Patson Musarurwa v Securico Security Services

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/248/13
HELD AT HARARE ON 10TH JUNE 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/248/13

HELD AT HARARE ON 10TH  JUNE 2013	    CASE NO LC/H/745/12

In the matter between:-

PATSON MUSARURWA					Appellant

And

SECURICO SECURITY SERVICES				Respondent

Before The Honourable P Muzofa, President

For Appellant		Mr T Mahaso (Trade Unionist)

For Respondent		Mr M Kupfuwa (Head Human Resources)

MUZOFA, P:

This is an appeal against the Negotiating Committee’s decision upholding the dismissal of the Appellant by the Respondent.

The background facts to this appeal are as follows:-

Appellant was employed by Respondent as a security guard.  The Appellant was found in possession of a cellphone while on duty.  He was charged  in terms of the National Employment Council for the Commercial Sectors Code of Conduct being the governing code at that time,                                                                                                                                                                                                                                                                                                                                 as read with the Respondent’s standing Instructions.  The Appellant admitted the charge he explained why he had the cellphone on that day.    He was dismissed on that day.  The Appellant filed an appeal to the Local Joint Committee, he did not challenge that he had a cellphone while on duty.  He was unsuccessful.  He noted an appeal to the Negotiating Committee and was again unsuccessful.

He then approached this Court appealing against the Negotiating Committee’s decision.

The grounds of appeal are set out as:-

The Negotiating Committee erred and seriously misdirected itself by holding that Securico’s anti-cellphone rules are safety and security rules stated in the employment code of conduct.

The Negotiating Committee erred at law in upholding that the Appellant breached safety rules contemplated in Group IV Part 5 of the National Employment for the Commercial Sectors of Zimbabwe Code of Conduct.

The Negotiating Committee grossly erred and misdirected itself in rubber stamping the dismissal of the Appellant on the basis of wrong categorisation of the anti cellphone rules as safety rules stated in the Employment Code of Conduct.

The Appellant was wrongly dismissed because the dismissal was neither in terms of the Labour Act or the Employment Code of Conduct.

The Negotiating Committee wrongly approved the dismissal in the absence of proof by the Respondent that the Appellant’s possession of his cellphone was a threat to the safety of the client (company.)

In his submissions before this court the Appellant’s representative raised an issue that Appellant had not commenced his duties.  He alleged that Appellant after attending their parades went to his duty station at Westgate.  At the duty station there was already a security guard who asked Appellant to wait for her while she went to some place.  On return she alleged he had stolen a fire extinguisher.  The case was reported to the police.  When the police were about to detain him Appellant then surrendered his cellphone to his supervisors.  That is the time that the supervisors realised that Appellant had a cellphone while on duty. This argument was not taken any further since it was not raised before any appeal committee and even the Respondent’s hearing authority. It was therefore abandoned.

I will deal with the grounds of appeal separately.

The Negotiating Committee erred and seriously misdirected itself by holding that Securico’s anti – cellphone rules are safety and security rules stated in the employment code of conduct.

The Appellant was charged for contravening Group IV Part 4 (vii) of the National Employment Council for the Commercial Sectors Employment Code (N.E.C.C.S.) (code) as read with Respondent’s standing Instructions.  The N.E.C.C.S. Group IV Part (vii) provides

“serious violations of company or client’s safety or security rules including fires.”

From the wording of that provision it is clear that the sector gave the company including the clients to set safety or security rules.  It was therefore expected that workers including security guards uphold these rules.  Respondent submitted that it indeed made such rules and communicated them through a memorandum in September 2010 to all employees who signed acknowledgement of receipt including the Appellant in this case.  The same Standing Instructions were posted at every duty station for ease of reference by security guards.  As far as the Respondent was concerned the Standing Instructions were and are still part of its safety and security rules.  In my opinion it was not a finding by the Negotiating Committee that the Standing Instructions were part of the safety and security rules, it was as stated by Respondent.  Appellant cannot claim that these were not part of the safety and security rules since these were made as operational guidelines.

To that extent there is no merit in Appellant’s contention therefore this ground of appeal cannot succeed.

The Negotiating Committee erred at law in upholding that the Appellant breached safety rules contemplated in Group IV Part 5 of the National Employment for the Commercial Sectors of Zimbabwe code of conduct.

Appellant was not charged for contravening Group IV Part 5 offences but rather was charged for contravening Group IV Para 4 (vii) of the said code. To that extent only otherwise this second ground of appeal is similar to the first ground of appeal that has been addressed.  Therefore the same reasoning is applicable the ground of appeal falls also.

The Appellant was wrongly dismissed because the dismissal was neither in terms of the Labour Act of the Employment Code of Conduct.

It was submitted on behalf of the Appellant that Respondent was supposed to register the Standing Instructions for them to be part of the code.  Alternatively Respondent should have applied to the Council for exemption not to register in terms of Section 33 (1) Of S.I. 45/93.  Respondent submitted that there was no obligation that its internal rules be registered to be made part of the Code.  The wording of Group IV Part  (vii) of the code given its literal meaning shows that the intention of the writers was to allow companies and clients to make their own safety and security rules.  It does not provide that these should be registered with the council. S.I. 45/93 is a Collective Bargaining Agreement for Commercial Sectors and section 33 (1) thereof reads as follows:-

“The council may, in its sole discretion and upon such terms and conditions as it may determine, grant exemption, in writing, from any of the provisions of this agreement to an employer or an employee.” (my emphasis)

It is clear that the exemption clause relates to the provisions of the said Statutory Instrument.  Appellant was charged under the code and that code expects companies to make safety and security rules.  I am not convinced that the provisions of S.I. 45 of 1993 are applicable in this case.

It is therefore this Court’s finding that there was no requirement for the Respondent’s Standing Instructions to be registered.  The code of conduct envisaged that such rules would be made and complied with.  The Appellant’s powers was in terms of the National Employment Council for the Commercial Sectors Employment Code.  The Appellant’s submission on this aspect has no merit and therefore dismissed.

The Negotiating Committee wrongly approved the dismissal in the absence of proof by the Respondent that the Appellant’s possession of his cellphone was a threat to the safety of the client/company.

The code does not make a requirement that it should be shown that the alleged cellphone was a threat.  The Standing Instructions only requires that operatives/security guards do not have in their possession while on duty a cellphone, and nothing more.  The assertion by Appellant is unfounded and therefore cannot succeed.

The Appellant’s representative also submitted that the Respondent’s anti-cellphone rules violated the Appellant’s constitutional Rights of expression and to possess gadgets to exercise the said right.  It is this Court’s opinion that this argument is misplaced infact Appellant had a duty to comply with the company’s rules.  The argument has not merit.

Clearly as appears from the grounds of appeal Appellant does not challenge that he committed the offence.  This admission on its own renders the appeal without merit.  This finds support in the case of DB Transport (Pvt) Ltd v Abbott 1988 (2) ZLR 92 quoting Davis AJA in Gordon v Tarrow 1947 (3) SA 525 (AD) where it was held that

“But this admission in the plea is of the greatest importance, for it is what Wigmore (paragraphs 2588 - 2590) calls a “Judicial admission” (of the confession judicials of voet 42.2.6) which is conclusive, rendering it unnecessary for the other party to adduce evidence to prove the admitted fact and incompetent for the party making it to adduce evidence to contradict it.”

To this extent therefore this Court finds no fault in the Negotiating Committee’s decision, the Appellant was properly dismissed.

Accordingly it is ordered that:-

The Appeal be and is hereby dismissed.

There is no order as to costs.

ZISEGU, Appellant’s Representatives