TIKO Chandigere V Cargo Carriers International Hauliers (Pvt) LTD

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/27/22
HARARE, 01 FEBRUARY, 2022
CASE NO.
JUDGMENT NO. LC/H/27/22
CASE NO. LC/H/397/21
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IN THE LABOUR COURT OF ZIMBABWE           JUDGMENT NO.LC/H/27/22

HARARE, 01 FEBRUARY, 2022                           CASE NO. LC/H/397/21

AND 11 FEBRUARY, 2022

TIKO CHANDIGERE						         Applicant

CARGO CARRIERS INTERNATIONAL HAULIERS         	         Respondent

(PVT) LTD

Before the Honourable G. Musariri, Judge;

For Applicant		:Mr C. Chigwada (Unionist)

For Respondent		:Ms N. Zhou ( Attorney)

MUSARIRI, J:

Applicant filed an application in this Court for the review of his dismissal from employment by Respondent.  The Respondent opposed the application.  The two (2) grounds for review were worded rather in elegantly.  The relevant parts of the grounds declaimed as follows,

“1.	Cementing the fact that the charge of gross negligence in this case is a serious misdirection on Respondent’s part, failing to meet the expected standards/set targets which are calculated on a kilometre per litre basis will never culminate to Gross Negligence by definition, in some instances present what Respondent term diesel short may only or invite call for a charge such as incompetence as appropriate charge/ offence; ………

Yet in this matter Respondent preferred on inappropriate charge of Gross Negligence for conspicuous reasons that it carried a severe penalty, such as dismissal.  Totally disregarding the nature of the matter at hand.

2.	Respondent stands in serious gross procedural irregularity by his actions of referring matter to the director for breaking of the said Dead Lock, _ _ _

It should be noted that in terms of the appropriate and relevant S.l. 26 of 2017, sixth schedule there exist No provision of redressing/ treating ‘deadlocks’ at all, _ _ _”

Per contra Respondent in its Response averred that

“5.	….The Respondent had determined the correct charge of gross negligence and the Applicant was correctly charged with this offence.  The Applicant has no legal or factual basis to determine the charge, as the charge is determined by the Employer and not the Employee.  In addition, the determination of the Charge most certainly cannot be a ground for Review …….

b.	…… It is reiterated that the deadlock that occurred at the Disciplinary Committee Hearing was properly and correctly referred to the CEO in terms of the clear provisions of the Code of Conduct.  Since it has established that the deadlock was referred to the CEO in terms of the Code of Conduct, there can be no question of the purported and alleged gross irregularity. ......“

The 1st ground for review refers.  Applicant argued that the charge of misconduct was laid as gross negligence instead of incompetence.  The relevant Code of Conduct was produced during oral arguments.  Clause C.2.5 empowers the employer to notify the employee of “ the particulars of the alleged offence.”  In other words the Code allows the employer to lay the charge/s of misconduct.  In any event it is trite law that the employer has the right to choose which charges to prefer.  In this case the employer preferred the charge of gross negligence.  The offence is provided in paragraph 2.3.1 of Annexture 2 to the Code of Conduct.  It therefore follows that the 1st ground for review lacks merit.

Apropos the 2nd ground for review the relevant provision is Clause E.7 of the Code which reads

“in the event of  a deadlock by the Disciplinary Committee it shall forward a copy of the signal record of proceedings to the Chief Executive for a final decision …. Where the Chief Executive Officer makes a decision because of a deadlock, any appeal lies directly to the Labour Court.”

In the present case there was a deadlock which was referred to the Director of Respondent.  The Code defines a Chief Executive to include “Management Director, Partner or Proprietor.”   The Director made a final decision which Applicant sought to be reviewed.  The referral to the Director was compliant with Clause E.7 of the Code.  Therefore the 2nd ground for review also lacks merit.

The Code of Conduct referred to above was registered by the Registrar of Labour on the 26th November 2022.  Apparently Applicant relied on the Code embodied in the Statutory Instrument 26 of 2017.  Clearly Applicant was misguided in basing his application on a Code that has been replaced by the current one.  Having found no merit in the both of his grounds for review his application stands to be dismissed.

WHEREFORE IT IS ORERED THAT:

1.	The application for review be and is hereby dismissed; and

2.	Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E