Wellington Makuvare v Zimbabwe Platinum Mines (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/54/2020
HARARE, 27 MAY 2019
CASE NO. LC/H/172/15
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/54/2020

HARARE, 27 MAY 2019		     	              CASE NO. LC/H/172/15

AND 24 JANUARY, 2020

In the matter between:-

WELLINGTON MAKUVARA							Appellant

AND

ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED			Respondent

Before The Honorable L. Hove, Judge:

For Appellant				K. Gama (Legal Practitioner)

For Respondent			A. K. Maguchu (Legal Practitioner)

HOVE J:

This matter was referred back to the Labour Court to enable the Court to consider an appropriate penalty.

The dispute between the parties arose when the appellant was charged by

the employer in April 2014. The matter was then brought before the Labour Court as an appeal against the employer’s decision to find the employee guilty and to dismiss him. The Labour Court struck the matter off the Roll in March of 2018. An appeal was noted to the Supreme Court which settled the question of whether or not the employee was guilty but referred the matter back to the Labour Court for it to consider the issue of the appropriate penalty.

The employee was employed by the employer as a boiler maker. He was charged for having breached section 3.6 of the code of conduct, viz

“negligence or responsibility for a wrongful act or omission that causes accidents, injury or death at work”.

Section 3.6 of the code relates to breaches relating to safety and health. The recommended or suggested penalties for a breach relating to safety and health depends on the seriousness of the breach. Section 4.4.1(f) of the code prescribes a first written warning for a minor breach. Section 4.5.1(e) of the said code prescribes a second written warning for serious breaches of the health and safety rules.

The employer is the one which decides which charges to impose in terms of its governing code of conduct. In casu it decided to prefer a charge which carries a recommended penalty of a first written warning and if the breach is a serious one, a second written warning.

The employer, in categorizing the issue of breach of health and safety rules in the code of conduct, did not think that it was such a serious breach so as to attract a penalty of a final written warning, let alone dismissal.

The governing code of conduct however, makes it clear that the categorized penalties are mere guidelines for what may be normally imposed and the circumstances of each case may warrant a more severe or less severe penalty from the prescribed penalty.

The hearing committee after considering the prescribed penalty and the circumstances of this particular case came to the view that there were aggravatory factors which included;

That the employee was aware of the requirement for a specific pre-task risk assessment.

That he was expected to lead the completion of the pre-task risk assessment as a supervisor and qualified trades-man.

He did not complete a pre-task risk assessment.

That he got seriously injured and could have been killed.

That being a supervisor, the employee was expected to uphold the safety standards and lead by example.

That as a result of his actions, serious injury was suffered by himself and he could have been killed.

That he is serving a final written warning given in December 2013.

No mitigatory factors were found and the employer in its discretion imposed the penalty of final written warning. The disciplinary committee exercised its discretion and although the appropriate penalty under the circumstances was a second written warning, they considered the seriousness of the breach, the aggravatory factors and the circumstances of the matter, and imposed a more severe penalty of final written warning.

The employee was aggrieved by the penalty which was accelerated from a final written warning to a dismissal on the basis that he was serving a final written warning which had been imposed in December 2013.

The appeal hearing set on the basis that the employee had noted an appeal.

They found no basis to change the findings of the Disciplinary Committee and upheld the penalty of dismissal. They made the following specific findings.

They found no basis for upholding grounds 1 and 2.

They noted that the appellant had erred and admitted that he had failed to do a specific risk assessment.

They noted that he had erred and admitted that the injury was as a result of his negligence.

Despite his length of service (seven years and eleven months). Appellant being a competent person displayed risk behavior and non-compliance with laid down company safety procedures.

Supervisors signed the risk assessment on the assumption that appellant would continue with the tasks that he had outlined. However, appellant later on went to do another task for which he was required to do according to safety procedures to complete a specific pre risk assessment.

Appellant has a poor disciplinary record as he is on a final written warning for reporting to work whilst under the influence of alcohol.

The offence of which the appellant was charged with was not considered by the employer as so serious an offence to warrant a dismissal. It imposed a final written warning because it considered the offence to have been a serious breach which warranted the imposition of a more severe penalty than the second written warning prescribed in terms of the code of conduct.

After deciding that a final written warning was appropriate, the hearing committee then considered that the appellant was serving a final written warning and accelerated the penalty to that of dismissal.

The employer party did not appeal against the decision of the disciplinary committee. The employee on the other hand is the one who noted an appeal. The appeals committee found that the employee was guilty and that there was no basis to change the verdict.

The appeal panel took into account the employee’s poor disciplinary record and the fact that he was serving a final written warning for being under the influence of alcohol. They also took into account the provisions of the code that in terms of section 4.6.2 of the code – the committing of any breach within the prescribed period renders an individual liable for dismissal.

This shows that they too, like the disciplinary committee before them considered that the final written warning was the appropriate penalty for the offence that the employee had committed even though the code prescribed a second written warning. They too, took into consideration the fact that he was sitting on a final written warning and in terms of section 4.6.2 of the code, the final warning rendered the employee liable for dismissal.

The question that then falls for determination is;

Did the disciplinary committee and the appeals panel correctly exercise its discretion when it took into account a final written warning that had been imposed in relation to reporting for duty under the influence of alcohol when the appellant had been found guilty of a breach of safety and health provisions.

The answer is that the appeal panel clearly misdirected itself as had the disciplinary committee before it. That this is so is beyond question as the Supreme Court in Standard Chartered Bank Zimbabwe Ltd v Richardson 2000 (1) ZLR 153 (SC) stated that it is absurd to dismiss an employee serving a final written warning for failing to put on protective clothing, if such employee subsequently misuses company stationary. The case of Standard Chartered Bank (supra) considered the issue of an employee who had been on a final written warning for an act of misconduct falling in one category of offences and then the employee commits another offence, during the currency of the written warning but which offence falls into a different class or category.

It is not disputed in casu that, the employee’s previous warning related to an offence of a different category (being reporting for work while under the influence of alcohol) He was found guilty of an offence which fell into a different category, that of a breach of health and safety provisions.

In the Standard Chartered Bank case (supra) the Court held that the phrase “any further offence” must be taken to mean “any further offence in the same category”. The Court held that a dismissal is a peremptory progression for the commission of an

offence in the category for which a previous final warning has been given, such other sanctions as suspension without pay or demotion may not be substituted. It would be a manifest absurdity to dismiss an employee who was under final warning for an offence of one class if he were subsequently held to have committed an offence of a different class.

That the decision of the appeals committee was a misdirection is beyond dispute in view of the above decision, that is the Standard Chartered Bank case (supra).

The previous final written warning ought not to have been taken into consideration, that means that the penalty of final written warning which was imposed, ought not to have been accelerated to a dismissal.

Having found thus, it becomes clear that the penalty of dismissal was a misdirection. The appeals panel’s decision to uphold the penalty of dismissal was wrong at law. The appeal must accordingly succeed.

The following order is therefore made:

Order

The appeal against penalty, is upheld with costs.

The decision of the appeals panel be and is hereby set aside and substituted with;

“The appellant is given a final written warning”.

Gama & Partners				- Appellant’s Legal Practitioners

Messrs Dube, Manikai & Hwacha -	Respondent’s Legal Practitioners