RioZim Limited v Edward Nyathi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/280/2013
HELD AT HARARE ON 14 MAY, 2013
CASE
JUDGMENT NO. LC/H/280/2013
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IN THE LABOUR COURT OF ZIMBABWE     		JUDGMENT NO. LC/H/280/2013

HELD AT HARARE ON 14 MAY, 2013			       CASE NO./LC/H/551/2012

& 19 JULY 2013

In the matter between:-

RIOZIM LIMITED						-	Appellant

And

EDWARD NYATHI						-	Respondent

Before The Honourable L. Hove: President

For Appellant 	-	Mr. D. Chinawa (Legal Practitioner)

For Respondent 	-	Mr. O. Zimbodza (Legal Practitioner)

HOVE L.:

The facts of this matter are briefly that the Respondent was employed as an electrical engineer.  He was charged with two acts of misconduct that is

Habitual and substantial neglect of duty, and

Lack of skill

The events which led to the charges were that on 10 and 11 September 2010, the Respondent is alleged, contrary to his duties, to have failed to repair an important BLC mill motor.

It was alleged that he had put a loop which was too long and he used bolts which did not fit properly and this caused damage to the mill.

It was further alleged that the mill broke down completely because the Respondent had failed to effect proper repairs on two occasions.

He was however found not guilty of habitual and substantial neglect of duty.  But he was found guilty of lack of skill.

During the hearing before this court, the Respondent denied that he had lacked the necessary skill required.

The Appellant challenges his conviction and dismissal by the hearing authority which he alleges arrived at a wrong conclusion due to their failure to appreciate that;

“(a) the repairs were done as a temporary measure

(b) the repairs were meant to last only 7 days to facilitating the purchase of a spare motor.

(c)the employer had delayed in providing the spare motor he had recommended be bought.”

Respondent argued that there were three options regarding what could be done to the BCL mill motor, and the option he picked was the best to enable full operations to resume with minimum delays and less stoppage on operations.

He acted with full knowledge of his supervisors in opting for this option and his superiors had given him the go ahead.  The repair was known to be temporary for at most 7 days to allow for the delivery of the spare motor.  He further submitted that he had recommended that a spare motor be brought to replace the broken down motor.

Respondent further submitted that it was wrong to convict him of lack of skill when the Appellant itself had failed to provide Respondent with all the necessities needed to perform his duties.

It is an accepted principle of law that the dismissal of an employee who is not capable of performing his job properly will be fair provided the employer acts reasonably in the given circumstances of each case.

In the book Selwyn’s Law of Employment Seventh Edition: Butterworth; the learned author had this to say;

“ thus, faced with the problem of an incompetent worker, what does the reasonable employer do?  He enquires into the matter, to find out why the employee cannot do the job adequately.  Has he been trained adequately?  Has he been trained properly, so that he knows how the job should be done?  Has he been properly supervised, …..…………. Does he have proper equipment, sufficient support staff and facilities?  In other words, the employer’s first task is to find out the reasons for the alleged incompetence and so far as it is possible, to do something about it from the employer’s point of view.”

In casu a temporal repair was done with the full knowledge of the Respondent’s Supervisor.  Recommendations were made that a spare motor be brought in as the repairs would last only seven days.  The employer did nothing to bring in a spare motor in 21 days.

Further the repaired motor had to be stopped twice before it eventually broke down on the 21st but on both occasions there is no evidence that the resident engineer checked or supervised the repairs which had been effected to last only seven days.  The spare motor was not availed within the seven days as had been recommended.  The resident engineer or other of the Respondent’s superiors ought to have checked the Respondent’s performance and supervised him properly.  The Appellant in this case quiet clearly failed to ensure from its(the employer’s side) side that the Respondent was properly supervised and further that he had sufficient  facilities to enable him to function efficiently.

In the Supreme Court case of

Zimbabwe Mining Smelting Company limited vs Matuka SC246/92

The court emphasized the need to avail adequate facilities to an employee before alleging any incompetence or lack of skill.

In the case of Quest Motor Corporation (pvt) Limited vs Nyamukura 2000(2) ZLR84 the court held as unfair the dismissal of an employee who had not had sufficient training and supervision.  The court observed that the employer had the duty to provide all the necessary assistance in casu the employer inspite of knowing that the repairs would not last past seven days, did nothing to provide a spare motor and failed to supervise the Respondent.

The courts also have observed that an employer, before dismissing for lack of skill should consider a transfer to a suitable alternative employment.  This is the standard expected of a reasonable employer.  The employer should have considered if there was some other work which could have been offered within the level of competence of the employee before dismissing for lack of skill.

See in this regard

Quest Motor Corporation (pvt) Limited vs Nyamukura (supra)

Kwangwari vs Commercial Bank of Zimbabwe HH 79/03

I am thus satisfied in the circumstances of this case that the employer did not show that the Respondent was indeed guilty of the misconduct of lack of skill to warrant a dismissal or at all.

Having found thus, it becomes unnecessary for me to go into the other issues raised as I accordingly make the finding that the Respondent’s dismissal was unfair and wrongful.

I accordingly order as follows;

The appeal be and is hereby dismissed.

That the decision to convict and dismiss the Respondent be set aside.

That the Respondent be reinstated into his former position with no loss of salary and benefits.

That should reinstatement no longer be an option, the Appellant pays the Respondent damages for the premature loss of his employment and in lieu of reinstatement.

Should parties fail to agree on the quantum of damages in terms of paragraph 4 above, that either party can approach the court for quantification.

That each party bears its own costs.

Chinawa Law Chambers – Appellant’s Legal Practitioners

Zimbodza and Associates – Respondent’s Legal Practitioners