Moses Kanypepi v Securico Security

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/412/13
HARARE 11TH JUNE & 30TH AUGUST, 2013
CASE NO LC/H/746/12
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/412/13

HARARE 11TH JUNE & 30TH AUGUST, 2013		  CASE NO LC/H/746/12

In the matter between:-

MOSES KANYEPI				Appellant

And

SECURICO SECURITY 			Respondent

Before The Honourable G Mhuri, Senior President

For Appellant :	Mr T. Mahaso (Legal Officer- ZISEGU)

For Respondent:	Mr M. Kapfuwa (Human Resources Head)

MHURI, G:

Appellant was in Respondent’s employ as a Security Guard. The brief allegations that led to his dismissal were that on the 1st June 2011 he reported for night duty at CBZ Bank Arundel Branch (Respondent’s client) while in possession of a cellphone. Possession of a cellphone whilst on duty was strictly prohibited in terms of Respondent’s standing instructions.

Appellant was charged for serious violations of company or client’s safety or security rules. This offence falls under paragraph 4 of Group IV Offences the penalty of which is a dismissal for a first breach.

Paragraph 4 of Respondent’s Standing Instructions is very clear and unambiguous. It reads:-

“Operatives shall not bring cellphones to work or use a cellphone during the course of their duties. Stern disciplinary measures shall be taken against those who fail to observe this instruction.”

Appellant was aware of this prohibition. In his written statement dated 2nd June 2011 Appellant stated;

“............I was found in possession of a cellphone at work. ............I explained that I knew that I was prohibited from carrying cellphone at work..............”

Right through the initial proceedings, Appellant admitted having violated the standing instruction, he apologised and asked for forgiveness.

After having been found guilty on his own plea of guilty, and dismissed, Appellant appealed to the Local Joint Committee which dismissed his appeal. He then turned to the Negotiating Committee which also dismissed his appeal.

Appellant in his argument raised a constitutional issue, arguing that the standing instruction prohibiting possession of cellphones at work violated his constitutional right of freedom of communication. (Article 20(1) of the Constitution). As such, he argued, the Court should declare the Standing Instruction unconstitutional.

I shall not deal with this argument as, according to both parties, this issue is already before the Supreme Court pending hearing and determination. In January 2012 Appellant’s Union filed a constitutional application with the Supreme Court raising this same issue. This application should be pursued to finality so that there is no multiplicity of proceedings.

The submission by Appellant that the standing instructions are not part of the Code of Conduct and therefore Appellant was not dismissed in terms of the Code is not persuasive at all. It cannot assist him. The Code provides for what constitutes an act of misconduct. It is within the prerogative of the Respondent to come up with the standing instructions that will fall under the provision of the Code.

In casu paragraph 4 of the Group IV Offences generally provides for serious violations of company or clients safety or security rules. It therefore follows that the company and the client have to come up with the standing instruction stating what the safety or security rules are;

bringing or possession of cellphones whilst on duty is one such rule

These rules need not be part of the Code or registered with the Registrar of Labour. It is sufficient that they have been formulated, publicised within the company and that they have been brought to the attention of the employees. In casu Appellant knew about the standing instructions.

The record is quite clear that Appellant was charged in terms of the Code which binds both parties vis the National Employment Council for the Commercial Sectors Code.

The suspension was done in terms of the Code

The notice of hearing was done in terms of the Code

The initial hearing was done in terms of the Code

The dismissal by the employer was done as provided for in the Code

The Appellant appealed to the Local Joint Committee and thereafter to the Negotiating Committee as provided for in the Code.

To that end, I find that Section 12B(2)(a) of the Labour Act [CAP 28:01] does not apply as had been alleged by Appellant.

Overally this appeal is without merit at all. I therefore confirm the Negotiating Committee’s determination and order as follows:-

That the appeal being devoid of any merit it be and is hereby dismissed.