Nepias Chuma v Unilever Zimbabwe

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/329/13
HELD AT HARARE ON 7TH MARCH, 2013
CASE NO. LC/H/605/11
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO.LC/H/329/13

HELD AT HARARE ON 7TH MARCH, 2013	    CASE NO. LC/H/605/11

In the matter between:-

NEPIAS CHUMA				-		Appellant

And

UNILEVER ZIMBABWE			-		Respondent

Before the Honourable G. Mhuri, Senior President

Appellant			In Person

For Respondent:	Ms. G. Ncube (Legal Practitioner)

And 				Mr T.A Chiurayi (Legal Practitioner)

MHURI G.:

On the 19th Of August, 2011, Appellant appeared before a Disciplinary Committee facing a charge of assault.  He was found guilty and his contract of employment was terminated.

The minutes of the proceedings detail what actually transpired during the hearing.

Firstly, the Workers’ Committee Representative indicated that Appellant had served his sentence as he had been suspended without pay, as such this meant that the case had been concluded.

This protest was overruled and the hearing proceeded.

Secondly, The complainant’s (Chipo) request that she give her testimony in the presence of Appellant’s representative only as she could not face Appellant was granted.

After her testimony Chipo was cross-examined by Appellant’s representative.

Nokuthula, a witness also gave evidence and was excused.

Thirdly, After Nokuthula, Appellant was called in to give his side of the story.

It is at this juncture that the workers’ representative again indicated that there was no need to proceed with the hearing as Appellant had already served his sentence.

He indicated that he did not want to proceed with the hearing.

Appellant also indicated that he was not interested in the hearing as he had been punished already.

Appellant, his representative and the Workers’ Committee representative then stood up and left refusing to proceed with the hearing.

As a result, relying on statements and evidence given, a verdict was given on the basis that Appellant had waived his right to be heard and defend himself.

It is clear from the above narration of events that Appellant was the author of his misfortunes.  By opting to walk out of the hearing he did himself a great disservice as some of the issues he is raising in this appeal ought to have been raised and determined in the initial hearing.

It is permitted in terms of the law for an employer to withdraw a charge and or suspension and re-charge and or re-suspend an employee.  The prejudice suffered is addressed by a payment of salaries and benefits where such suspension was without pay and benefits.

See:

STANDARD CHARTERED BANK VS MATSIKA 1996 (1) ZLR 123 (S)

And

KAREMBERA VS MVURWI RURAL COUNCIL 1999 (1) ZLR 327 (S)

In casu, Appellant’s first charge letter was withdrawn, he was paid for the duration he was paid for the duration he was on suspension.  He was again served with another charge letter though he refused to sign it.

I find that there was nothing untoward about the withdrawal of the charge letter and the re-issuance of another charge letter.  This was not tantamount to being sentenced as believed by Appellant and his representative and Workers’ Committee representative.

Upon application, Chipo was granted leave to give her evidence in the absence of Appellant.  She was afraid of him.  The record does not reflect that there was any objection from Appellant.  Appellant’s representative on behalf of Appellant went ahead and cross-examined Chipo.  This was proper in my view.  Smith J (as he then was) had this to say in the case of

CHATAIRA VS ZESA HCH 9/2000

“The employer is required to act judiciously before imposing a penalty on an employee.  However the requirement of a fair hearing does not mean that employers must handle disciplinary proceedings according to the rigorous standards of a court of law.”

(emphasis added)

Faced with the uncontroverted evidence of Chipo and Nokuthula after Appellant and his representatives had walked out, I find that the Disciplinary Committee had no choice but to return a guilty verdict.  From the minutes of the initial hearing it is apparent that it was not the first time that the workers’ representatives threw spanners into works.  The withdrawal of the first charge letter was necessitated by the fact that the Workers’ Committee had refused to hear the case.  On the day the hearing took place, it is again the workers’ representative who raised the issue that Appellant had served his sentence through the suspension and was therefore not comfortable.

It was in the middle of the hearing that again the workers’ representative raised the same issue and walked out.

Under the circumstances it was proper for the chairman to return a verdict and impose a penalty.

Overally, I find that this appeal is devoid of any merit.  Appellant is trying to clutch at straws in a bid to save himself from a situation he willingly put himself into.

To that end, the appeal is dismissed in its entirety with costs.

Coghlan, Welsh and Guest – Respondent’s Legal Practitioner