Tawurayi Mushayi v Unifreight Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/468/16
HELD AT HARARE 7 JUNE 2016
CASE NO
JUDGMENT NO LC/H/468/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/468/16

HELD AT HARARE 7 JUNE 2016				CASE NO LC/H/REV/15/14

& 5 AUGUST 2016

In the matter between:

TAWURAYI MUSHAYI					Applicant

And

UNIFREIGHT LTD					Respondent

Before The Honourable Muzofa, J

For Applicant			D Musengi (Legal Practitioner)

For Respondent		Musimbe (Legal Practitioner)

MUZOFA, J:

This is an application for review of respondent’s decision.  Respondent raised preliminary points in the notice of response, which were later abandoned.

Following allegations of misconduct the appellant was charged in terms of the respondent’s code of conduct “the code”.  The appellant was a managerial employee.  He was found liable and dismissed from employment with effect from 18 December 2013.  An internal appeal was unsuccessful.  The applicant approached this court to review the decision by the respondent.

The grounds for review set out in the notice are as follows:

The respondents (sic) proceeded under their code of conduct which was not applicable to managerial employees, having been negotiated without any representation or input by managerial employees.  The applicable code under the circumstances was the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006, as the applicant was a managerial employee.

The respondent erred in proceeding under its code of conduct which provide for a disciplinary committee whose composition did not include any managerial representatives, unlike in the case of non-managerial employees where provision was made for two employee representatives to sit in the Disciplinary Committee.

The Disciplinary Hearing was chaired by an official who was an interested party in the proceedings in that she had been seized with the complaint and/or investigations against the applicant and thus was biased against the applicant.

The Disciplinary Committee committed a gross irregularity in the proceedings against the applicant by making a finding of guilty and proceeding  to impose or record a penalty of dismissal, before allowing the applicant the opportunity to address it in mitigation.

The group Chief Executive Officer, being the Appeals Authority of the respondent grossly erred in upholding the above irregularities.

In response the respondent noted that the code specifically covers managerial

employees, that the composition of a disciplinary committee is provided in the code, that the chairperson of the disciplinary committee was not involved in the investigations, that the applicant was given an opportunity to mitigate and there was no prejudice that was occasioned by applicant as a result of the perceived procedural irregularities.

I will address the grounds for review in turn.

It was submitted for the appellant that the managerial employees were not part of the negotiations culminating in the registered code.  In terms of the Labour (Employment Codes of Conduct) Regulations, only two authorities the Employment Council and a Works Council can come up with binding codes.

Further it was argued through a document produced showing signatures of parties to the code,  that the code was negotiated and agreed at works council level.

In terms of section 25 A (2) as read with section 23 (1) of the Labour Act the parties were the employer representative and the non-managerial employees.

To the extent that the managerial employees were not represented, the code of conduct therefore did not bind managerial employees, like the applicant.  The doctrine of privity of contract, it was submitted would certainly preclude the use of the code on the applicant.   The court was referred to the case of Coalridge (Pvt) Ltd v Peter Makawu & Mobil Zimbabwe (Pvt) Ltd SC 69/04 on the principle of privity of contract.

The applicant therefore should have been charged in terms of the National Employment Code of Conduct, 2006 which provides for situations where there is no code of conduct.

For the respondent it was submitted that the code specifically provides that it shall be applicable to managerial employees.

Further it was argued that no evidence was placed before the court to show that the managerial employees were not involved in the negotiations culminating in the code.

I agree with the respondent’s reasoning.

Indeed the law provides that an Employment and a Works Council can come up with a code of conduct.  The law also provides who constitutes the members of those bodies.

However the law does not specifically prohibit a code of conduct to include managerial employees in its application.  What is of importance is that the managerial employees should be part of those negotiations.

This brings the relevance of evidence.  Applicant produced a declaration signed by the group Chief Executive Officer, the Human resources director, the National Workers Committee Chairman and the National Committee Secretary dated 25 July 2012.

This declaration is between respondent’s management and the workers committee on agreed changes to the respondent’s code of conduct.

