Reclaim Plastics (Private) Limited v Samson Dube & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/217/2014
HARARE, 29 OCTOBER 2013
CASE
NO
JUDGMENT NO LC/H/217/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/217/2014

HARARE, 29 OCTOBER 2013 &			  CASE NO LC/H/439/2011

11 APRIL 2014

In the matter between:

RECLAIM PLASTICS (PRIVATE) LIMITED			APPELLANT

Versus

SAMSON DUBE							1stRESPONDENT

And

SMILE MAKUNI							2nd RESPONDENT

Before The Honourable B S Chidziva    :   Judge

For the Appellant		P Mabundu	(Legal Practitioner)

For the Respondent	G Pendei   (Legal Practitioner)

CHIDZIVA J:

The brief history of this matter is that the respondents were employed by the appellant. It is alleged that the respondents made a report at Mega Park and when an audit report was carried out the report was found to be false. They were suspended from duty on 4 November 2010 on allegations of making a false report. A disciplinary hearing was conducted and the respondents were dismissed from work. When the matter was referred for arbitration, the arbitration ordered as follows:

“Having considered all the evidence and arguments, I found that the dismissal of Smile Makuni and Samson Dube was procedurally and substantively unfair. Reclaim Plastics should reinstate the two without loss of pay and benefits with effect from the date of the suspension. If reinstatement is not possible, parties should negotiate and agree on damages in lieu of reinstatement within fourteen (14) days failure which they can approach the Labour Court for quantification of the damages.”

It is this arbitral award that the appellant is appealing against. The grounds of appeal are as follows:

The honourable arbitrator grossly erred and seriously misdirected herself on a point of law in failing to appreciate that there was nothing wrong at law with a Labour consultant presiding over disciplinary cases on behalf of the employer.

The honourablearbitrator grossly erred and seriously misdirected herself at law in failing to appreciate the import of the definition of Agent or employer’s representative as defined in the Labour Act as read with S I 15/2006.

The honourablearbitrator further erred and misdirected herself on a point of law in failing to appreciate that the respondents had committed acts of misconduct warranting dismissal in terms of the Code of Conduct.

Lastly, the honourable arbitrator seriously erred and misdirected herself in ordering that either party could approach the Labour Court for the quantification of damages in lieu of reinstatement as if the Labour Court was a court of first instance in this regard.

The appellant therefore prayed to this court that the arbitral award should be set aside and be substituted with the appropriate order.

The respondents in their response told the court that:

The learned Arbitrator did not err. She correctly found that the Labour Consultant in question was neither the respondents’ employer nor employer’s representative in terms of s 2 of the Labour Act [Cap28:01]. In any case, nothing much turns out on that point.

The learned Arbitrator did not err. She correctly comprehended the meaning of an agent or employer’s representative in terms of the law.

There was no misdirection on part of the learned arbitrator. She correctly found the appellant’s failure to substantiate its case against the respondents.

The respondents concede to their point but nothing much must turn out of it. Thus it is only this part of the arbitration award which this honourable court must correct.

The respondents therefore prayed for the dismissal of the appellant’s appeal.

The respondents have conceded that grounds 1, 2, and 4 of the appeal do not have any bearing on the findings of this court and the arbitrator. However the real issue to be decided is whether the respondents were unfairly dismissed or not.

The arbitrator made two essential factual findings that:

“(1)  	In his letter of 24 November 2010 to the Reclaim Plastics Manager, Sergeant Chipepura, of ZRP Ruwa wrote that Samson Dube never made a report against his employer. He checked police records going as far back as February 2010 and there was no record of any report from the two.

(2)	There is nothing in the letter from the Operations Director of Mega Pak to support the employer’s argument that the two reported theft of Mega Pak material by Reclaim Plastics. Furthermore Reclaim Plastics was not prejudiced in any way by Smile and Samson’s visit to Mega Pak. The two still have a business relationship.”

The relevant paragraph from the Operations Director of Mega Pak, Mr C C Mutimukhulu in his letter addressed to “TO WHOM IT MAY CONCERN” dated 29 November 2010 stated that:

“According to Mr Dube, the main motive for their visit was the fact that Mega Pak was the main source of Reclaim Plastics business and as workers it was their desire to maintain the cordial business relationship between Mega Pak and their employer.

Following the receipt of the workers concerns, the Mega Pak Audit Manager was tasked to visit Mr Redmile to understand the matter further. The Audit Manager’s investigations yielded no anomalies and the matter was closed. Since then, Mega Pak and Reclaim Plastics business relationship has been normal.”

This letter clearly corroborates the arbitrator’s finding that there was no evidence that the respondents reported theft of Mega Pak material by Reclaim Plastics.

In a handwritten letter,Sergeant Chipepura wrote a letter to the effect that Dube never made a report of theft at ZRP Ruwa.

The arbitrator was correct when she found that the appellant failed to prove that the respondents made a false report to Mega Pak and ZRP Ruwa.

In view of this therefore the court finds that the appeal lacks merit.

Accordingly it is ordered that the arbitral award be and is hereby upheld.

Mabundu Law Chambers, appellant’s legal practitioners