Ronald Makazhe v Unifreight Africa Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/536/16
HELD AT HARARE 31 MAY 2016
CASE NO
JUDGMENT NO LC/H/536/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/536/16

HELD AT HARARE 31 MAY 2016				CASE NO LC/H/516/15

& 9 SEPTEMBER 2016

In the matter between:

RONALD MAKAZHE					Appellant

And

UNIFREIGHT AFRICA LTD				Respondent

Before The Honourable Hove, J

For Appellant			E F Maposa (Legal Practitioner)

For Respondent		Miss S Nyagura (Legal Practitioner)

HOVE J:

The appellant was employed as an accountant by the respondent’s engineering division.

He was arraigned before a disciplinary committee for acts of misconduct.  He was found guilty of unsatisfactory work performance.  He was dismissed.

This appeal is against the decision to find him guilty and to dismiss him.  But in heads of argument filed in appellant’s behalf, the issue of conviction is not argued it may be that the appellant had decided to abandon it and merely base his appeal on challenging the penalty imposed.

But even if he has not abandoned his challenge to the conviction, nothing has been placed before the court to enable it to vary the decision to convict the appellant.  The conviction will accordingly stand.

Vis a vis, the issue of penalty, the appellant denies that the offence that he was convicted of was of a serious nature.  He argued that the initial hearing committee did not make that submission.  It did not aver that the appellant will be dismissed because we have formed the decision that the offence is of a serious nature, going to the root of the contract.

Further, it was argued that clause 3.3.5 of the code of conduct which the Human Resource Director relied on to justify his decision to confirm the decision to dismiss was not the one applicable to the appellant’s case but clause 3.3.2 and in terms of the code, the agreed penalty was a written warning or a severe written warning.  It is argued that the employer failed to exercise its discretion in terms of law.  This was argued to be so, because, the code of conduct created a hierarchy of penalties which the employer was in law enjoined to comply with.

Further it was argued that the employer exercised injudiciously its common law powers as the offence committed did not go to the root of the contract of employment and the conditions of employment agreed to between the parties did not make that type of offence a serious one.

It was further submitted on behalf of the appellant that in any event, the common law position allowing an employer to dismiss when it is of the view that the Act of misconduct goes to the root of the contract has been altered by statute.  The Labour Act [Chapter 28:01] provides in section 12 B as follows;

every employee has the right not to be unfairly dismissed.

an employee is unfairly dismissed

if, subject to, subsection (3), the employer fails to show that he dismiss the employee in terms of an employment code, or

in the absence of an employment code, the employer shall comply with the model code made in terms of section 101 (9).

It was argued that the legislature had expressly altered the common law powers of

an employer to dismiss, where he could dismiss once he formed the opinion that the offence committed was a serious one going to the root of the contract of employment.  The employer was now required to show that the dismissal was in terms of the code before dismissing.

It was further argued that the code of conduct’s purpose is to create certainty by spelling out what constitutes on offence in a given work place and the penalty to be imposed for the commission of such offence.  See the case of OK Bazaars (Pvt) Ltd v Gwashu SC 96/00.

The appellant further argues that in Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (S) the court established the principle that summary dismissal is not always the correct decision even when the employer holds the view that the offence in question is contrary to the conditions of employment.  The employer still has to make a decision on whether the misconduct warrants dismissal or it is trivial or excusable.  The court stated that

“The seriousness of the misconduct is to be measured by whether it is inconsistent with the fulfilment of the express or implied terms of his contract.  If it is then it is serious enough prima facie to warrant summary dismissal.  Then it is up to the employee to show that his misconduct with the fulfilment of the conditions of his contract was so trivial so inadvertent, so abhorrent or otherwise excusable, that the remedy of summary dismissal was not warranted.”

The appellant explains that his offence was such that dismissal was not warranted.  In paragraph 21 of his heads of arguments he lists the circumstances and reasons why he is of the view that his offence ought not to have been visited with the penalty of dismissal.  He argues that the negligence was not of a serious nature.

He argued further that the law in relation to the establishment of the  employment code provides for the fact that an employment code shall provide for the penalties for any breach of the employment code in  terms of section 101 (3) (c) of the Labour Act.  The provisions of the code of conduct are thus clothed with legal status and are binding on the parties involved.

Further it was submitted that section 65 (1) and (4) of the Constitution of Zimbabwe guarantees an employee’s right to fair labour standards and to just equitable and satisfactory conditions of work.  Thus when faced with a common law position which is unfair, the constitution should prevail.

The respondent argued that the employer has a right to dismiss in terms of its common law right to dismiss for a serious offence going to the roots of the contract.

Reliance was placed on the cases of;

Toyota Zimbabwe v Posi SC 55/07

DHL International v Tinofireyi SC 80/14

Mvere v Tanganda Tea Ltd SC 130/04

Standard Chartered v Chapuka SC 125/04

It argued that an appellate court cannot interfere with a lower court or tribunal’s

discretion if the exercise of discretion has been exercised on judicial grounds and for sound reasons as was the case in casu.

It was argued that the Supreme Court, held in the Toyota Zimbabwe case (supra) that

“We are bound by the rule of construction to the effect that we must presume that there is no intention to alter the common law.  As Mr Zhou put it, the Labour Act  contains no provisions which either expressly or by implication purports to alter the common law principle that an employer has a right to dismiss an employee following conviction for a misconduct of a material nature going to the root of the employer/employee relationship.  A code of conduct cannot alter or abrogate a principle of the common law.  Code of conduct is a product of an agreement.”

Again in the case of DHL International (Pvt) Ltd v Kevin Tofireyi SC 80/14 the court reaffirmed its position in the Toyota (case) and stated that

“The crisp issue for determination is therefore	 whether the provision of a code of conduct can override, the therefore alter, the common law principles governing an employer’s right to dismiss and employee for misconduct that goes to the root of the employment contract.

--- it is a common law position that commission by an employee of conduct inconsistent with the fulfilment of express or implied conditions of the contract of employment entitles the employer to dismiss him if the circumstances of the commission of the offence shows that the continuance of the normal employer employee relationship has in effect been terminated.”

I think the Supreme Court has made its position on the applicability of codes of conduct quiet clear in the cases cited.  I do not think it is now open to this court to hold that the provisions of a code of conduct have the effect of nullifying the employer/employees common law rights.

In the result, the court finds in line with the decisions of the Supreme Court that the employer had the right to dismiss the appellant for the acts of misconduct that it believes are serious and going to the root of the contract.

In the premises, the appeal is dismissed.

Each party will bear its own costs.

Chierenje Legal Practitioners, appellant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners