Obel Enterprises v Farirayi Henry

### Preamble
IN THE LABOUR COURT
JUDGMENT NO. LC/H/437/2013
HARARE, 4 SEPTEMBER
CASE NO. LC/H/451/12
JUDGMENT NO. LC/H/437/2013
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IN THE LABOUR COURT 			    JUDGMENT NO. LC/H/437/2013

HARARE, 4 SEPTEMBER AND		                    CASE  NO. LC/H/451/12

11 OCTOBER 2013

In the matter between

OBEL ENTERPRISES			        -			Appellant

And

FARIRAYI HENRY 				-		Respondent

Before The Honourables	 G. Mhuri: Judge										  F.C. Maxwell: Judge

For Appellant 	-	Mr. T. Marume  – (Legal Practitioner)

For Respondent	-	Mr G. Pendei – (Trade Unionist)

MAXWELL F.C.:

Appellant’s grounds of appeal as captured in the notice of appeal are that:-

the National Employment Council Appeals Committee (NAC) grossly erred and misdirected herself on the facts and the law, such gross misdirection amounting to an error in terms of the law by setting aside the dismissal of the Respondent on alleged grounds of procedural defects when it was clear that the Respondent had a case to answer.

the National Appeals Committee grossly erred and misdirected herself on the facts and the law, such gross misdirection amounting to an error in terms of the law by holding that the penalty that was communicated to Respondent was in terms of the National Employment Council Code when it was clear that the penalty was in terms of SI 15 of 2006 which provided for dismissal or any other lesser penalties.

the National Appeals Committee ignored the explanation that was proffered by the Appellant that the Code of Conduct had been rendered inoperative by the fact that the Appellant no longer had the employees who could preside over the disciplinary hearing.

the National Appeals Committee grossly erred in terms of the law by holding that the formal letter did not specify the legislation the employee was found guilty of when the record of proceedings was clear that everything was being done in terms of SI 15 of 2006.

the National Appeals Committee grossly erred and misdirected itself in terms of the law by holding that the Appellant was supposed to withdraw proceedings and start afresh when the Appellant clearly advised the employee that the hearing was to start afresh in terms of SI 15 of 2006 because the code had been rendered in operative.

the National Appeals Committee grossly erred and misdirected itself in terms of the law by ignoring the time honoured principle that Labour matters should not be dealt with on the basis of technicalities but on the merits.

the National Appeals Committee grossly erred and misdirected itself in terms of the law by ignoring the fact that there was no prejudice that was suffered by the Respondent and as such the appeal had to be dismissed.

the National Appeals Committee grossly erred and misdirected itself in terms of the law by ignoring the fact that reinstatement was not the best remedy.  It should have simply ordered a re-hearing of the matter in terms of its guidelines.

the decision of the National Appeals Committee was grossly unreasonable such that no reasonable person applying his or her mind would have arrived at such a decision.

In his notice of response to the appeal, Respondent submitted that the National Appeals Committee did not err as:-

procedural irregularities if fatal nullify proceedings.

it is clear that proceedings were held in terms of SI 15 of 2006 and the penalty was in terms of SI 31 of 2011 which is prima facie a procedural defect.

there is nothing in casu which can be cited to have the effect of rendering the code of conduct in operative.

the fact that the formal letter did not specify the legislation is self evident from the record.  For a dismissal to be procedurally fair, the applicable legislation must not be implied.

it is trite law that if an Appeals Authority is convinced that procedure was flouted, it can rehear the matter or quash the proceedings.  In casu, the appeals authority quashed the proceedings.

the principle that Labour matters should not be dealt with on technicalities was developed not to give employers a blank check to flout procedure.  It is settled law that dismissals must be both procedurally and substantially fair.

technicalities in any case are meant to be always observed unless the justice of the case otherwise requires.

it is trite law that in Labour matters, reinstatement is the primary remedy to unfair termination of employment.

the determination was reasonable.

The issue before this court is whether or not the National Appeals Committee erred in setting aside the dismissal of the Respondent and ordering his reinstatement without loss of salary and benefits with effect from the date of suspension.

The National Appeals Committee wrote to the Appellant’s lawyers on 6 June 2012 that

“……….. the National Employment Council Appeals Committee observed the following:

That the disciplinary proceedings were fraught with procedural defects …….. The procedural defects are as outlined below:

The notification of suspension as well as to attend hearing dated 15 November 2011 contained charges in terms of the National Employment Council Code of Conduct, Statutory Instrument 31 of 2011 while the disciplinary proceedings were conducted in terms of Statutory Instrument 15 of 2006.

The penalty communicated on 3 February 2012 was in terms of the National Employment Council Code which had been earlier on abandoned in preference of SI 15 of 2006.

