Robert Luwes v Shamva Gold Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/124/2023
CASE NO LC/H/696/22
HARARE, 14 MARCH 2023
02 MAY 2023
ROBERT LUWES
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/124/2023

HARARE, 14 MARCH 2023

CASE NO LC/H/696/22

02 MAY 2023

ROBERT LUWES

APPELLANT

SHAMVA GOLD MINE

RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant    Mr L. Pwanyiwa, Unionist

For Respondent    Mr W. Musengwa, Attorney

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent. The appeal is provided for by section 92D of the Labour Act Chapter 28:01. The grounds of appeal were initially two-fold. However upon challenge by respondent, this Court struck off the second ground. The remaining ground appeal reads

“1.1 The Appeals Committee erred in making a startling finding that the alleged act constituted an offence or misconduct, and that it warranted a charge in terms of the Code of Conduct otherwise known as the S.I. 165 of 1992.”

Appellant argued that the alleged offence was not work-related and therefore it’s not covered by the relevant employment code. On the other hand, respondent argued that the offence was work-related. It is common cause that on Saturday 2nd July 2022 whilst off-duty, appellant drove a motor vehicle within mine premises and had an accident. However he was not a licensed driver. He was charged with misconduct. Respondent relied on its Mine Manager’s Instruction Number 03/21. The relevant paragraphs thereof read;

“3.9. Mine premises includes all working areas and mine residential areas. (High Density Village, Hideaway and Mujinga).

5.1 No person whether or not an employee shall operate a motor-vehicle within mine premises without a valid driver’s license.”


Appellant evidently breached the employer’s instruction embodied in the paragraphs excerpted. However, his ground of appeal raises the question as to how far an employer instruction goes in terms of time. No relevant case authorities were cited on this point. However, the Court found the case of

Tanganda v Mvududu SC 01/07 where GARWE JA, as he then was, opined,

“It is, I think, common knowledge that criminal offences committed at the workplace will in many instances also be subject to internal disciplinary proceedings.”

In that case the employee had assaulted a patron at a cocktail bar within the company employer’s premises. The Supreme Court concluded that the employee was guilty of misconduct despite the fact that the assault occurred whilst he was not on duty. Likewise, appellant in casu was guilty of misconduct notwithstanding that he was off-duty. Accordingly, his appeal to this Court lacks merit and ought to be dismissed.

Wherefore it is ordered that,

1. The appeal be and is hereby dismissed; and

2. Each party shall bear its own costs.

G MUSARIRI
J-U-D-G-E
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