Clearly this is evidence of changes and it was not shown what changes were effected.  One wonders, if through these changes the inclusion of managerial employees was made.    That evidence produced by the applicant is not conclusive that managerial employees were not part of the negotiations leading to the registration of the code.  It is irrelevant in the determination of the matter.

In any event management representatives were part of the negotiations.  They allowed and signed the code into existence covering management rights.  There was no objection.

The applicant’s objection of necessity required evidence to show that managerial employees were not part of the negotiations.

It is a settled principle of law that he who alleges must prove.  Butler and Finsen, arbitration in South Africa, Law and Practice.

Despite the provisions of the Act as to who can constitute the Works Council.  As stated before the Act does not take away the right of managerial employees to be part of the negotiations in the making of a code of conduct.

In the case of Madoda v Tanganda Tea Company Ltd 1999 (1) ZLR 374 (SC) the late SANDURA JA  accepted the evidence that managerial employees were represented on the Works Council formed for the registration of the code.

In that case the code was very clear that it would apply to all employees including managerial employees.

In the absence of clear evidence that the managerial employees were not represented at the negotiations, the applicant’s submissions are untenable.

The respondent’s code is very clear clause 1.7 provides

“This code will apply to all employees within the group, whether weekly or monthly paid and whether workers or managerial employees.”

There was no dispute as to the registration of the code.  The provisions of the code are therefore binding on the applicant and respondent ZTIC v Gwinyai SC 150/95.

In any event managerial employees are employees.  The code was to apply to all employees.  S2 of the Act defines a managerial employee as

“an employee who by virtue of his contract of employment or of his seniority in an organisation may be required to hire, … or adjudge the grievances of other employees.”

In Samuriwo v Zimbabwe United Passenger Company Ltd (2000) (1) ZLR 647 (SC) the court although dealing with a different issue accepted that a managing director though a primary organ of a company could be an employee.

The applicant would be covered by the code by virtue of being an employee.

The first ground for review is dismissed.  The respondent correctly proceeded in terms of the code.

The second ground for review challenges the composition of the disciplinary committee as provided for in the respondent’s code of conduct.

The applicant technically is challenging the appropriateness of this provision.  A code of conduct is an agreement between the parties.  As stated before managerial employees were party to the negotiations.  The parties agreed to establish a disciplinary committee for managerial employees in clause 5.2 which provides

“For managerial employees

Four management representatives, neither whom shall be the official who investigated the offence, all nominated by the SBU Head or the human resources director.  The chairman shall be the human resources manager of the Strategic Business Unit SBU or any other person with delegated authority to perform such duties and has no voting right…

Management reserves the right to veto the nominated employee’s representative particularly where a conflict of interest may exist  i.e. relative of the defendant, co accused or fellow manager who may have colluded with the defendant in the offence that resulted in a breached the code.”

A managerial employee shall have the right to be represented by a fellow managerial employee or by a registered legal practitioner.

Applicant objects to the power to veto the employee’s representative.  This is what parties agreed.  I associate myself with the sentiments of PATEL JA in Magodora & Others v  Care International Zimbabwe SC 24/14 at p 7

“In principle it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract they have freely and voluntarily accepted even if they are shown to be onerous or oppressive.”

In casu applicant opines that the prerogative to veto by management is oppressive.  The court cannot do anything about it.  The parties agreed to this.  This is only subject to further negotiations between the parties to amend the clause.  It is not for the court to amend the respondent’s code of conduct.  The court’s role is to enforce what the parties agreed on.

The second ground for review is therefore dismissed on that basis.

Bias

It was submitted for applicant that the disciplinary committee was chaired by one Dephine Ziswa who formulated charges and signed the notification for the hearing.  To that extent it was argued the chairperson was biased, she had a preconceived decision.

The respondent conceded that Ms Ziswa signed the notice of hearing, it was argued though that she was not involved in the investigations therefore there was no preconceived determination.

I agree with respondent.  The disciplinary committee was constituted by members who did not take part in the investigations.  It was not applicant’s case that Ms Ziswa was part of the investigations.  She only signed the notice of hearing.

