Vincent Matiza v Rio Zim Renco Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MS/02/16
HARARE, 18 NOVEMBER 2015
CASE NO.
JUDGMENT NO. LC/MS/02/2016
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/MS/02/16

HARARE, 18 NOVEMBER 2015			      CASE NO. LC/MS/REV/06/15

AND 22 JANUARY, 2016						 LC/MS/31/15

In the matter between:-

VINCENT MATIZA				Applicant

And

RIO ZIM RENCO MINE			Respondent

Before The Honourable E. Muchawa, Judge

For Applicant	Mr Jerera Haruzivi (Trade Unionist)

For Respondent	Mr F. Mahere (Legal Practitioner)

MUCHAWA, J:

Before me, are two matters involving the same parties and based on the same facts.  Case number LC/MS/REV/06/15 is the application for review whilst LC/MS/31/15 is the appeal.  For the convenience of the court I have consolidated the judgments in these matters into one, whilst dealing with the application for review first and the appeal, thereafter.

Application For Review

This is an application for review.

The applicant was employed by the respondent as its statistics clerk in the mining department.

The respondent provides housing to some of its employees and seems not to have put any lease agreements in place for such housing.  Sometime in April 2015, the respondent drafted a “Standard Lease Agreement Between the Company and All Employees” which it expected all employees residing in its houses to sign.

Most employees are said to have duly signed the lease agreement and returned it to respondent.

The applicant is alleged to have refused to sign the lease agreement even upon several further individual engagements by the amenities supervisor and the human resources officer.  It is further alleged that the applicant put conditions to have the house renovated before he could sign the lease agreement.

At that time, the applicant was the incoming chairperson of the respondent’s workers committee.

Applicant was charged of wilful disobedience to a lawful order given by the respondent in terms of Part B, Section 4 (b) of the Collective Bargaining Agreement to the Mining Industry (Code of Conduct) of 165/1992.  He was put on suspension with full pay and benefits.

A disciplinary committee found the applicant guilty as charged and dismissed him from employment on 22 June 2015.  An appeal was then lodged with the designated authority who confirmed the verdict and penalty of the disciplinary committee on the 29th June 2015.

This application has been filed challenging the procedural propriety of the two hearings.

The grounds of review before me are;

The hearing was not properly constituted.

Proceedings at both hearings did not follow the prescribed procedures.

Predetermination of the hearing outcome.

No suspension letter was given to the appellant but was barred from reporting for work.

Charge confirmed by the Designated Authority as shown by the dismissal letter is different from that on the initial hearing.

No evidence was led to prove the charge.

The applicant’s representative, Mr Haruzivi abandoned a preliminary point raised in applicant’s heads of argument that the respondent had not filed and served its notice of response.

I will therefore go straight into the application grounds,

The hearing was not properly constituted.

The applicant’s trade union representative alleged that he was barred from attending the hearing at the appeal stage.

The respondent’s Mr Mahere referred me to the minutes of the appeal hearing.  They reflect that the applicant attended in the company of Mr Haruzivi Jerera (a trade union representative) and Mr B Shuro, a Workers Committee representative.

I was also referred to the Appeal notification hearing dated 25 June 2015 which reminded the applicant to arrange for his representation.

Upon cross examination of the applicant’s witness, Mr Shuro who had sworn to an affidavit attached to applicant’s heads of argument in which it is alleged that Mr H Jerera was denied access into the appeal hearing, it was clear, Mr Haruzivi Jerera was present at the hearing.  It was explained only that they did not finish the hearing with him.

The Code of Conduct sets out in Part D (3) (c) how the appeal committee should be constituted.  It provides as follows:

“the appeal shall be heard by the designated authority in the presence of the employee who may be accompanied by his representative(s)”

That provision, by using the word “may” in relation to the representative(s) means it is optional for the employee to have a representative.  The use of the word “representative(s) means one can have just one representative or more.

At all times, the applicant had a representative whilst initially having two such representatives. I therefore find that the appeals committee was properly constituted in this respect.

It is alleged by the applicant that the disciplinary hearing committee was also improperly constituted as there were two students on attachment under a graduate training programme in the human resources department who represented the respondent.  One such student is alleged to be one F Bere.

The respondent denied that there were any students on attachment included in the committees and further objected to the raising of this point for the first time now.

A perusal of the minutes of the disciplinary committee shows that F Bere attended the disciplinary hearing as an Human Resources representative.  The committee itself comprised of two worker representatives and two management representatives.  There was also the hearing official.  The alleged offender and the complainant completed the people available at the hearing.

I agree that the applicant should have raised the fact being raised now, first before the appeal committee particularly as it relates to a fact which could have been more easily resolved at the internal level, that is, whether F Bere was a student on attachment or not.  Further whether a student on attachment is the same as a graduate trainee.

