Tendai Migeri v Truworths Group of Companies

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/771/16
HELD AT HARARE 28 SEPTEMBER 2016
CASE NO
JUDGMENT NO LC/H/771/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/771/16

HELD AT HARARE 28 SEPTEMBER 2016		CASE NO LC/H/APP/685/16

& 2 DECEMBER 2016

In the matter between:

TENDAI MIGERI					Applicant

And

TRUWORTHS GROUP OF COMPANIES		Respondent

Before The Honourable Muchawa, J

For Applicant		In person

For Respondent		F Mahere (Legal Practitioner)

MUCHAWA J:

This is an application for rescission of judgment.

The applicant is a former employee of the respondent who was a branch manager.  He was dismissed from employment on a charge of violating one’s contract of employment with serious consequences to the company or other employees.  The facts supporting the charge were that he had not reported 15 underbanks amounting to $309.35 to the area manager as set out in the procedures leading to a financial prejudice to the company.

An internal appeal confirmed the guilty verdict and dismissal penalty.

In terms of the relevant Code of Conduct, an appeal was lodged in this court.  It was set down for hearing on 2 June 2016.  By consent the matter was postponed from 2 June to 10 June 2016 to enable the parties to attend to ensuring a complete record was before the court.

On 10 June 2016, the applicant was in default at the set down time of 11.30 hrs and the court dismissed the appeal.  It is this order of the court that is sought to be rescinded.

The factors which are taken into account in deciding whether a default judgment should be rescinded are set out in Stockil v Griffiths 1992 (1) ZLR 172 (SC).  They are;

the reasonableness of the applicant’s explanation for the default.

the bona fides of the of the application to rescind the judgment; and

the bona fides of the defence on the merits of the case and whether the defence carries some prospects of success.

I turn to apply the law to the facts of this matter.

Explanation for the default

In his founding affidavit, the applicant avers that he had travelled to South Africa for medical attention relating to road traffic injuries.  He claims to have arrived from South Africa a few hours before the hearing time and to have missed the court hearing by 20 minutes.  The applicant claims to have sent a whatsapp message to Mrs Ruredzo, the respondent’s human resources manager at a minute before the hearing time.  The applicant who uses crutches due to his leg injuries claims to have been inhibited in catching the start time of the hearing due to this handicap which slows his movement.

During the hearing the applicant produced his passport as proof of his having travelled to South Africa.  The passport was date stamped 7 June 2016 at the border.  He claims to have been hitch hiking and to have left Beitbridge Border post on 8 June and to have been held up at the Zimbabwe Revenue Authority yard till around 5 pm on 9 June 2016 and that he only made it to Harare at around 3 am on 10 June and to his home much later when there was light and public transport.

It was submitted by Mr Mahere for the respondent that the applicant’s reason for non-attendance at the hearing at the agreed time is not supported by any evidence as the date of 10 June at 11.30 am was agreed between the parties.  The attendance some 20 minutes later is said to be a default as the court cannot be expected to wait for a party.

The message allegedly sent on whatsapp to Mrs Ruredzo at or about the time of commencement of the hearing is said to be inconsequential as the court could still not be asked to wait for a litigant.  It is denied that this message was seen anyway.

I find the explanation given by the applicant, that even though he was authorised at the border to enter Zimbabwe on 7 June, he only arrived in Harare in the early hours of 10 June, incredulous.  Given the multiple complications explained in the hearing as having caused the delay, one would expect the applicant to have contacted the respondent to alert the representative to this instead of sending a message on whatsapp, just a minute before the start of the hearing.

Prospects of success

In his founding affidavit, the applicant does no more than allege that he has very high prospects of success on the merits.

It was only in the hearing that the applicant submitted on the reasons why he believes he has good prospects of success.

The grounds of appeal in the appeal are;

The appeals authority erred at law in failing to hold that I was not given a fair hearing.

The appeals authority erred at law in failing to hold that I was wrongly charged.

The appeals officer erred at law in failing to hold that the offence I committed does not warrant dismissal in terms of the applicable code of conduct.

The applicant avers that the respondent should not have opted for a group D charge

when there are other charges with lesser penalties such as failure to follow laid down procedures or to do work to the required standard and thereafter covering up or concealing it.  Another charge which it was argued could have been appropriate is failure to follow normal work procedures or company policies.  These other charges fall in group B moderate offences.

It was also averred that the offence committed, if it had been appropriately

charged would not have warranted a dismissal penalty.

The applicant took issue with the minutes of the hearing as not being a true reflection of what transpired at the hearing despite having been so confirmed by the members present.

It is also alleged by the applicant that the chairperson of the disciplinary committee was biased and he ignored that the applicant had notified departments such as the accounts, about the shortfalls.  It is claimed that the appeal hearing committee chairperson failed to avail the correct record of proceedings, inter alia.

Mr Mahere for the respondent argues that the application should stand or fall on the founding affidavit per Austerlands (Pvt) Ltd v Trade & Investments Bank & Ors 2006 (1) ZLR 372 (S) at 377 G – 378 A.  In casu the applicant is said not to have made a case showing his prospects of success in the founding affidavit and the application is alleged to be woefully inadequate in their respect.

It was further submitted that the applicant was correctly charged with a group D  most serious offence of violating one’s contract of employment with serious consequences to the company or other employees.

It is averred that the applicant, a senior employee signed a performance contract and policy of administration training which clearly spelt out the procedures to be followed in cases of underbanks.  Despite having a total of 15 shortfalls or underbanks amounting to $309.35 the applicant is alleged not to have adhered to the requirement of reporting this to the area manager.  Due to his senior position as branch manager, the applicant was expected to work diligently and with utmost good faith and a failure to do so is explained to be a most serious offence.

The allegation of having been given an unfair hearing was dismissed by respondent.  It was submitted that the signing of the minutes by the members signified that they confirmed the minutes as a correct record and that allegations of victimisation of such members is unsubstantiated.

As to the allegation of bias, it was argued that there is always an element of institutional bias in labour matters as observed in Musariria v Anglo American Corporation 2005 (2) ZLR 267 (S) at p 270 G – 271 A.

The applicant’s appeal is alleged to be hopeless because he admitted to the misconduct.  I was referred to page 64 of the appeal record LC/H/91/16.  It contains an inquiry form dated 11 June 2015.  It is duly signed by the applicant and it lists two alleged offences.  The first is the group D offence in issue in this case relating to underbanks.  The second is a Group B offence of a failure to exercise proper care and regard in the discharge of one’s duty.  The applicant ticked in the box that shows he admitted to the alleged offence and he endorsed “I will not do this again” after ticking that he was aware of the rule he breached.

On pages 58, 76 and 77 of the appeal record during the disciplinary hearing and the inquiry the applicant admits to being responsible for the shortages and he offers to pay for them and then resign after so paying.

It is argued that the dismissal penalty was appropriate in the circumstances.

I agree that the applicant has failed to demonstrate his prospect of success in his founding affidavit.  I however still wish to explore these as submitted in the hearing.

It is not up to an employee to elect the charge to be proferred against him.  That is the prerogative of the employer.  Once the employer takes a serious view of the act of misconduct and prefers a more serious charge, all the employee can do is to challenge that the proferred charge has not been proved on the facts presented.

As to the procedural complaints raised, in the light of the admissions made, I can do no more that quote from the case of Tendai Mswenya v Standard Chartered Bank SC 80/04 wherein GWAUNZA JA states

“--- Nor was it relevant, after the appellant’s admission of the offence, whether or not the procedure he referred to was followed.  As already indicated, what was relevant was the commission of the offence in the circumstances outlined.  The procedures referred to, even had they been followed, would not have negated the commission of the offence in question.”

As to the penalty of dismissal the Supreme Court has clearly stated that that is an exercise of discretion which should not be lightly interfered with unless it is shown that such discretion was exercised unreasonably Mashonaland Turf Club v Mutangadura SC 5/12.

It appears to me that the respondent took a serious view of the misconduct, that 15 underbanks amounting to $309.35 had not been reported as expected over a period of three months by a person holding the senior position of branch manager.

In a case where the employer takes a serious view of the act of misconduct to the extent that it considers it to be a repudiation of contract which it accepts by dismissing the employee, a question of a penalty less severe than dismissal being available, does not arise Circle Cement (Pvt) Ltd v Chipo Nyawasha 560-03 at p 5.

It is my considered opinion therefore, that the applicant has not prospects of success in the main matter.  Even if I had given him the benefit of doubt as to his reason for default, this application fails on this basis.

Accordingly the application for rescission of judgment is dismissed for lack of merit.

Gill, Godlonton & Gerrans, respondent’s legal practitioners