Obert Charlie v National Tyre Services Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/188/14
HELD AT HARARE 19TH MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/188/14

HELD AT HARARE 19TH MARCH 2014			CASE NO LC/H/19/13

& 28TH MARCH 2014

OBERT CHARLIE						Appellant

NATIONAL TYRE SERVICES LTD				Respondent

Before The Honourable G Musariri, Judge

For Appellant		Mr K Guteni, Unionist

For Respondent		Mr I Chagonda, Attorney

MUSARIRI, G:

Appellant’s grounds of appeal were four-fold and read as follows,

“1.	The Code of Conduct used by the company to dismiss the Appellant is not registered with the NEC and therefore is inconsistent with the National Code or Labour Relations Act [Chapter 28:01].

2.	The Disciplinary Hearing Committee misdirected itself on the facts and law.

3.	The same committee’s hearing was motivated by bias.

4.	The Disciplinary Hearing Committee conducted its proceedings in an irregular manner.”

The complaints about the Code, bias or “irregular” proceedings deal with procedural irregularities.  They do not deal with the decision made but the decision-making process.  Thus they must be raised by way of review of the proceedings.  Section 89 (1) d1 of the Labour Act [Chapter 28:01] gave this Court

“the same powers of review as would be exercisable by the High Court in respect of

labour matters;”

Rule 16 of this Court’s Rules takes the matter further by prescribing the procedure to be followed in filing for review.  Appellant ignored these provisions.  He sought to bring a review under the guise of an appeal.  He was misguided in proceeding via an appeal.

Appellant’s 2nd ground alleges a misdirection on the facts and law.  The ground does not specify the misdirection.  It is arguably void for vagueness.  However I will give him the benefit of doubt and deal with the merits.  Amongst other offences he was charged with

“7.3.4(n) Refusal to carry out lawful instruction/insubordination.”

It was common cause that he received a letter from Respondent on the

6th November 2012.  The letter instructed him to produce a written report “by 0800 hours on 7 November 2012 without fail.”  Appellant did not comply.  By the 9th November 2012 he had still not complied or given an explanation for failure to comply.  The minutes of the disciplinary hearing show that he did not deal the charge by way of proferring a defence.  In this Court, his representative stated that he failed to respond because he felt he was being “strangled” by Respondent.  In other words he felt he was being harassed.  But he could have complied and then raise a grievance.  His grievance was not a valid excuse for ignoring the employer’s instruction.  He was therefore guilty of  the offence.  That was a serious offence.  It was aggravated by the fact that Appellant was sitting on a final written warning.  I consider that his dismissal was justified in the circumstances.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

J U D G E