Attempts were made for the applicant to demonstrate that the notice of hearing was authored after a consideration of evidence culminating in a proper charge being preferred.  It was also submitted that the applicant attended a meeting where Ms Ziswa was part of.  In that meeting he was given an option to resign or be fired.  That was evidence of the preconceived decision to dismiss applicant.

The code of conduct does not set out who should issue the notice of a hearing.  However it is clear that a person who is involved in the investigations should not be part of the Disciplinary Hearing.  In my view a person is more inclined to predetermination if involved in the investigations than simply notifying of a hearing.

The chairperson in terms of the code has no voting right.  To that extent such a one’s role is more of a facilitator for the parties to present their cases and the disciplinary committee to properly come to a decision.

The test whether there was bias is more than a suspicion.  Authorities are clear that it must be established that there is a real likelihood of bias, mere suspicion is not enough Bailey v Health Professionals Council of Zimbabwe 1993 (2) ZLR 17 (S).

Nothing was alleged by the applicant as indicating bias during the conduct of the disciplinary proceedings.

From the facts of the case I do not believe there was an irregularity.  In the case of Stanely Majurira v Tredcor (Pvt) Ltd SC 48/13 the person who chaired the disciplinary proceedings had considered the allegations against the appellant and the response.  Thereafter the chairperson convened and presided over the disciplinary hearing.  The judge of appeal found that there was nothing unprocedural to warrant any finding of a reviewable irregularity.  Similarly in this case what Ms Ziswa did in the whole process cannot amount to an irregularity that is prejudicial to the applicant.

The ground for review is therefore dismissed.

The third ground for review is that the disciplinary committee “the committee” erred by making a finding of guilty and imposing a penalty before the applicant addressed it in mitigation.

According to the applicant no penalty should be pronounced or imposed before mitigation reference was made to section 63 (4) (e) of the National Employment Code of Conduct, 2006.  Indeed this is the correct position of the law.

The facts of this case do not support applicant’s submissions.

The record of proceedings show that the committee discussed the issues in respect of the five charges that the applicant was facing.  For each charge the committee also deliberated on the penalty warranted by each offence.

Having done so the committee at page 8 of the disciplinary proceedings minutes noted.  “The committee stated that they would now therefore consider any factors in mitigation before issuing out a final decision.”

Thereafter the applicant was called in and asked to address the committee in mitigation.  He submitted his written mitigation.

The minutes actually show that the committee did not pay lip service to the mitigation.  There were discussions concluding that the mitigation was actually aggravating.  However the committee did not find anything compellingly mitigatory.

The unveiling of the process in my mind shows that the committee was alive to the fact that an address in mitigation was a requirement.  That is why it called for mitigation before a final decision was made.

The final decision was communicated in writing to the applicant.  I see nothing untoward about that.

Applicant argued that there was a mixed bag of irregularities evidenced by the penalty of dismissal for the charge of insubordination when the committee had issued a warning.  Nothing can be benefited from a stray pen.  The bottom line is that the committee found him guilty on all the five charges.

For two charges a penalty of dismissal was issued the rest were warnings.  Even if the technical director erred in the dismissal letter the applicant stood dismissed by virtue of the other two charges.  Nothing can turn on this argument.

Applicant’s prayer was that the decision by the respondent be set aside and he be reinstated without loss of salary and benefits.

It is a settled principle of law that not all procedural irregularities vitiate proceedings. Where procedural irregularities vitiate proceedings the remedy is usually to refer the matter for a hearing de novo to cure the irregularities.  In casu the alleged procedural irregularities do not vitiate the proceedings since they are non-existent.

The prayer is therefore misplaced see Stanley Majurira (case) supra and also Air Zimbabwe (Pvt) Ltd v Chiku Mensa & Another SC 89/04.

Nothing turns on the fifth ground of appeal as it is a bare statement.

From the foregoing clearly the application has no merit.  Accordingly the following order is made.

The application for review be and is hereby dismissed.

Each party to bear its costs.

Musengi & Sigauke, applicant’s legal practitioners

IEG Musimbe & Partners, respondent’s legal practitioners