Manjese Justin v Lobels Bread (Pvt) Ltd

### Preamble
JUDGMENT NO. LC/H/158/2016
HARARE, 9 NOVEMBER 2015
IN THE LABOUR COURT OF ZIMBABWE
CASE NO. LC/H/158/2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/158/2016

HARARE, 9 NOVEMBER 2015	  		               CASE NO. LC/H/602/13

AND 18 MARCH 2016

In the matter between:-

MANJESE JUSTIN						Appellant

And

LOBELS BREAD (PVT) LTD				Respondent

Before Honourable R. Manyangadze, J

For Appellant 		-	Mr E. Maponga (Trade Unionist)

For Respondent		-	Mr A.T. Muza (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against an arbitral award handed down on 16 July 2013, which ruled that the appellant was lawfully dismissed from employment.

The brief factual background is that the appellant was employed by the respondent as Bakery Supervisor.  Sometime in 2006, an employee under the appellant’s supervision went off duty for more than 2 days.  There was no record of the off duty arrangement. It was done with without the approval of senior management.  It also emerged that employees would make verbal, internal arrangements whereby some would take days off with others signing on their behalf.

The appellant was charged with misconduct, being Wilful disobedience to a lawful order given by the employer and Any act, conduct or omission inconsistent with the fulfillment of the express or implied conditions of employment.

In February 2006, an internal disciplinary hearing found him guilty as charged, and imposed a penalty of dismissal.

The matter subsequently found its way to arbitration resulting in the arbitral award that confirmed the appellant’s dismissal from employment. This prompted the appeal to this court, against the arbitral award.

The grounds of appeal are stated as follows:

“The learned Arbitrator erred at law by considering that, a hearing was conducted yet the employer had failed to produce record of proceeding.

The one who purported to be the Chairman of the disciplinary committee was also the complainant in the purported hearing.

It is not true that Mr J. Manjese’s immediate supervisor was the complainant because he refused to be taken as the complainant during the purported hearing.

Why the employer raised an act of misconduct on an issue which was in practice even before Mr J. Manjese was engaged?

The Learned Arbitrator erred at law by disregarding affidavits which were commissioned before oath.

Why the employer denied workers committee members to be part of the disciplinary committee of the purported hearing?

Why the employer rushed to raise an act of misconduct without proper investigations?”

At the hearing of the matter, the respondent raised 3 points in limine.  These are:

that the grounds of appeal raise procedural issues that should be the subject of an application for review and not an appeal.

that the grounds of appeal do not raise points of law.

that the grounds of appeal are too broad and do not set out precisely the basis upon which the arbitral award is being challenged.

The respondent averred that on the basis of these preliminary points, the appeal is not properly before the court and should be dismissed.

Each of the grounds of appeal must be examined, to determine whether or not they properly constitute grounds of appeal, in the light of the preliminary points raised by the respondent.

Ground 1

It is not clear why this ground was raised. A look at the submissions made on behalf of the appellant before the arbitrator, shows that the appellant never put in issue the fact that a hearing was held at the work place.  In the appellant’s submissions at the arbitration hearing, it is stated;

“The initial hearing was conducted on the 6th of February 2006 and the employee was dismissed forthwith.”

It is therefore not clear in what way the arbitrator misdirected herself. She simply confirmed what the appellant himself submitted, that a hearing took place which led to his dismissal.  This ground of appeal is imprecise, as the court is failing to appreciate what it is the appellant is impugning in the arbitral award.

The need for clear, specific, and precise grounds of appeal was highlighted in the case of Christopher Nyamukapa v The State: HH 60/11.

Although that is a criminal case, the remarks made by the court are equally applicable in civil appeals. DUBE J stated;

“Grounds of appeal should be clearly stated and should not be in general form.  As enuncited in R v Jack 1990 (2) ZLR 166, a notice without meaningful grounds of appeal is not a notice of appeal, ...

The first ground avers that the trial magistrate relied on unsafe evidence to convict. If the ground is meant to challenge the magistrate’s findings of fact, it is not specifically so stated.   In R v Emmerson 1958 (1) SA 442 at 442, BEADLE J said

“If the ground of appeal is that the magistrate erred in law this should be stated, and the particular mistake of law which the magistrate is alleged to have made should be set out.  If however, the ground of appeal is that the magistrate erred on the facts this should be stated, and the applicant should go further and state whether the magistrate erred in accepting the evidence led or in regarding  that evidence as sufficient to prove the offence.”