I see no prejudice suffered by applicant as F Bere was not part of the committee but merely provided administrative support as a representative of the human resources department.

There is therefore no merit in ground 1 of review.

Proceedings at both hearings did not follow prescribed procedures and 4. No suspension letter was given to the appellant who was barred from reporting for work

The applicant alleges that Part D (1) (c) of the Code was not complied with as he was not laid off work with a suspension letter.  He denies ever having received the letter of the 2nd of June 2015 authored by the underground manager advising he was being laid off duty with effect from 2 June 2015 on full pay and benefits pending investigations.  That letter is not signed by the applicant.

The respondent’s position is that on the 5th June 2015, the applicant’s representatives were well aware of the charges against their client and they adequately represented him at the hearing and even sought postponements twice (see pages 30 and 33 of appeal record).

A reading of Part D (1) (c) does not necessarily talk of a letter of suspension but indicates instances when a supervisor will ensure that an offender is removed from the work place.  It then talks about laying off an employee.  This may include suspension on pay.

The offence with which the applicant was charged does not fall into the categories of the offences where lay off is mandatory (see Part D (1) (c) (i))

There does not seem to be any prejudice suffered by the alleged procedure followed.

I find no merit therefore in grounds 2 and 4 of the application.

Predetermination of the hearing outcome.

It was argued for the applicant that both committees did not get the time to deliberate before the final decision.

The respondent insists that the committees carried out their mandate and produced well reasoned rulings.

The designated authority in terms of the appeals procedure, is the person or persons designated by the company to hear the appeal.  The employee may be accompanied by his representatives but they are not part of the appeals committee (See Part D (3) (c)).  There was therefore no obligation for the designated authority to deliberate with the applicant’s representatives, on the determination reached.

The disciplinary committee minutes reflect that the offender and complainant were excused to enable deliberations on the matter and upon their return the verdict and penalty were passed.  The minutes also show the active participation of both the management and worker representatives.

I find no merit in ground of review 3.

Charge confirmed on appeal is different from that at the initial hearing

Applicant claims that he was initially charged of wilful disobedience to a lawful order.  The outcome of the appeal hearing however states;

“The charge of gross insubordination was therefore proved and your dismissal is hereby confirmed ...”

The charge of gross insubordination is alleged to be non existent in the Code and to be different from the initial charge.  This said to have the effect of nullifying the hearing.

The respondent alleged that the applicant was playing with semantics and that the designated authority on appeal simply confirmed the dismissal and did not change the charge.

The Oxford Advanced Learner’s Dictionary, 7th edition, defines insubordination as

“the refusal to obey orders or show respect for somebody who has higher rank.”

It is synonymous to disobedience.

In my opinion, there is no material difference between wilful disobedience to a lawful order given by the employer and gross insubordination.

There is consequently no merit in this ground.

No evidence was led to prove the charge

The applicant argued that there was no evidence led to prove the charge.

The respondent counter – argued that the charge was duly proved.

I find that the charge being one of wilful disobedience to a lawful order to sign a lease agreement was not really denied by the applicant.  The question of Workers Committee minutes not having produced and whether or not the other employees signed in person or through their spouses does not assist the applicant.

Once it is established that the order given was lawful and the applicant deliberately and intentionally failed to comply with it with an intention to hold authority at defiance, then the offence is proved (see Chironda v Swift Transport 1996 (1) ZLR 142.

I find no basis why the respondent would be subjected to the requirement to consult the employees regarding issuing out leases in respect to its own houses.

Accordingly, there is no merit in the entire application for review which I dismiss with costs.

The Appeal

The background facts to this appeal are similar to those set out above under the application for review.

The grounds of appeal are as follows;

The Designated Authority misdirected itself in finding the order given by the supervisor as lawful.

Violating employee’s right of representation.

Appellant was targeted as the chairman of the workers committee.

The Designated Authority misdirected himself in confirming conviction of appellant on the charge without sufficient evidence thereby failing to give due weight to the available facts and existing circumstances.

The designated authority misdirected himself in convicting the appellant for “gross disobedience” which is different from the charge at the initial hearing and is not even existing in the Code of Conduct.

At the hearing I upheld the respondent’s point in limine that ground 2 of appeal was improperly before me as it was raising a question relating to the procedure of the trial.  It was to be brought by way of an application for review and has already been dealt with.  I accordingly struck off ground 2 of appeal.

I now proceed to deal with grounds 1, 3, 4 and 5 in turn.

Ground 1 – Whether the order given by the supervisor was lawful?

