Wilbert Chipunza v Servcor (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/59/13
HELD AT HARARE ON 14 FEBRUARY 2013
CASE NO.
JUDGMENT LC/H/59/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT LC/H/59/13

HELD AT HARARE ON 14 FEBRUARY 2013		CASE NO. LC/H/305/12

In the matter between:

WILBERT CHIPUNZA							Appellant

And

SERVCOR (PRIVATE) LIMITED						Respondent

Before the Honourable President, E.F. Ndewere

For Appellant				Mr M. Magodi (Trade Unionist)

For Respondent				Mr W. Magaya (Legal Practitioner)

NDEWERE E.F.

On 1 July, 2011, the Appellant was observed by C. Mudyiwa and K. Chimbangu coming from the Traditional Canteen, holding a parcel wrapped with uniforms.  Mr Mudyiwa told K. Chimbangu his Supervisor to follow him to the changing room.  When Chimbangu got to the changing room, he observed that the parcel which the Appellant had been holding were 2x2kg packets of sugar.  The Appellant was asked where he got the sugar from by Mr Mudyiwa and he said he took it from the Traditional Canteen.

On 6 July, 2011 management suspended the Appellant without pay and benefits pending a disciplinary hearing and advised him that he was being charged with theft in terms of the Code of Conduct for stealing the sugar which he was found in possession of in the locker room.

Thereafter, Management attempted to convene a disciplinary hearing for the Appellant, but could not do so because the workers refused to participate in the hearing; citing previous problems with management.  They refused to nominate worker representatives to the disciplinary Committee.  Management then referred the case to the senior designated agent to deal with the matter in terms of Section 101 (6) of the Labour Act since the employer’s efforts to attend to the disciplinary issue within 30days had been thwarted by the workers’ attitude.  The Senior Designated Agent’s award on the referral by Management was as follows;

“May parties proceed to discipline Wilfred as outlined in the Code of Conduct for Servcor.  Meanwhile, Wilfred remains an employee of Servcor with full status until provisions of the Code have been observed.”

Management went back to the workplace, tried to convene a Disciplinary hearing in terms of the award; but the Workers’ Committee still refused to co-operate, this time arguing that management must reinstate Wilfred’s pay and benefits because that was their understanding of the award whilst Management’s understanding was that the employee remained an employee until his services were lawfully terminated in terms of the Code of Conduct.

Thereafter, management invited employees from its other branches outside Harare to come and take up the positions of employee representatives on the Disciplinary Committee for progress’s sake.  On 3 April, 2012, the reconstituted Disciplinary Committee finally sat to hear the matter.  The Appellant and his Union representatives were there.  They challenged the proceedings and said no hearing could take place until Appellant’s benefits were paid from the date of suspension in terms of the award by Honourable Mandeya of 26 January, 2012.  Management maintained its position that the award never required the lifting of the suspension.  Thereafter, Appellant and his representatives said they would attend the hearing just as observers and they would not participate.  The charge was put, the Appellant did not plead.  The Management representative gave its outline of the case.  The Appellant and his representatives refused to give theirs.  A witness was called; Appellant and his representatives refused to cross-examine.

However, the Appellant’s representatives agreed to give closing submissions which were a reiteration of their earlier submission that there should be no hearing until Appellant’s suspension was lifted.  The committee deliberated on the case and found the Appellant guilty of theft.  The Appellant and his representatives were given the opportunity to mitigate.  They reiterated their earlier submission that the hearing should not have occurred before suspension was lifted.  The committee deliberated on the penalty and decided to dismiss the Appellant.  Appellant appealed to the Servcor Appeals Board and his appeal was dismissed.  He has now appealed to the Labour Court.

The Appellant’s grounds of appeal were not clearly written 0but he seems to be submitting that;

the Respondent did not comply with the provisions of the Code of Conduct and the provisions of natural justice by not giving the appellant the right to be heard.

the Respondent did not comply with the Arbitrator’s ruling that Appellant must remain an employee of Servcor with full status until the provisions of the Code were observed.

The Court has considered the background of this case.  It is clear that the Workers’ Committee and the Union did their best to frustrate the company’s efforts to discipline an employee who clearly had a prima facie case of theft against him.  This was wrong.  The workers should not have mixed up their other grievances with management with the case on hand.  In Dalny Mine vs Banda 1999 (1) ZLR 220, the Court emphasized the undesirability of deciding labour matters on the basis of procedural irregularities but on the merits.  The workers’ representatives for Servcor are enjoined to take a leaf from the Dalny Mine case.  Another case in point is Air Zimbabwe vs Chiku Mnensa SC 89-04, where the Chief Justice said an accused employee should escape the consequences of his conduct because he is innocent not because of some irregular conduct by another employee.  The Appellant’s and the Union’s emphasis should have been on the innocence of the Appellant; not on the technicalities of the worker representatives of a hearing committee.

Despite this background an analysis of the case shows that the audi alteram partem rule was followed.  Appellant was given an opportunity to be heard, but he chose to remain silent.  The Union tried to give the Appellant’s defence during the appeal hearing; but it had already denied itself the opportunity to cross examine the key witnesses who were called at the disciplinary hearing; and the opportunity to call their own witnesses.  Consequently, management’s evidence of theft at the hearing was not challenged and must therefore be accepted as a correct version of what transpired; resulting in the guilty verdict.  The Code was followed because workers ‘representatives were present on the Committee and it is important to note that the Servcor Code does not specify which workers should be appointed to the Disciplinary Committee so any worker qualifies.  In the Court’s view, the Respondent did the best it could “under the circumstances to ensure that the Appellant had a fair hearing”.  Duly Holdings vs Chanaiwa SC/17/07.

The other issue raised by the Appellant is that following the award by Honourable Mandeya on 26 January, 2012, the Respondent should have lifted his suspension and reinstated all his benefits before proceeding to discipline him.  That interpretation of the award is wrong.  The award simply meant that the Appellant was to remain an employee of Servcor until the Code was complied with.  In his address during the appeal hearing; Appellant’s representative conceded that the suspension itself had been in terms of the Code and was therefore lawful.  There was no suggestion that the Appellant was improperly suspended.  So since the suspension was lawful and the Arbitrator never delved into the suspension issue, the Arbitrator had no legal basis to interfere with the suspension and indeed he did not.  He simply warned the Respondent not to proceed to terminate services outside the provisions of the Code of Conduct.  For the avoidance of doubt, even in cases where the Court sets aside a decision on some technical irregularity, that does not mean an employee who was on suspension have their suspension automatically lifted.  Suspended employees remain suspended until due disciplinary process is finalized; unless if the suspension itself is unlawful.  In Air Zimbabwe vs Chiku Mnensa and Another. [supra], the Court ruled that an employee who is on suspension reverts back to the suspension if his disciplinary case is remitted to the employer for a fresh hearing in a procedurally correct manner.

Accordingly, this Court has no basis to interfere with the verdict and penalty of the Disciplinary Committee.  The appeal is dismissed, with each party paying its own costs.

E.F. NDEWERE

PRESIDENT

COGHLAN, WELSH AND GUEST LEGAL FIRM – RESPONDENT’S LEGAL PRACTITIONERS