Peter Chinhoyi & Anor v Brown Engineering

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/73/2014
HARARE, 4 DECEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/73/2014

HARARE, 4 DECEMBER 2013		          	        CASE NO. LC/CON/H/37/12

AND 14 FEBRUARY 2014

In the matter between:-

PETER CHINHOYI & ANOR				Applicants

And

BROWN ENGINEERING					Respondent

Before The Honourable Ndewere, Judge

For Applicants		Mr. M. Chisveto (Workers’ Union)

For Respondent		Mr. G. Makings (Legal Practitioner)

NDEWERE J:

The Applicants were charged with Theft, Dishonesty and Fraud in terms of the Company’s Code of Conduct, for missing stock of 4 000 x 92 bale ties.  Before the Disciplinary hearing was conducted, the Applicants were arrested by the police for the same offence and a criminal charge was raised against them.  They were granted bail and released on bail on 6 August 2010.  While they were on bail, they were called to a Disciplinary hearing on 14 December, 2010.

The Applicants appeared at the hearing on 14 December 2010 with their Legal Practitioners and challenged the correctness of the charges.  The charges were duly amended to their satisfaction.

The applicants were then called to a second hearing, based on the amended charges, on 14 January, 2011.  They then disputed the composition of the Disciplinary committee, resulting in a deadlock.  The Applicants also argued that since one of their bail conditions was that they should not set foot at the work place, they could not attend the Disciplinary Hearing at the work place.  Thereafter, the respondent tried to have the bail conditions altered, without success.  The Respondent then organized a neutral venue for the Disciplinary Hearing and then sent notices of the hearing to the Applicants’ last known addresses for 6 April, 2011.  The Applicants did not turn up for the hearing on 6 April, 2011.  The hearing proceeded in their absence and evidence was led which showed their participation in activities which led to the disappearance of the bale ties.  The applicants were convicted and the dismissal penalty was imposed on them, effective from 15 April, 2011.

On 10 February, 2012, the Applicants applied for condonation of late noting of appeal to the Works Council for Brown Engineering.  The reasons for the delay in noting an appeal were given as follows:

Applicants were never informed of the said hearing.  The notifications which led to the dismissal were never served to Applicants, save to say they were only produced before the Designated Agent at National Employment Council during Conciliation process.

Applicants never agreed to have the hearing conducted at what the employer referred to as neutral venue.

(b) Applicants were not awarded an opportunity to cross examine witnesses.

(c) The employer failed to determine the matter within (14) days period as is required by the statute.

(d) The employer has no justifiable grounds or good cause why he could not determine the matter within the specified period.

The Works Council set on 13 February, 2012 and 21 February, 2012 and considered the application for condonation of late noting of appeal and they turned down the application for the following summarized reasons:

Employees were given several chances to attend hearing meetings and did not attend and were served with notice for the Disciplinary hearing resulting in their dismissal.

The application has no prospects of success.

Following the decision of the Works Council denying them condonation, the Applicants should have approached the General Engineering Committee in terms of Section 7.3 of the Code of Conduct S.I. 301 of 1996.  They did not do so.  The Applicants concede that they ought to have approached the General Engineering Committee on appeal.

Instead, the Applicants approached the Labour Court as if they were making a fresh application.  This was incorrect procedure.  The Applicants’ “application” is therefore not properly before the Labour Court and it cannot succeed.

In any event, the Applicants do not point out any misdirection on the part of the Works Council in their papers.  So even if they were to appeal to the relevant Committee, in the absence of some misdirection on the part of the lower tribunal, an appeal tribunal cannot interfere with the lower tribunal’s decision.

The application for condonation is therefore dismissed.  There will be no order on costs.

G. Makings,  respondent’s legal practitioner