S. Sibanda and 16 Others v Trentyre Private Limited

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/134/13
HELD AT HARARE ON 17th January, 2013
CASE
JUDGMENT NO.LC/H/134/13
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THE LABOUR COURT OF ZIMBABWE	           JUDGMENT NO.LC/H/134/13

HELD AT HARARE ON 17th January, 2013             CASE NO.LC/H/648/10

In the matter between:

S. SIBANDA AND 16 OTHERS				Appellants

And

TRENTYRE PRIVATE LIMITED				Respondent

Before The Honourable L. Hove, President

For Appellants: Mr A. Ndota (Unionist)

For Respondent: Mr J.C. Muzangaza (Legal Practitioner)

HOVE, L.

The Appellants in this case engaged in a collective job action.

The employer brought disciplinary proceedings against the Appellants and found them guilty and dismissed then. They appealed against the decision to dismiss them but were unsuccessful before the Designated Agent of the National Employment Council for the Motor Industry.

The Appellants noted an appeal to the Labour Court against the decision to dismiss them.

The Appellants raise the following points in arguing their appeal.

That the strike was not an unlawful one as it was resorted to in defence of an

immediate threat to the existence of Workers Committee.

That the Disciplinary Committee was improperly  constituted as it was only composed

of employer’s   representatives with no workers representatives.

The Disciplinary Committee erred in not   considering that disciplinary proceedings

were    not punitive but corrective.

That there was bias.

That there was never any application for a show cause order.

That mitigation was not considered before the    imposition of the penalty

The employer argued in Court and in its Heads of Arguments that;

There is no appeal before the Court against the decision of the Disciplinary Committee

Unfair discrimination was non-existent in the manner in which the appeals were dealt with

That the strike was not in response to the imminent dissolution  of the Workers Committee

That it was false that the Respondent angrily responded to the request for protective clothing

That only 4 Appellants were properly before the Court.

The Court will deal with the raised points one after the other.

Are there more than 4 Respondents in this appeal?

When the matter was dealt with previously it was cited as S. Sibanda and 16 Others vs. Trentyre.

When the appeal was noted, the decision that was being appealed against was the National Employment Council for the Motor Industry’s decision in the matter of S. Sibanda and 16 Others vs. Trentyre. When the appeal to this Court was noted it was S. Sibanda and Sixteen Others. R.S. Sibanda noted the appeal. It is not clear in what capacity R.S. Sibanda noted the appeal on behalf of the Appellants.

During the hearing, a Trade Unionist Mr Ndota appeared on behalf of the 17 Appellants. His right to appear was challenged successfully by the other side.

After he was excused, the four Appellants who were in Court could only represent themselves as they had no mandate nor capacity to represent those who were not in Court.

So while the appeal related to 17 Appellants, only four were present in Court.

Is there an appeal before the Court?

I could not understand why the Respondent said there was no appeal against the decision of the National Employment Council (NEC). The appeal was noted after the Appellants had lost their appeal with the NEC. The grounds of appeal in Annexure ‘A’ (page 6 of the record) challenge the NEC decision which had no reasons given for the blanket statement that;

“The appeal be thrown away as it had no legal basis”

No reasons for this position were given one would not know what the decision maker took into consideration. The National Employment Council seriously misdirected itself when it failed to give reasons for its decision.

The Respondent’s lawyer does not elaborate when he stated that there was no appeal against the decision of the NEC. It’s just a bold statement that is not substantiated or supported by anything. The Court cannot find merit in that point.

Was there selective punishment?

Even if it can be established that there was selective punishment our law does not prohibit selective punishment see the case of;

LANCASHIRE STEEL VS ELIJAH ZVIDZAI & ORS SC 29/95

Again nothing turns on the issue raised that the employer had been reacting to the demand for protective clothing. That issue is not relevant. The relevant issue is whether or not the strike was in response to the imminent dissolution of the worker committee.

If indeed the strike had been in defence to a threat against the existence of the Workers Committee, then the workers would not have failed to raise it right from the word go. That they only raised it in writing now shows that the reason for the strike was not to defend the threatened existence of a worker’s committee.

The Appellant’s argument that the strike was not unlawful in that it was in response to an immediate threat to the existence of the Workers Committee fails to find favour with this Court.

Whether or not there was bias?

This is just a bold assertion which is not supported by anything. He who alleges bias bears the onus to show whether

“....... the person challenged has so associated himself with one of the two opposing views that there is a real likelihood of bias or that a reasonable person would believe that he would be biased.”

See: Barley vs. Health Professionals Council 1993 (2) ZLR 17 (s)

The Appellants have not even attempted to establish or show facts that would show a real likelihood of bias.

The Appellants have alleged that before sentence was passed, there was no mitigation which was considered.

The Respondent have not denied this.

It is a position of law that mitigation must be taken into consideration before sentence can be passed.  The employer was at fault in not asking for and considering any mitigatory factors.

The employees also allege that the original Hearing Committee was improperly constituted. If indeed this was so, the matter would have to be remitted to enable the matter to be considered in a fair manner. The Respondent has not challenged this issue so the Appellant’s averments would have to be taken as unrefuted.

The law however provides that the Court can hear the matter itself to curb the prejudice.

Dalny Mine vs. Banda 1999 (1) ZLR 220

I have already made a finding that the strike was not in response to an imminent threat to the existence of the Worker’s Committee. The workers do not dispute that they had not complied with the legal requirements before embarking on the strike. The strike was therefore illegal and there is thus no merit in the appeal with the exception that the matter ought to be remitted to the initial hearing body to enable it to hear the Appellants in mitigation and taking into considering the merits of such mitigation before imposing penalty.

I accordingly order as follows:-

The decision to find the Appellants guilty is upheld.

The matter is however remitted back to the Committee that imposed the penalty for it to take and consider mitigation before the imposition of penalties.

Private Security Workers Union – Appellant’s Representatives

Muzangaza, Mandaza & Tomana – Respondent’s Legal Practitioners