It is the appellant’s case that the person who raised the complaint form was a supervisor.  This was said to be outside the provisions of the Code of Conduct.  The Code is said to be applicable to employees in grade 1 to 13 and management is said to start from grade 14 and these are not covered by the Statutory Instrument 152 of 1990 (the principal agreement).

In particular, reference was made to page 1057 of the Code of Conduct SI 165 of 1992 to show that the supervisor did not qualify to be an employer and so the instruction is alleged not to have been given by an employer.

The respondent referred me to pages 37 and 38 of the record which show that Mr Chiwa, the Amenities Supervisors approached the appellant on three occasions in a bid to get him to sign the lease agreement but he refused to do so.

Thereafter Mr Mudarikwa (the human resources officer for services) had a personal meeting with the appellant on the 28th May 2015 and 29th May 2015 and the appellant is alleged to however vowed not to sign the lease agreement despite explanations on the policy and its purpose.

It is further alleged that the appellant put a condition that the company should renovate the house first to his satisfaction before he could sign.

The offence which the appellant is alleged to have committed under Part B (4) (b) is wilful disobedience to a lawful order given by the employer.

The appellant’s employer is the respondent who is represented by various natural persons at different levels, it not being a natural person.  In this case the lawfully appointed officials of the employer were the amenities supervisor and the human resources officer for services.  I do not believe that anything turns on the grade of such officers and whether or not their grade is one which falls under and is covered by SI 152 of 1990.  It has not been disputed by the appellant that they were representing the respondent when they issued out the instruction that was disobeyed.  It was also conceded that they were persons in authority and the appellant was, in fact, under their authority.  That is the end of the matter.

I therefore find that the order given by the supervisor was lawful.

The appellant also challenges the lawfulness of the order given on the basis that the person who raised the complaint form was a supervisor.  This point is departing from questioning the lawfulness of the order given and is now questioning the method of trial.  That would belong to the application for review and I dismiss it as it does not assist the appellant in advancing ground of appeal.

Ground 3 – Was the appellant targeted as the chairman of the Workers’ Committee?

It is argued that the appellant who had just become chairman of the Workers Committee was called out of a training of the Workers Committee and chased out by a security officer without following the procedure of laying off.  I was pointed to the none signing of the letter of suspension as evidence of the procedure not having been followed.

Mr Haruzivi, for the appellant contended that the appellant was not the only one who did not sign the lease agreement as other employees had their spouses being forced to sign on their behalf.

The respondent’s Mr Mahere argued that the appellant disobeyed a lawful instruction and was disciplined for that and he dismissed the allegations of victimization as unfounded and unsubstantiated.  The charges are said to have been adequately proved and the fact of his being a member of the Workers Committee is said to be an aggravating factor.  (See Zimpack Pvt Ltd v Mugarabi SC 196/94 at pages 6 and 7).

The process of the signing of lease agreements is also alleged to have started well before the appellant became a member of the workers committee.

The appellant is alleging that he was unfairly singled out for punishment.

Firstly I wish to note that the appellant is not alleging that he was disciplined yet his spouse, like the others, had signed the lease agreement.  His circumstances are different as the legal lease agreement remained unsigned despite several attempts to get him to sign.

The appellant conceded before the designated authority that the respondent was within its rights to introduce lease agreements on the housing policy.  I note too that the process of such signing was not introduced after appellant became chairman of the workers committee.

I rely on the case of Lancashire Steel (Pvt) Ltd v Elijah Zvidzai and ORS SC 29/95, all the same, to find that it is not uncommon for an employer to single out ringleaders in any unlawful action for punishment.  If they are guilty, it is not in law relevant that others may also be guilty.

Rather, the appellant’s failure to lead by example is an aggravating factor.

I find that the alleged victimization is unfounded.

Ground 4 - Was there sufficient evidence led to prove the charge?

I already fully dealt with this same ground under the application for review’s ground 6.

I incorporate my reasons here and dismiss this ground of appeal as the appellant does not deny that he willfully disobeyed a lawful order to sign a lease agreement.  All he does is to explain why he did so.

The case of Zimbabwe Alloys Ltd v Muchohonyi 2006 (1) ZLR 390 (S) at 392 E – 393 C has stated that the existence of a moral excuse for such disobedience will not make the disobedience any less wilful or the order any less lawful.

Ground 5 – Was there a change in the charge at appeals stage?

Under ground 5 of the application for review I already found that there is no material difference between “wilful disobedience to a lawful order given by the employer” and “gross insubordination”.

I incorporate my reasoning from the application for review to conclude that there is no merit in this ground of appeal.

Accordingly the entire appeal has no merit and I dismiss it with costs.

Gill Godlonton & Gerrans, respondent’s legal practitioners