Plastique Industries v Mudimu Acts

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H486/14
HARARE ON 21st JULY, 2014
CASE NO. LC/H/928/13
AND 1 AUGUST, 2014
JUDGMENT NO. LC/H496/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H486/14

HARARE ON 21st JULY, 2014			                         CASE NO. LC/H/928/13

AND 1st AUGUST, 2014

In the matter between

PLASTIQUE INDUSTRIES				–	Appellant

And

MUDIMU ACTS	–	Respondent

Before The Honourable E. Muchawa, J.

For Appellant :	L. Fraser (Director)

For Respondent:	G. Pendei (Legal Advisor)

MUCHAWA, J.

This is an appeal against the determination of the National Employment Council Appeals Committee of the Plastic Manufacturing Industry (Appeals Committee). The Appeals Committee ordered the reinstatement of the Respondent or damages on the basis that Appellant had used an invalid Code in the disciplinary proceedings, which proceedings were found to have been a nullity.

Respondent was charged of theft of company property in terms of the Appellant’s own internal Code of Conduct. Criminal proceedings were instituted and he was convicted. The disciplinary proceedings found that on the basis of the evidence before the Committee, it was not possible to conclude that Respondent had stolen the motor in question. He was however found guilty and dismissed on the basis of the conviction in the criminal matter.

Appellant’s own internal Code of Conduct was registered in the early 1990s. the National Employment Council (NEC) registered a Code of Conduct for the Industry in 2012.

In terms of Section 101(1b) of the Labour Act the NEC Code of Conduct supersedes that of the Works Council (Company level). It provides;

“Where a code is registered by a works council in respect of any industry, undertaking or workplace represented by an employment council and the employment council subsequently registers its own code, the code registered by the employment council shall supersede that of the works council, unless the works council refers it to the employment council for approval.”

Appellant had not submitted its own workplace Code for approval by the Employment Council.

The grounds of appeal before me are summarized as;

The National Employment Council Appeals Committee erred on a point of law by holding that an unregistered employment code is of no legal consequence or relevance.

The Appeals Committee erred by giving a cursory dismissal basing on a technicality without looking at the merits of the case.

The Appeals Committee grossly misdirected itself when it failed to acknowledge that the decision given by a criminal court has a bearing on the disciplinary matter which follows civil proceedings.

It was fatal for the tribunal to overlook the principles of unjust enrichment and natural justice by allowing the respondent to benefit from his own wrong of stealing from the company by awarding damages or reinstatement in the circumstances.

The appeal is opposed. I deal with each ground of appeal below;

Is the dismissal void and a nullity at law.

Appellant argues that the position taken by the Appeals Committee is simplistic and an erroneous interpretation of the law.

I was referred to the case of Colcom Foods Ltd vs. Chatira S-135-00 where in considering a penalty the Court took the view that where an unregistered Code of Conduct provided a penalty less than dismissal, then an employee could argue that an unregistered Code provided for a lesser penalty. My opinion is that this case and that of Makuwaza vs. National Railways of Zimbabwe  1997 (2) ZLR 453 (S) does not deal with the issue at hand and these cases are therefore distinguishable.

Reference was also made to Section 2A of the Labour Act [Chapter 28:01] and I was enjoined to advance social justice and democracy in the workplace by reversing the position taken by the Appeals Committee.

On the other hand Respondent urged me to uphold the determination of the Appeals Committee as a correct interpretation of the law. Section 101(1b) is said to be clear and not ambiguous in stating that the NEC Code supersedes the internal one. It is common cause that Appellant did not submit its internal Code for approval to the NEC. As a wrong Code was used in the dismissal of Respondent, such a dismissal is said to be an unfair dismissal in terms of Section 12B of the Labour Act. This sections provides that an employee should be shown to have been dismissed in terms of an Employment Code. An Employment Code is defined in Section 2 of the Labour Act as one registered in terms of Section 101 of the Labour Act.

This case is on all fours with that of Zimbabwe Newspapers (1980) Ltd vs. Ndlovu

2000 (1) ZLR 127 (SC). There was an earlier registered Code and a 1994 unregistered one. In that case it was held that;

“Having discovered that the 1994 Code had not been registered, the Tribunal could not expected to ignore the fact that the disciplinary proceedings conducted against Kalani in terms of that Code were a nullity.”

