Superior Holdings (Pvt) Limited v John Madondo & 36 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/284/2016
HARARE, 15 FEBRUARY 2016 &
6 MAY 2016
CASE NO LC/H/214/2015
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/284/2016

HARARE, 15 FEBRUARY 2016 &				         CASE NO LC/H/214/2015

6 MAY 2016

In the matter between

SUPERIOR HOLDINGS (PVT) LIMITED				APPELLANT

Versus

JOHN MADONDO & 36 OTHERS					RESPONDENTS

Before the Honourable P Muzofa J

For the Appellant	F A Rudolph  (Legal Practitioner)

For the Respondent	M Nkomo (Legal Practitioner)

MUZOFA J:

The respondents were employed by the appellant until 3 August 2009 when they were dismissed for absence from work for more than five days.

According to the respondents in 2009 the appellant started paying the respondents’ wages in instalments. The respondents were aggrieved by this conduct, from 26 May to 24 June 2009 the respondents reported for work but refused to perform their duties.

They were charged in terms of the applicable Code for being absent from work for more than five days. The disciplinary proceedings were conducted before an enquiries committee which reached a deadlock. The matter was referred to the Works Council which also reached a deadlock. After the Works Council deadlock the appellant dismissed the respondents. Thereafter the matter took a long and tortuous journey until it was referred to an arbitrator by Justice MANYANGADZE for determination.

The arbitrator found that the respondents had been unfairly dismissed, An order for reinstatement and payment of damages in lieu of reinstatement in the alternative was made.

The appellant has approached this court on appeal. Four grounds of appeal were set out on the notice of appeal which raise the following issues for determination.

Whether the arbitrator misdirected himself in finding that there was selective disciplinary action against the respondents.

Whether the arbitrator grossly erred in finding that absence from work for more than five days may be excused if the individual concerned can offer a good reason for his absence.

Whether the finding that the explanation given by the respondents for their failure to tender service was a good reason, when in fact the respondents had taken the law into their hands.

Whether the arbitrator erred in finding that there was unlawful dismissal and thereby ordering the reinstatement of the respondents or payment of damages in lieu of reinstatement.

I will address the grounds of appeal in turn.

Before dealing with the grounds of appeal I need to highlight an issue that both parties did not exercise their mind. The ghost of the deadlock still reappears on appeal. Technically the appellant dismissed the respondent with no determination from any of the tribunals. That would invariably mean at that stage the so called dismissal was invalid. The only determination on the merits was eventually done by the arbitrator. The arbitrator actually found that the dismissal by the appellant was null and void. Since this issue was not addressed by the parties the court will not address it. There is no information whether they were on suspension with or without salary immediately before the disciplinary proceedings.

I now turn to address the grounds of appeal.

The first ground of appeal relates to selective application of the disciplinary action. According to the respondents the appellant charged thirty seven employees out of the fifty employees that were involved. This was unfair since there was selective application of justice. The arbitrator upheld the respondent’s submission on this point on the basis that there was no evidence how the appellant selected the respondents for disciplinary action out of the total workforce. The arbitrator relied on the cases of Lancaster Steel (PVA) Ltd v Elijah Zvidzai & Ors SC 29-95 and Madhatter Minining Company v Tapfuma SC 299-12.

The reliance on the Madhatter case was misplaced that case did not address the parity principle. The Lancashire Steel case indeed addressed the parity principle but it did not support the arbitrator’s conclusion.

In that case McNALLY JA at p6 of the cyclostyled judgment said:

“Arguments may be addressed ad mis ericordiam as to how unfair it is that the four respondents out of a number of forty workers who participated in the unlawful collective job action should have been selected for punishment, but such arguments cannot absolve them of their breach of their statutory duty not to participate in such action. It is not uncommon for the alleged ringleaders in any unlawful gathering or action to be singled out for punishment. If they are guilty it is not in law relevant that others may also have been guilty.”

This line of thought was confirmed in the latter case of Dube v Standard Chartered Bank SC 105-04.

Clearly the conclusion by the arbitrator was not supported by the legal authorities he referred to thereby coming to an incorrect decision.

The parity principle would have indeed applied in a case such as this one. The appellant did not controvert the legal reasoning by the respondents. However it was argued that there was no evidence before the arbitrator that fifty employees were involved.

The respondents’ submission resonates with the obiter dictum in Jiah & Ors v Public Service Commission & Anor 1999 (1) ZLR 17 (SC). In that case MUCHECHETERE JA after examining the law on the parity principle at page 29:

“It is similarly clear that in the present case the appellants were not the only ones to have gone on strike. Why they alone were singled out for the treatment they got after they and the rest of the strikers had written similar letters for reinstatement was never clarified. They simply became the ‘whipping boys’ or (‘girls’). This was in breach of the equity principle and should therefore also be classified as an unfair labour practice under our laws”.

