Power Speed Electrical v Member Nyanhi & 2 Ors

IN THE LABOUR COURT OF ZIMBABWE                   JUDGMENT NO. LC/H/17/2013
HELD AT HARARE ON 22 JANUARY, 2013 &                 CASE NO. LC/ H/220/2011
22 FEBRUARY 2013


In the matter between


POWER SPEED ELECTRICAL                        –              Appellant
And

MEMBER NYANHI                                 –              1ST Respondent
And
CEPHAS MULANGA                                –              2ND Respondent
And
AMON SIYANWI                                  –              3RD Respondent



Before The Honourable L. Matanda-Moyo, President
For Appellant      - Mr R. Matsikidze (Legal Practitioner)
For Respondent     - Mr V. Mapepa (Legal Practitioner)


MATANDA-MOYO, L.

      Mr V. Mapepa for the Respondents applied that the matter be stood down

to 1100 hours to enable the Legal Practitioner representing Respondents to

avail herself at Court. Mr Mapepa submitted that such Legal Practitioner was

attending a Pre – Trial conference at the High Court. No evidence was tendered

in support of such submissions. Let me warn all legal practitioners to start

respecting this court as a superior court. Most lawyers believe they can simply

get a file from a fellow colleague and come before this court to inform this court

to either postpone or stand down a matter. The decision to postpone or to

stand down a matter lies with the court. It is never the prerogative of a litigant

nor his or her representative. It is therefore prudent for all lawyers accepting
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briefs from fellow lawyers to come prepared to argue matters should the court

refuse to so postpone the matters.      There is now a general understanding

amongst lawyers that they control the proceedings. It is not so. What offended

the court most in this matter is that Mr Mapepa did not even bother to provide

proof of his claim. The court had no option in the absence of such proof but to

dismiss the application.



      This is an appeal against the decision of the National Employment Council

for the Engineering and Iron Steel Industry reinstating Respondents without

loss of salary or benefits. The N.E.C found that the Respondents could not be

found guilty for failure to obey a lawful instruction when such instruction had

been cancelled by the Managing Director.



      The brief facts are that Respondents were employed by the Appellant.

They were instructed to report for duty on Saturday 18 September 2010 to

complete an urgent project. It became necessary to again report for work on 19

September 2010. The Respondents asked to be paid double on the Sunday. The

parties failed to agree resulting in the foreman cancelling the Sunday project.

As a result the Respondents were charged with refusal to obey a lawful order or

instruction given by the employer or immediate supervisor in violation of clause

B (4) (d) Statutory Immediate 301 of 1996. The Respondents were alternatively

charged with violating Section 4(a) of Statutory 15/06.



      The disciplinary committee deadlocked and the matter was referred to

the Appeals Committee. The Appeals Committee found the Respondents guilty

and ordered their dismissal. The Respondents appealed to the NEC for the


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Engineering Iron and steel Industry which ordered that the Respondents be

reinstated without loss of salary or benefits.



      Aggrieved by that ruling the Appellant noted an appeal to this court on

the following grounds;

      1. That the National Employment Council grossly erred in its finding that

          the Managing Director cancelled the instruction to come to work when

          the Managing Director was never party to the negotiations.

      2. That the NEC erred in not upholding the dismissal when it was clear

          that Respondents had disobeyed a lawful order to come to work on

          Sunday as agreed.

      2.1. Once the Respondents had been given the requisite notice to work

      overtime, they fell to be disciplined for any misconduct occurring during

      such overtime.

      3. The NEC erred in finding that the Hearing Committee failed to accord

      the employees a chance to appear and testify before it. The employees

      testimony was recorded and there was no need to hear them orally.

      4. The NEC grossly misdirected itself in finding that the employees were

      charged using the wrong code of conduct that is the National

      Employment Code; when in fact it was apparent they were never

      convicted under such code.           Respondents were found guilty of

      contravening clause B(4) (d) CBA:Engineering and Iron Steel Industry.

      Appellant prayed the decision of the N.E.C. be set aside and the dismissal

      upheld.

      Respondents submitted that this appeal is improperly before me as the

      Appellant has no right of appeal. Section 7 of the CBA does not allow an


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      employer to appeal against the decision of the disciplinary committee.

      Section 7(2) provides;


             “An employee shall have the right to appeal in writing against a decision of the
             disciplinary committee within five working days of his advised of the decision; such
             appeal shall be ---------“


      The Respondent argued that in terms of Statutory Instrument 301/96 it is

only the employee who enjoys the right of appeal. Appellant admitted that

Statutory Instrument 301/96 does not expressly provide for an employer’s right

of appeal from any decision of the disciplinary committee.                       However he

submitted that such exclusion should not be taken to mean prohibition of

appeal. Such exclusion is not tantamount to denying the employer the right of

appeal.



      The Appellant argued that in terms of Section7 (2) an Appeals Committee

has equal composition as the disciplinary committee. Section 3(1)(a) and (b)

deals with the composition of the disciplinary committee which consists of two

members appointed by management and two member’s elected by the workers

themselves. Section 7(2) (a) provides for an Appeals Committee consisting of

four members. Where the disciplinary committee fails to reach a decision and

the matter is taken to the Appeals Committee for a decision, then such decision

of the Appeals Committee is as good as the decision of the disciplinary

committee.     The Appeals committee becomes the disciplinary committee

Statutory Instrument 301/96 does not provide for a procedure where the

decision is a deadlock. The disciplinary committee failed to make a decision.

The matter was referred to an Appeals Committee for a decision. Once the


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committee is being referred to as an Appeals Committee then it becomes

wrong. It is common cause that there was no decision by the initial committee.

The matter could not be referred on appeal. It is my finding therefore that the

other committee which set to hear the matter had to hear evidence afresh so as

to come up with a decision. The Respondents were not represented at this

hearing but the committee decided to dismiss them. The NEC found that it was

improper for such committee to dismiss the Respondent without hearing them.

I agree. The second committee sat after failure by the original committee to

come up with a verdict. It was to hear the matter.



      The Respondents appealed to the NEC which was proper. The question is

can the employer appeal to this court from a decision of the N.E.C.. From a

reading of the code the answer is no. The code is clear that it is only the

employee who has a right of appeal. A code is a negotiated agreement between

the employer and the employee. The employer was alive to the fact that it had

no right of appeal. The solution lies in amending the code. It is not for this

court to do so. I agree with Appellant counsel’s submission that the code needs

revisiting. Before such amendments the parties are obliged to adhere to the

terms of the code.

Section 11 of the code provides for revision of such code. It provide;
      “Revision
      11. This Code maybe be amended from time to time, by agreement between the parties, and
      subject to the provisions of Statutory Instrument 379 of 1990, as amended, in order to cater
      for changed circumstances, or additional or novel act of conduct.”


      The employer cannot come and argue that this court imports provision of

Statutory Instrument 15/06 into Statutory Instrument 301/96. It is not for this


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court to do so. The parties should proceed in terms of section 11 above to bring

the code into conformity with the provisions of the National Code of Conduct.



Accordingly the appeal is not properly before this court and is hereby dismissed.




Mawere and Sibanda – Appellant’s Legal Practitioners




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