There is no formal letter of dismissal specifying which section of which legislation the employee was found guilty of and what rights are open to Appellant in the event that he wants to appeal.

Having realized that it had structural limitations to implement the industrial Code of Conduct, employer should have withdrawn proceedings that it had initiated in terms of the industrial code and started afresh in terms of SI 15 OF 2006 (in consultation with the employment Council).”

In conclusion the National Appeals Committee’s determination was to set aside the dismissal of Respondent and it ordered that he be reinstated without loss of salary and benefits with effect from date of suspension.  Payment of wages and benefits for the period he was on unlawful dismissal was to be made within 28 days of the determination.

Did the notification of suspension as well as to attend hearing dated 15 November 2011 contain charges in terms of the National Employment Council Code of Conduct Statutory Instrument 31 of 2011 while the disciplinary proceedings were conducted in terms of Statutory Instrument 15 of 2006?

The issue of which Statutory Instrument was to be used in the proceedings was deliberated on as a preliminary issue and the Committee clarified that the proceedings would be in terms of Statutory Instrument 15 of 2006.  However, despite that clarification the Committee proceeded to deal with the second and fifth charges on the basis of Statutory Instrument 31 of 2011.  The Court’s view is fortified by the fact that Section 4(a) of Statutory instrument 15 of 2006 states :

“4  An employee commits a serious  misconduct if he or she commits any of the following offences –

any act or conduct or omission inconsistent with the fulfillment of the express or implied condictions of his or her contract; or ……….”

Section 8 of the Eighth Schedule to Statutory Instrument 31 of 2011 gives the definition of Offences.  Paragraphs 59 and 60 of Section 8 state:

“59. Humiliating/Degrading behavior.						 Abusive, foul, insulting, demeaning or obscene actions or utterances against a fellow employee, customer or supplier and is aggravated when done against one’s superior.

60. Misrepresentation, falsification or dishonesty that results or has the potential to result in serious consequences to the company and individuals.

This refers to presenting misleading information or action with the intention of hiding or distorting the truth”.

A perusal of the minutes of the misconduct hearing held at Obel Boardroom on Tuesday 22 November 2011 is revealing.  When dealing with the second charge the issue was that:

“Respondent made misrepresentations, falsification or dishonesty which resulted or had the potential to result in serious consequences to the company and individuals.”

(page 21 1st paragraph of Determination)

When dealing with the fifth charge, the issue dwelt on was humiliation.  In the Determination the Committee was of the view that:

“However the crux of the matter is whether the Respondent’s response resulted in humiliation to the manager or it was degrading to same”.

(page 22 second paragraph)

The penalty also confirms the emphasis on humiliation.

In the light of the foregoing, the second and fifth charges were premised along Statutory Instrument 31 of 2011.

The Committee therefore erred in reverting to Statutory Instrument 31 of 2011 when it had made a decision to proceed in terms of Statutory Instrument 15 of 2006.

Was the penalty communicated on 3 February 2012 in terms of the National Employment Council code which had been earlier abandoned in preference of Statutory Instrument 15 of 2006?

In the court’s view the penalty was in terms of a combination of Statutory Instrument 15 of 2006 and 31 of 2011.  The penalty incorporated the determination issued on 10 January 2012.  Whilst in the D                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               etermination Section 4(a) of the National Code is referred to for the second and the fifth charges, the wording outlined for the two charges was taken from Statutory Instrument 31 of 2011.  As already pointed out it was wrong for the Committee to revert back to Statutory Instrument 31 of 2011 when a decision had been made to proceed in terms of Statutory Instrument 15 of 2006.

Was it proper for the National Appeals Committee to set aside the dismissal of the Respondent and to order his reinstatement without loss of salary and benefits with effect from the date of suspension?  It is the court’s view that it was not proper.  The options which the National Appeals Committee had are given in the case of Dalny Mine v Musa Banda SC 39/99 in which it was held that procedural irregularities can be put right in one of 2  ways.

by remitting the matter for a hearing de novo and in a procedurally correct manner, or

by the Tribunal hearing the evidence de novo.

The National Appeals Committee should not have ordered the reinstatement of the Respondent without loss of salary and benefits with effect from the date of suspension.  Instead it should have remitted the matter to the disciplinary committee for a hearing de novo in a procedurally correct manner.

In view of the above the appeal is allowed.  The order of the National Appeals Committee is altered to read:

“The matter is remitted to the Disciplinary Committee of the Respondent to be determined in terms of the Respondent’s Code of Conduct.”

I agree …………………………………………………………..

G. Mhuri

SENIOR JUDGE