Tinashe Wellington Mumbengegwi v Fidelity Printers & Refiners (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/257/2016
HARARE, 11 MARCH 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/257/2016

HARARE, 11 MARCH 2016			          	       CASE NO. LC/H/1024/15

AND 22 APRIL 2016

In the matter between:-

TINASHE WELLINGTON MUMBENGEGWI				Appellant

And

FIDELITY PRINTERS & REFINERS (PVT) LTD			Respondent

Before The Honourable F.C. Maxwell, J

For Appellant		Mr S Hashiti (Legal Practitioner)

For Respondent		Mr T Mpofu (Legal Practitioner)

MAXWELL, J:

At the hearing of this matter respondent raised two points in limine which are the subject of this judgment.

Appellant was employed by respondent as a Senior Finance Manager.  Following allegations of misconduct, a hearing was conducted resulting in appellant’s conviction and dismissal from employment.  Appellant did not attend the hearing.  An internal appeal did not alter the position.  Appellant thereafter approached the court on the following grounds.

3)	The appeals officer misdirected himself in finding.

That the record of proceedings was not doctored through deliberate omissions of relevant and pertinent transactions that took place during the hearing.

That appellant always wanted to avoid the hearing at all cost.

That evidence was led in support of all the allegations leveled against the appellant.

That appellant admitted committing acts of misconduct.

That there were reasons for decisions given by the disciplinary committee.

That the chairman and company representative was not biased and had no prior knowledge of the case at hand.

That the respondent had to breach the Code of Conduct by having a neutral person to conduct hearing.

That the penalty imposed was the most appropriate when the chairman had not explored other penal provisions.

Appellant elaborated on each ground stated above and also filed what he termed expanded grounds of appeal for the same purpose.  Appellant prayed for the setting aside of the decision of the tribunal (sic) and that he be reinstated to his previous position.  Appellant also prayed for an order of costs against respondent.

Respondent disputed each ground of appeal and prayed for the dismissal of the appeal with costs.  In heads of argument and oral submissions counsel for respondent raised three points in limine.  The first is that appellant has adopted a wrong procedure as he has mixed review and appeal issues.  The second is that having decided that he will not participate in proceedings, appellant has lost the right to challenge the proceedings.  The third is that Appellant conceded to doing wrong and therefore has no good defence.

First point in limine

Counsel for respondent submitted that appellant improperly conflated two procedures without seeking condonation.  He further submitted that appellant ought to have proceeded in terms of rule 15 (3) of SI 59/06 which allows a party to file an appeal together with an application for review.  There is merit in counsel’s submissions.  There are separate rules to govern appeal and review proceedings before this court.  Rule 15 of SI 59/06 governs appeal proceedings whilst review proceedings are governed by Rule 16.  It is trite that review proceedings are concerned with the manner in which a decision is taken and not its merit.  See Zimasco v Marikano SC 6/14. Section 92 EE of the Labour Act [Chapter 28:01] (as amended) provides the grounds upon which one can bring an application for review before this court.  An examination of the appellant’s grounds of appeal shows that most of them are grounds for review.

Counsel for respondent sought to argue that if a party adopts a wrong procedure, the Court can still hear the party as Labour matters should not be decided on technicalities.  He sought to place reliance on the case of Dalny Mine v Banda 199 (1) ZLR 20 for this submission.  It is true that it is undesirable for labour matters to be dealt with on technicalities.  However there are technicalities which cannot be rectified or put right as suggested in the Dalny Mine case.  Where procedures are statutorily provided for, you cannot overlook them and find recourse in that technicalities should not be the deciding factor.  This Court is a creature of statute and operates within the confines of what is stipulated in the statutes.  Statutory Instrument 59 of 2006 was promulgated to regulate proceedings in this Court.  As was stated in Forestry Commission v Moyo 1997 (1) ZLR 254, strong grounds have to be advanced to persuade the Court to act outside the rules of Court.  I am not persuaded that such grounds have been advanced in this case.

In any event as submitted for respondent, nothing precluded appellant from complying with Rule 15 (3).  He should have filed an appeal as well as an application for review.  Both matters could have been dealt with at the same time but the rules require that they be filed separately and distinctly.  I therefore find merit in the first point in limine.  The result of that finding is that all those grounds that are challenging procedural irregularities are improperly before me and are struck out.

Second point in limine

Counsel for respondent submitted that as appellant had not attended the proceedings sought to be impugned, he had lost the right to challenge those proceedings.  I did not follow any of Counsel for appellant’s argument contradicting this submission.  Once proceedings are dealt with in default of a party’s participation, the defaulting party must first deal with the issue of its non-participation.  In the case of David Moyo v Rural Electrification Agency SC 4/14 an appellant who had absented himself without leave from the hearing was held to have waived his right to challenge the conduct of the disciplinary proceedings.  In that case, the failure by the respondent to strictly comply with the regulations was held not to operate to vitiate The disciplinary proceedings.  See also Robert Dombodzvuku v CMED (PVT) Ltd SC 31/12.  Appellant therefore lost the right to challenge the disciplinary proceedings in which he did not participate.  I find merit in the second point in limine.

Third point in limine

Counsel for respondent submitted that appellant accepted that what he did was wrong but he was acting on superior orders.  Counsel further submitted that even if appellant was to be given an opportunity to prosecute his defence, all he would say would be that he was acting on orders, which defence is not acceptable as one is obliged to obey lawful instructions.  Appellant has not demonstrated that he has a good defence which he was not able to advance due to procedural irregularities.  For that reason it would be improper to set aside the proceedings.  See ZFC v Geza 1998 (1) ZLR 137.  I therefore find merit in the objection raised.

Having considered the points in limine, two grounds of appeal remain, ground (b) and (h).  In ground (b) appellant argues that the Appeals officer erred by confirming that he had always wanted to avoid the hearing when the fact that appellant was involved in an accident was ignored.  As argued for respondent, the issue of the accident was immaterial as appellant indicated that he had not come for the hearing.  On page 69 of the record he advised the Disciplinary Committee that he had come to negotiate an exit package.  The appellant’s ground of appeal therefore has no basis.

Ground of appeal (h) criticizes the chairman for not exploring other penal provisions.  It is trite that the issue of penalty is the discretion of the employer and an appeal court will not interfere with the exercise of discretion unless such exercise has been afflicted by a serious misdirection.  See Malimanji v CABS 2007 (2) ZLR 77.  It is also trite that once an employer has taken a serious view of the act of misconduct committed by the employee and dismissed the employee from employment, the question of penalty, less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.  See Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60/03.

In heads of argument, appellant accuses the disciplinary hearing and the appeals tribunal of paying a cursory glance at mitigation.  In paragraph 45 it is stated;

“Nothing is said about the extent or manner in which mitigation would serve to reduce the penalty imposed.  Nothing is said as to why other penalties could not be meted in place of dismissal. Nothing is said of the effect of appellant’s many years of service in the employment of the respondent.”

In my view appellant is complaining about the method of trial.  The remedy to address his concerns would be to remit the matter to the Appeals tribunal to correct the omission.  Such a remedy is available on review and it is improper for appellant to raise such issues on appeal.

In the final analysis the points raised in limine have merit and therefore succeed.  Accordingly the following order is appropriate,

The points in limine be and are hereby upheld.

The appeal be and is hereby dismissed with costs.

Mutuso, Taruvinga & Mhiribidi, appellant’s legal practitioners

Coghlan, Welsh & Guest, respondent’s legal practitioners