Norman Mangitoni v Cafca Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/112/2014
HARARE, 24 FEBRUARY 2014 &
28 FEBRUARY 2014
CASE NO LC/H/861/2013
JUDGMENT NO LC/H/112/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/112/2014

HARARE, 24 FEBRUARY 2014 &		CASE NO LC/H/861/2013

28 FEBRUARY 2014

In the matter between:

NORMAN MANGITONI						APPELLANT

Versus

CAFCA LIMITED							RESPONDENT

Before the Honourable L Murasi	:	Judge

For Appellant		S Masukume (Trade Unionist)

For Respondent		Ms S M V Nyathi (Legal Practitioner)

MURASI J:

At the conclusion of the hearing I dismissed the appeal and stated that the reasons would follow. These are they:

The appellant was employed by the respondent as a machine operator. He was dismissed for absence from his work station without a valid explanation. He appealed to the Appeals Committee in terms of the respondent’s Code of Conduct which dismissed the appeal. He approached this court for relief.

The appellant couched his grounds of appeal as follows:

“CAFCA Works Council failed to comply with the Code’s provisions as legislated as they omitted some stages in the Code, see copies attached.”

The appellant was represented by Mr Masukume from the Union Offices who applied for a postponement because one person who was to be with them was not available due to illness. The court inquired from Mr Masukume whether he had personally perused the record and he replied in the affirmative. He also confirmed that he was familiar with the case. The respondent objected to the postponement and stated that the parties knew that they were coming to the hearing and should be prepared to continue with the hearing. The court dismissed the application on the basis that Mr Masukume was designated as one of the people dealing with the appeal and was conversant with the issues pertaining to the appeal and there would be no prejudice to the appellant.

On the merits, the appellant submitted that the Appeals Committee erred in upholding the appellant’s dismissal when he was still entitled to a Last Written Warning. In so doing, the Appeals Committee had disregarded one of the crucial stages provided for in the Code of Conduct. The court enquired whether the Last Written Warning was what the appellant meant as “omitted some stages” in the grounds of appeal. The appellant confirmed this position.

The respondent, on the other hand, was of the view that there were no grounds of appeal accompanying the notice. The court pointed out to the respondent’s Counsel that the grounds of appeal were reflected on the Form LC 3. The respondent then submitted that these were inadequate to permit a proper response being made. The respondent further submitted that the averments by the appellant that he was not given a Last Written Warning were incorrect. The respondent tendered exhibits “A” and “B” by consent which were written warnings to the appellant. Exhibit “A” was a verbal warning dated 16 May 2013 for absence from work station. Exhibit “B” is a “counselling” warning for poor work performance dated 13 June 2013. The respondent further stated that it was entitled to dismiss the employee in question.

The court notes that Mr Masukume also represented the appellant at the Works Council appeal. The Court further notes that during the course of that appeal the appellant withdrew most of the points that he had raised. The team that represented the appellant (including Mr Masukume) noted that:

“… he (appellant) did not write his grounds of appeal correctly we cannot dwell much on that.”

and further during that hearing:

“I also dismiss that point, when you commit an offence you don’t accuse someone of prejudgment. On his behalf I withdraw the statement and also to save time and also withdraw the one he said he signed the termination letter under duress.”

The record shows that the appellant’s appeal at that level was all but withdrawn by the appellant himself. There was little remaining when he withdrew most of the challenges he had made against the Disciplinary Committee. The summarised points of appeal by the Appeals Committee do not include the present ground of appeal lodged with this Court. This means that the appellant did not raise this with the Appeals Committee. Whilst it is trite that a point of law can be raised at any time, this is hardly one as the appellant does not aver that there was a gross misdirection on the part of the Appeals Committee. A look at the record of proceedings shows the following salient features:

In the hearing of 6 December 2012, the Committee noted that the appellant was “on a Last Written Warning and had pleaded guilty.”

The Committee of 6 November 2012 stated that should the appellant “be found guilty of any offence in the Disciplinary Committee hearing within 365 days from 7 November 2012 the penalty will be summary dismissal.”

The hearing committee of 8 October 2013 found that the appellant ‘had a valid Last Written Warning and Verbal Warnings as at 2 August 2013”.

The above observations clearly show that there is no basis in the appellant’s ground of appeal. The appellant does not challenge the correctness of the record in this respect. In fact, when the appellant’s representative’s attention was brought to this observation, he was unable to explain this away. The record clearly shows that the appellant was sitting on a Last Written Warning. Can it be said that the Appeals Committee erred in arriving at the decision that it did? The question must be answered in the negative. Where an employee so conducts himself in such a manner which gives the employer no other notion than that he clearly is repudiating his contract of employment, the employer should be allowed to sever ties with that employee. As stated by SANDURA JA in James Kandome v Shades of Black Cosmetics (Pvt) Ltd SC 115-2004:

“It must be borne in mind that by entering into a contract of employment the employee subjects himself to the employer’s control and should behave accordingly. Any behaviour on the part of the employee which is wholly inconsistent with that relationship, would render the continuation of that relationship untenable and would undoubtedly constitute a repudiation of the contract of employment.”

In the result, the court finds the appeal to be meritless and it is accordingly dismissed.

There is no order as to costs.

Coghlan, Welsh & Guest, respondent’s legal practitioners