Nutrition For Africa P/L v Chigova Enock

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/340/2014
HARARE, 2 & 20 JUNE 2014
CASE NO. LC/H/340/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/340/2014

HARARE, 2 & 20 JUNE 2014		           	    CASE NO. LC/ H/587/13

In the matter between:-

NUTRITION FOR AFRICA P/L					Appellant

And

CHIGOVA ENOCK							Respondent

Before The Honorable F.C. Maxwell, Judge

For Appellant		Bakasa J (Legal Practitioner)

For Respondent		G. Maoneka  (DEOFWU)

MAXWELL J:

This is an appeal against the decision of an arbitrator in favour of the Respondent.  The grounds of appeal are:

The Honourable arbitrator misdirected herself on a point of law in presiding over a claim brought by Respondent against the findings of the Disciplinary Committee instead of the Appeals Authority.

The Honourable Arbitrator so erred which error is gross so much as to vitiate the award in failing to grasp that at Law Respondent’s claim as captured in his statement of claim, should have been against the findings of the Appeals Authority instead of the Disciplinary Committee.

The Honourable Arbitrator erred on a point of law in holding that Respondent’s previous warnings by Appellant had no bearing at all to the disciplinary case and the ultimate decision.

The Arbitrator so erred in failing to grasp that the previous warnings were corroborating evidence of Defendants’ inefficiency and incompetency.

On an even stronger basis, the Honourable Arbitrator misdirected herself on a matter of fact, which misdirection amounts to an error on a point of law in holding that Respondent’s misconduct did not amount to gross incompetency and inefficiency.

The Arbitrator grossly erred in that respect in failing to consider the effects of Respondent’s misconduct on Appellant and the meaning of his misconduct vis a vis Appellant’s operational environment.

The Honourable Arbitrator further erred on a point of law in misdirecting herself on the factors to be considered when determining grossness of inefficiency and incompetence

The Honourable Arbitrator so erred in determining that Respondent should have been afforded reasonable opportunity to rectify when the nature of his misconduct was not one that required rectification but bordered squarely on his attitude towards his employment.

A fortiori, the Arbitrator’s factual findings are far divorced from the actual issues placed before her and contained in the record of proceedings making same invalid, erroneous and unlawful.

The factual findings thereof ignore the fact that Respondent was charged for switching off extruders number 1 and 2 with the net result of him having no work to do or avoiding to work.

In response Respondent indicated that the Arbitrator made correct findings within the confines of law in determining the matter.

The Respondent was employed by the Appellant as a shift leader and maintenance for a period of more than five years.  His duties were to take care of repairs and maintenance of factory machines which included extruders, expellers, grinding mills and other machines.  It is alleged that on 26 September 2012 he switched off extruder number 1 and increased the speed of extruder number 2.  The increased speed caused extruder 2 to be congested resulting in production stoppage.  The stoppage caused a production loss of $1 487.  Respondent was charged in terms of section 4 of SI 15 of 2006.  He was found guilty and was dismissed from employment.  He appealed internally but was not successful.  He then appealed to the NEC where a certificate of no settlement was issued resulting in the matter being referred for arbitration.

The first question is whether or not the claim before the Arbitrator was against the findings of the Disciplinary Committee or the Appeals Authority.

On page 6 of the award the Arbitrator states:

“In determining whether the appeals authority did justice in their findings, my analysis shall be based on the undated determination and minutes of the appeals hearing held on Tuesday 13th November 2012, in line with the evidence which the parties adduced before him.”  (underlining for emphasis).

From the above quotation the Arbitrator’s focus was on the proceedings before the appeals authority.  Appellant alleges that “Respondent’s claim as captured in his statement of claim should have been against the findings of the Appeals Authority instead of the Disciplinary Committee.” Regrettably the Statement of claim is not on record.  What is before this Court are the heads of argument and the award.  I am satisfied that the Arbitrator focused on the determination by the Appeals Authority and therefore find no merit in the first ground of appeal.