A ground that the court a quo misdirected itself in that it heavily relied on unsafe evidence which did not point to the guilt of the accused is too general.  It lacks precise detail of the points the appellant seeks to rely on.  It is vague as it does not state whether the magistrate erred in law or fact.”

Further to that, this ground still fails on the basis that the issue it puts into question is purely factual.  It was a factual finding by the arbitrator, that a disciplinary hearing was held.  Thus, the question whether or not a disciplinary hearing was held is a question of fact.  It has not been demonstrated that it is so grossly unreasonable that it amounts to a misdirection in law.  This ground of appeal clearly falls short of the requirement in section 98 (10) of the Labour Act [Chapter 28:01], that an appeal to the Labour Court from a decision of an arbitrator shall be on a question of law only.

Ground 2

This is not an attack on the decision of the arbitrator, from which the appeal emanates.  It is rather an attack on how the disciplinary proceedings at the workplace were conducted.  It is being alleged the chairman of the disciplinary committee was also the complainant. This ground has nothing to do with the merits of the disciplinary decision.  It is challenging a procedural aspect of the hearing, that the person who presided over the hearing should not have done so as he was allegedly also the complainant.

The position is well settled that procedural aspects of a disciplinary hearing can only be properly challenged in an application for review, and not in an appeal.  The difference between the two was well clarified by Henbstein and Van Winsen in The Civil Practice of the High Court of Appeal of South Africa, 5th Edition, Juta. The learned authors stated, at page 1271;

“The reason for bringing proceedings under review or appeal is usually the same viz, to have the judgment set aside.  Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure  is by way of appeal. Where however, the real grievance is against the method of the trial, it is proper to bring the case on review.”

Ground 3

Apart from it being vague, this ground of appeal is also of a procedural nature.  It seems to be averring that the wrong complainant was cited in the proceedings.  It is not clear on what basis the appellant determines who the complainant should be.  It seems to me the one prejudiced with the misconduct, the respondent company, knows best who should represent it as the complainant.  Be that as it may, the remarks made in respect of ground 2 are equally applicable in ground 3.  This ground fails on the basis that it is raising procedural issues in an appeal.

Ground 4

It is not clear why and to whom the appellant is posing this question.  He is supposed to state his grounds of appeal in a clear and precise manner.  There must be no doubt as to what it is he is challenging in the decision being appealed against. He seems to be saying he was wrongly charged, as those who worked for the respondent before him were not charged.  It seems he is averring that the act complained of does not constitute misconduct.  In another sense, he is also taking issue with the apparent selective approach to discipline.

The court is left to conjecture as to precisely what point is being raised in this ground of appeal, which is posed as a question.  It also has  elements of procedure, as to whether the charge preferred against him was proper.  For the same reasons stated in the preceding grounds, as to vagueness and mix up of review and appeal issues, ground 4 cannot also be upheld.

Ground 5

The question as to whether or not it was proper to disregard duly commissioned affidavits is procedural.  It raises the procedural issue of the admissibility of that form of evidence in disciplinary proceedings.  For reasons already stated, this is a review issue that has been improperly brought under an appeal.

Ground 6

This ground is challenging the propriety of the composition of the disciplinary committee.  Again, it is a procedural issue wrongly brought under an appeal.

Ground 7

The appellant is, essentially, averring that the disciplinary hearing was prematurely convened.  It was not preceded by adequate investigations.  He is putting in issue the whole procedure relating to the investigation and conduct of the disciplinary hearing.  Such an issue is not within the purview of an appeal hearing.

It seems to me on the whole, the appellant is seeking a review of the disciplinary proceedings conducted by the respondent.  He has done so in an appeal.  It should have been done by way of an application for review.  As already indicated, some aspects of his appeal raise purely factual issues, while others are so vague and imprecise it is difficult to formulate the exact nature of his averments.  The overall effect is to render his appeal defective.  It is not properly before the court, and must be struck off the roll.

It is accordingly ordered that;

The points in limine raised by the respondent be and are hereby upheld.

The appeal be and is hereby struck off the roll.

The appellant shall bear the respondent’s costs.

Mawere & Sibanda, respondent’s legal practitioners