N.C. Chingwaru v Zimphos Industries Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/684/2013
HARARE, 26 NOVEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/684/2013

HARARE, 26 NOVEMBER 2013	           			        CASE NO. LC/H/187/09

AND 06 DECEMBER 2013

In the matter between:-

N.C. CHINGWARU						             Appellant

And

ZIMPHOS INDUSTRIES LIMITED				    Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mr G. Pendei (ZCPAWU)

For Respondent		Mr E. T. Moyo  (Legal Practitioner)

MAXWELL J.;

Appellant was employed by the Respondent as an overseer.  On 23 February 2009 he was suspended from employment pending a disciplinary hearing.  The allegations against him were that on 10 February 2009 at 1400 hours he took part in an unlawful collective job action.  He was alleged to have left his work station without authority and sat at Mutondo square with other participating employees.  A disciplinary hearing was subsequently held and he was found guilty and was dismissed from employment.  He appealed to the General Manager and subsequently to the National Employment Council for Chemicals and Fertilizers Manufacturing Industry but was not successful.  He then approached this Court.  His grounds of appeal are as follows:-

The National Employment Council Committee erred in upholding the penalty of dismissal as passed by the Grievance and Disciplinary Committee on the basis that Appellant went to Mutondo when the roll call was conducted is of no merit because when the roll call was conducted, Appellant had excused himself to attend to the toilets.

The National Employment Council appeals committee erred in upholding the penalty of Dismissal as passed by the Grievance and Disciplinary Committee on the basis that the Appellant was not found at his work station when the Roll call was conducted yet there is no evidence that he was seen nor did he participate at the illegal gathering at Mutondo.

The National Employment Council Appeals Committee erred in upholding the penalty of Dismissal as passed by the Grievance and Disciplinary Committee without considering the long service at (sic) Appellant had served at Zimbabwe Phosphate Industries.

Appellant prayed that

The National Employment Council Appeals Committee’s decision be rescinded.

Appellant be reinstated with full benefits from date of dismissal.

Response pays costs of suit.

The notice of appeal was filed on 8 July 2009.  On 12 July 2009 the Respondent filed the notice of response which was duly served on the Appellant’s legal practitioners of record, Thondhlanga & Associates.  In the response Respondent simply stated that

When the roll call was done the Appellant was not at his workstation.  When someone was sent to look for Appellant at Mutondo Square, he was found amongst those workers who were participating in an illegal collective job action.

Dismissal is the appropriate penalty.

Thondlanga & Associates filed Heads of Argument on behalf of Appellant on 1 March 2010.  On 4 March 2010 Respondent filed Heads of Argument raising a point in limine that Appellant had not complied with Rule 19 (1) of SI 59/2006.  At the hearing of the matter Respondent pursued the point in limine.  Appellant who was then represented by Mr Pendei, from a trade union, submitted that Rule 19 (1) did not apply to him as he was not represented by a legal practitioner.  He submitted that the rule was applicable only when a party is legally represented at the time of hearing.  Appellant changed legal Practitioners twice and reasons for the failure to seek condonation by his erstwhile legal practitioners are not known to him.  He prayed that he be not penalized for the omissions of his legal practitioners.  He further prayed that the matter be heard on the merits as it is settled law that labour matters must not be determined on technicalities.

The Court observed that the appeal was filed on 8 July 2009.  A response was filed on 12 August 2009.  In terms of Rule 19 (1) of the Labour Court Rules SI 59/2006.  Appellant ought to have filed Heads of Argument within fourteen days of receiving the response.  That was not done.  Instead the Heads of Argument were filed by Thondhlanga and Associates on 1 March 2010 without seeking condonation.  By that time Appellant was barred in terms of the rules of this Court.  Thondlanga and Associates renounced agency on 16 March 2011 whilst Matsikidze and Muchceche assumed agency on the same day.  Matsikidze and Mucheche subsequently renounced   agency on 24 October 2013.

As mentioned above, Respondent raised the issue of the non-compliance with the rules in Heads of Argument filed on 4 March 2010.  Appellant had ample opportunity to seek condonation of the non-compliance.  That was not done.  The fact that on the date of the hearing he was no longer legally represented does not excuse the non-compliance.  Thondhlanga and Associates were notified of the non-compliance through the Heads of Argument of the Respondent which was served on them.  By the time Matsikidze and Mucheche assumed agency the Respondent’s Heads had notified Appellant of the non-compliance.  Both law firms had ample opportunity to rectify the non-compliance by seeking condonation.  I am therefore not persuaded that because by the date of the hearing Appellant was no longer represented by legal practitioners he should not be bound by rule 19.  On that basis I ruled that Appellant was barred in terms of Rule 19 (3) (b) and proceeded to hear Respondent on the merits of the matter.

Respondent submitted that two issues were raised an appeal.  The first is whether or not appellant participated in the collective job action.  Appellant acknowledges that there was an illegal gathering at Mutondo square.  He however alleges that when the roll call was done, he had excused himself to go to the toilet.  Respondent submitted that efforts of ascertaining who participated in the collective job action were through a well coordinated roll call at 1415 hours.  The workers were supposed to be at their work stations by then.  At the time the roll call was being done someone was observing the workers at Mutondo Square.  It was established that Appellant was not at his work station but at Mutondo Square.

Appellant in his response to the allegations did not deny being at Mutondo Square.  He claimed that he went there for some other reason, not the collective job action.  (page 20 of record).  In that written response he does not mention the issue of the toilet at all.  The first time he mentioned the toilet was at the hearing.  When he was asked why he was not seen during the roll call he responded thus

“…. maybe I had gone to the toilet.” (page 16 of record)

He confirmed that he has a positive relationship with his supervisors.  When asked why they did not see him on the day in question he reiterated.

“I think I had gone to the toilet” (page 17 of record)

Appellant was not definite that he had gone to the toilet.  The probability is that this was an afterthought as he would have mentioned it in his written response if indeed he had gone to the toilet at the time of the roll call.  I am satisfied that on a balance of probabilities Appellant was at the Mutondo Square at the time the roll call was done.  The Respondent therefore established on a balance of probabilities that Appellant participated in the Collective job action.  There is therefore no basis for upsetting the conviction of the Appellant.

Appellant also sought to have the penalty interfered with on the basis of his long service.  The Supreme Court has held that:

“In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal Court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.”

per Ziyambi JA  in Mashonaland Turf Club v Mutangadura SC 5/2012.

Respondent submitted that Appellant was convicted of a misconduct categorized as serious in the relevant Code of Conduct.  The penalty prescribed for that offence is dismissal even for a first instance.  The Respondent considers the offence itself to be a serious misconduct which goes to the root of the contract of employment.  Appellant was withholding the service for which he was contracted to render.  I am satisfied that there is no basis for interfering with the Respondent’s discretion to dismiss the Appellant.  I am fortified by the case of Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60/03 in which the Supreme Court stated that:

“Once an employer has taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be repudiation of contract which it accepted by dismissing her from employment, the question of penalty, less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.”

On the basis of the foregoing the appeal fails.

Wherefore it is ordered that

The appeal, being without merit, be and is hereby dismissed.

Appellant shall pay costs of suit.

Scanlen & Holderness – Respondent’s Legal Practitioners