In the matter of Godwell Kwedero vs. Nyadire Mission Hospital LC/H/231/1 I held as follows;

“-------- when the legislature came up with Section 101 of the Labour Act [Chapter 28:01] it bestowed upon employers and employees the right to come up with Employment Codes of Conduct, there was a caveat that such Codes should be registered. Section 101 (2) lays out the necessary provisions that have to be met for a Code to be registered. Once registered Codes enjoy the full force of law. An unregistered Code is only a draft without legal power and is unenforceable.”

The above applies equally to the need to abide with Section 101 (1b) in sending an internal Code for approval by the employment council.

I therefore find that the disciplinary proceedings against Respondent were null and void, hence incurably bad. The finding of the Appeals Committee cannot be faulted in this regard.

Did the Appeals Committee err by dealing with the matter on a technicality

Like Appellant in casu, it had been argued in the matter of Zimbabwe Newspapers (1980) Ltd vs. Ndlovu 2000 (1) ZLR 127 (SC) that the Tribunal should have determined the matter on the merits and not on the basis of the invalidity of the Code of Conduct. Reference was made to the case of Dalny Mine vs. Banda SC 39/99. Therein (Zimbabwe Newspapers supra) it was held that for the Court to refuse to declare an act in question null and void on some technical ground, would be to ignore the Court’s fundamental duty to see that justice is done.

I agree with the above position and consequently find that the Appeals Committee did not err in disposing of this matter on the technical ground as it did. The Dalny Mine vs. Banda supra would only apply where the technicality does not vitiate the proceedings as in casu.

Effect of a criminal conviction on the disciplinary hearing

The Appeals Committee stated that;

“the decision in a criminal matter does not have a bearing on the disciplinary matter which follows civil proceedings.”

Appellant referred me to the Civil Evidence Act [Chapter 8:01] for the assertion that the criminal conviction is admissible evidence in civil proceedings. It has argued that this is because the burden of proof is higher in a criminal matter.

Respondent argued that criminal proceedings and labour matters are separate and divorced though a finding of a criminal court can be used as evidence. This, it was further argued, does not mean that civil proceedings should be substituted by criminal proceedings.

I agree with both Appellant and Respondent. The finding in a criminal matter is admissible evidence but at the same time it cannot substitute the disciplinary proceedings.

In casu Appellant’s disciplinary committee sought to substitute its own findings with those of the criminal court. After having found that on the basis of the statements from about nine witnesses called, it was not possible to conclude that the accused had stolen the motor, they proceeded to determine that they were bound by the Magistrates Court decision and accordingly found Respondent guilty and dismissed him.

In my opinion such a substitution is unacceptable as it contradicts the finding of the hearing committee. In the circumstances, the position taken by the Appeals Committee cannot be faulted.

Propriety of the remedy

The Appeals Committee set aside Respondent’s dismissal and ordered reinstatement without loss of salary and benefits or damages in lieu of reinstatement.

Appellant argues that such a remedy is not available where a determination is based on a technicality as per Dalny Mine case supra.

Further reference was made to the cases of Air Zimbabwe (Pvt) Ltd. vs. Chiku Mnensa and Anor SC 89/04 and Standard Chartered Bank of Zimbabwe vs. Chikomwe and 211 Ors S 77/2000. The principles advances are that an employee should only escape liability because he is innocent and not on account of a procedural irregularity. Where procedural irregularities are challenged rather than the merits of the case then new disciplinary proceedings should be instituted.

Respondent argued that Appellant was given an opportunity by the Designated Agent of NEC to revisit the disciplinary proceedings using a valid Code of Conduct, which advice ``they refused to take. The Appeals Committee had no choice but to order as they did. Appellant refused to have the matter remitted for a hearing de novo in terms of a valid Code.

It is also argued that there is no bar to Appellant reinstituting fresh proceedings after reinstatement.

I have already made a finding that the disciplinary hearing was void and a nullity at law which is incurably bad. In this case there is therefore nothing for the Court to remit for a hearing de novo (per MacFoy vs. United Africa Company Ltd (1961) 3 ALL ER 1169 (PC) at 1172).

It is also interesting to note that by praying for remittal of the matter for a hearing de novo, Appellant cannot escape reinstatement of Respondent as disciplinary proceedings cannot be held against a dismissed employee (Godwell Kwedero vs. Nyadire Mission Hospital LC/H/231/13).

I also wish to state that a perusal of the disciplinary hearing minutes also shows that even on the merits, Respondent was not found guilty.

The primary remedy for an unfair dismissal is reinstatement (See Art Corporation Ltd. vs. Moyana 1989(1) ZLR 304 (SC).

The Appeals Committee remedy cannot be faulted in the circumstances.

Accordingly, the appeal being devoid of merit, it be and is hereby dismissed with costs.