Despite the sentiments in the above case precedent has shown that the approach in such cases where a number of employees engage in the same conduct, it would appear that what is of importance is the misconduct. The employer is at liberty to charge certain employees. This approach was confirmed in the case of Mashonaland Turf Club v Mutangadura SC 5-12. The court considered circumstances such as this case and concluded that the Jiah case was not applicable and noted:

“The fact that the respondent was singled out for disciplinary action becomes irrelevant once it is accepted that his misconduct went to the root of his employment contract.”

To that extent the ground of appeal succeeds, the arbitrator fell into error.

The second ground of appeal is a question of interpretation. The respondents were charged in terms of offence 48 of Statutory Instrument 246 of 1993. That section provides:

“48.	Absence from work for more than five days

This offence is the same as that described in 6 above except for the duration of the absence.”

Offence 6 provides:

“6	Absence from work without permission

This form of misconduct includes taking time off without leave and taking time off without being granted leave of absence. Such absence may be excused if the individual concerned can offer a good reason for his absence and if he can show that he made every effort to inform his employer of the situation (underlying for emphasis)

According to the appellant the arbitrator erred in finding that the requirement for a good reason for absence in offence 6 is applicable to offence 48. Further to that it was submitted that the offence was the same but the proviso did not apply.

I do not agree with the interpretation of offence 48 given by the appellant. The S I is a product of both parties. If parties did not intend that the proviso be applicable to offence 48 it could have been indicated so. The parties’ intention was to create an offence similar to offence 6 in all respects save for the duration. The only difference in my view between offence 6 and offence 48 is the duration and nothing further.

The reference to the different penalties for the two offences is irrelevant. This is so because the penalty would be considered only after the verdict. Thereafter where there is a conviction the prescribed penalties would be applicable.

The ground of appeal is meritless and dismissed.

In the third ground of appeal the appellant impugns the arbitrator’s finding that the respondents’ explanation for absence from work for more than five days was a good reason.

The facts forming the basis of the case are not in dispute. The arbitrator found that despite presenting themselves for duty the respondent did not work therefore they were absent from duty. For the appellant it was submitted that the respondent a good reason should be lawful, the respondents resorted to self-help. Further to that it was submitted that if the respondents had a collective grievance they were supposed to follow the grievance procedure in line with the Code of Conduct and not resort to withdrawal of labour. The court was referred to Speciss College v Chiriseri & Ors SC 2-13 and Net One Cellular (Pvt) Ltd v Communications & Allied Workers Union of Zimbabwe & Ors SC 89-05.

It was submitted for the respondents that the appellant paid wages in instalments this was an illegality which precipitated an illegality. The appellant should not be allowed to benefit from its’ own misdeeds.

The arbitrator found that the respondents although they were absent for more than five days they had advised the appellant of their grievance. Reporting for duty was a step towards engagement therefore their absence was well within the proviso in the said offence.

There was no dispute that the appellant faltered in payment of wages. No dispute that the statutory instrument outlawed payment of salaries and wages in instalments. There was not dispute that the withdrawal of labour was an action aimed at coercing the appellant to accede to the respondents’ demands. For all intents and purposes although the respondents conduct was charged under absence from work without leave their conduct was a collective job action. I will not address the issue on the appropriateness of the charge since this was not before me. However where a collective job action is engaged, for it to constitute a good excuse for such conduct to be excusable it should be lawful.

The respondents conduct was unlawful. The decision to withdraw labour enmasse was not done in terms of section 104 (2) of the Labour Act [Chapter 28:01] “the Act”. I agree with the appellant a good reason should be lawful. It may be morally understandable that the appellant failed on its duty to remunerate therefore the workers would withdraw labour. This is the concept of the eye for an eye and it certainly results in blind people.

As properly stated by the respondents an illegality precipitated an illegality. It was not for the respondents to react to the illegality by the appellant with an illegality. It was supposed to follow the proper procedures to claim their outstanding salaries.

The Supreme Court in the Net One case supra had occasion to address the issue of absence from work for more than five days without a reasonable excuse. The position applies in casu and aptly captured:

“The absence from work by reason of participation in lawful industrial action would have given an adequate defence to the charge preferred against the employees. Participation in an illegal Collective job action does not provide a defence to the charge faced by the employees.”

That sums it, the respondents had no good excuse. I do not agree with the respondents’ elucidation of the law on this aspect.

The arbitrator erred in the application of the law. Since the respondents had no good excuse the penalty for a breach is a dismissal.

Accordingly the following order is made:

The appeal be and is hereby upheld.

The arbitral award be and is hereby set aside and substituted by the following:

“The respondents be and are hereby dismissed from the date of the arbitral award.”

There be no order as to costs.

Scanlen & Holderness, appellant’s legal practitioners

Donsa-Nkomo & Mutabgi Legal Practice, respondents’ legal practitioners