Then second issue for consideration is whether or not the arbitrator was correct in finding that, previous warnings received by Respondent had no bearing at all to the disciplinary case and the ultimate decision.  The arbitrator dismissed the letters of warning that were submitted on the basis that they did not at all relate to the issue at hand.  All the warning letters concluded with the statement “management felt you failed to observe the code of conduct of the company.” In my view the arbitrator’s finding cannot be supported as previous conduct in some instances has a bearing on the penalty to be meted out.  The arbitrator states that “an isolated case of failure to meet objective standards shall not justify discharge”(page 8 of award).  If regard is had to the written warnings, Respondent’s conduct was not an isolated case of failure to meet the objective standards.  He even received a final warning letter dated 11 April 2012.  For the above reasons there is merit in the second ground of appeal and I uphold it.

The third ground of appeal challenges the arbitrator’s finding that Respondent’s misconduct did not amount to gross incompetency and inefficiency.  The arbitrator found that the gravity of the misconduct was not gross and the incompetence was of a less serious nature to warrant dismissal.  The sanction for gross incompetency or inefficiency is dismissal even though the employer is given the discretion to apply a lesser penalty like written warning.  The definition of gross negligence was given in the case referred to in the Appellant’s heads of argument, Standard Chartered Bank of Zimbabwe Ltd v Chipiningu SC 104/2002 (wrongly stated in the heads of argument as Standard Bank v Chipungu S – 104-07).  In that case it was stated that the meaning depended on the context in which it is used and includes recklessness or an entire failure to give consideration to consequences of one’s actions.  The record of proceedings indicates that the person who took over from the Respondent crushed 106 bags of soya beans in 6 hours whilst Respondent had crushed 42 bags in 4 hours.  The average bags per hour are 18 to 20 bags (page 48 of record).  On the same page it is also stated that Respondent took one and a half hours to do a process that should take at least five minutes.  He also made a decision that resulted in the congestion of one extruder whose out put had been increased when he had caused another to be switched off.  I am satisfied that the arbitrator was wrong interfering with the finding of the Appeals Authority.  There is therefore merit in the third ground of appeal and I uphold it.

The fourth ground of appeal challenges the arbitrator’s finding that Respondent should have been given an opportunity to rectify his misconduct.  On page 21 of the record (page 7 of the award) the arbitrator states:

“In casu, the incompetence is of less serious  nature, and the Respondent did not avail evidence that it provided the Claimant with sufficient warning and reasonable opportunity to meet the standards set by the employer before considering dismissal ……………………  In my view to justify dismissal on the basis of incompetence the Respondent must show firstly the level of job performance that was required and that the same level was communicated to the employee.”

The arbitrator ignored the finding of the Appeals Authority that:

“There is no doubt that Enock Chigova knew his job, was very experienced with over five years experience.  He knew very well that increase flow on extruder two having closed extruder one was going to cause congestion, thereby resulting in production stoppage.  It was for that reason that he could not easily explain himself to his director on the day of the incident.  Such action was intentional, premeditated and willful.  It was an act of sabotage meant to prejudice the company.  Such a mindset cannot be corrected, neither can it be educated.” (page 49 of record).

Without a finding that the conclusion of the Appeals Authority was baseless, the arbitrator’s position cannot be supported.  In any event the Arbitrator was interfering with the employer’s discretion in circumstances where the employer viewed the misconduct seriously.  Such interference is permissible only where the discretion has been exercised injudiciously.  Such has not been demonstrated to be the case here.  There is therefore merit in the fourth ground of appeal and I uphold it.

The fifth ground of appeal attacks the Arbitrator’s factual findings.  The Appellant did not elaborate what findings they were alleging to be “far divorced from actual issues placed before her.” In any event an appeal from a decision of the arbitrator should be on a question of law in terms of section 98 (10) of the Labour Act [Chapter 28:01].  Since this ground of appeal is on factual issues it is improperly before this court and I dismiss it.

In the final analysis there is no merit in the first and fifth grounds of appeal.  The second, third and fourth grounds of appeal be and are hereby upheld.

Accordingly it is ordered as follows:

The arbitrator’s award be and is hereby set aside and is substituted with the following order;

“Claimant’s claim be and is hereby dismissed for lack of merit.”

Respondent’s dismissal be and is hereby confirmed.

Respondent is to pay costs of suit.