.

The brief facts of the matter are as follows:

The Appellants were employed as general hands.  They did not have specific duties.  On the 2nd of February 2009, the Appellant reported for duly as usual.  At around 10am at break time the Respondent’s Representative presented himself to the Appellant and indicated that he no longer was in a position to pay Appellants the balance of $20 previously promised.  There was disagreement between the parties and the Respondent Representative ordered the Appellant to go and report that matter to the National Employment Council for the Mining Industry.  The Appellant went to the National Employment Council and when they came back they were served with suspension letters.  The Appellants were later dismissed following a disciplinary process on charges of unlawful collective job action.

The matter came on appeal to the Labour Court.  In his judgment dated 05 April 2012my brother, Musariri J found that although the Appellant were properly found guilty on the charge there were mitigating circumstances such that dismissal penalty was not warranted.  He noted that the Respondent had reneged on a promise previously made to award the employees the increment granted by the National Employment Council.  The Respondent had also only applied for an exemption from paying the increment on the same day as the alleged unlawful job action.  Musariri J noted that although the offence had been committed it arose from a legitimate grievance by the employees.  In conclusion he noted that in view of other procedural irregularities in the disciplinary process such as holding hearings en masse and failing to receive mitigation he then handed down an order in the following terms:

“Wherefore it is ordered that;

The appeal is hereby allowed to the extent that the dismissal of the Appellant by the Respondent are set aside; and

The matter is remitted back to the Respondent for a re-hearing of the appropriate penalty in respect of the individual Appellants within the next 60 days of handing down of this judgment and;

Pending the hearings in paragraph 2 each Appellant shall be deemed to be on suspension without pay and benefits.”

Before addressing the merits of the appeal I would like to address a point which although not taken by the Appellants is indeed a point of law which this court is entitled to raise.  The point is that the Respondent having failed to comply with a competent order of this Court consequently has no clean hands before the court.  It is clear from a perusal of the order by my brother, Musariri J that the Respondent was ordered to reconsider the issue of penalty.  The Respondent instead of convening rehearing on the issue of penalty as directed convened fresh disciplinary hearings.  This was in my view highly prejudicial to the Appellants as it was implicit in Musariri J’s order that because of the mitigating circumstances the   dismissal penalty was not appropriate.  Needless to point out the Respondent convened fresh individual hearings and once again imposed dismissal penalty to the Appellant’s prejudice.

It is the plain and unqualified obligation of every person to obey a judicial order unless same has been set aside (see Commissioner of Police vs Commercial Farmers Union 2000 (1) ZLR 503 (H).  The order must be complied with before one comes to court.  Failure to so comply shows a disdain of the court and its processes which disdain impedes the course of justice.

The issue of Respondent’s failure to comply with the order by Musariri J was raised with Respondent Counsel during the proceedings.  He submitted that the effect of Musariri J’s order was to direct fresh individual hearings in respect of all the Appellants rather than the collective hearing.  In his heads Respondent’s Counsel reiterated the same position.  Nothing could be further from the truth.  Legal Practitioners have an obligation to advise clients correctly and ensure that orders are complied with.  It is clear Respondent has not complied with Musariri J’s order. Respondent’s Counsel suggested that it was in the first place improper for the court to direct imposition of a penalty less than dismissal. The Respondent having failed to note an appeal against that order Respondent cannot cry foul at this late stage.  The order by Musariri J being a competent order of this Court in my view continues to subsist until such a time the Respondent complies with the order.  The second disciplinary hearings and penalties are clearly therefore a nullity.  It is my intention to quash the same. There is consequently no appeal before this court.

It is accordingly ordered as follows;

The second disciplinary hearings and penalties imposed by the Respondent be and are hereby quashed.

The Respondent is directed to comply with the order by Musariri J dated 5 April 2012.

There is no order as to costs.