Unifreight Limited V Sithabile Hwengwere

### Preamble
Judgment No. SC 20/20
1
Civil Appeal SC 292/16
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REPORTABLE 	(18)

UNIFREIGHT     LIMITED

v

SITHABILE     HWENGWERE

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, GOWORA JA, & PATEL JA

HARARE: JULY 10, 2018

R. Mabwe, for the appellant

B. Sadovera, for the respondent

GWAUNZA DCJ

[1]	This is an appeal against the entire judgment of the Labour Court handed down on 21 November 2014. After hearing argument in this matter, the court dismissed the appeal and indicated that the reasons would follow. These are they.

FACTS

[2]	The respondent was employed by the appellant as an Auto Electrician. On 16 May 2012, there was a work stoppage at the appellant’s workplace. Following the work stoppage, on the 12 July 2012, the respondent was arraigned before the appellant’s Disciplinary Committee facing charges of disorderly behavior. The respondent also faced the charge of deliberately refusing to carry out an order in circumstances where ‘the offender was clearly being insubordinate’, in contravention of part iii s 3.3 ss 3.3.5 (iv) as read with part vii s 7.5 ss 7.5.1 of the appellant’s code of conduct.

[3]	In response to the first charge, the respondent averred that she did not participate in the work stoppage as she was away from work attending to personal matters with the permission of her superior. She further stated that by the time she got back to work at around 10 am, the stoppage was over. This was substantiated and confirmed by her witness during the disciplinary proceedings.

Regarding the second charge, the respondent admitted that she had received a letter from the Technical Director requesting her to submit a written individual report. She, however, stated that she thought the instruction did not apply to her since she had not participated in the work stoppage.

[4]	After deliberations, the respondent was acquitted on the charge of disorderly behavior by the Disciplinary Committee. In so far as the second charge was concerned, the Disciplinary Committee held that the respondent’s failure to obey the Technical Director’s instruction to submit a report was a clear case of insubordination. The respondent was found guilty of this charge and consequently, was dismissed from employment with effect from 12 July 2012.

[5]	Following the dismissal, the respondent noted an appeal in terms of the appellant’s code of conduct, to its Executive Director. In her grounds of appeal, she stated inter alia, that the termination of her employment was unfair and that the Disciplinary Committee was not properly constituted. The respondent further alleged that the code of conduct that was used by the appellant was inapplicable as it was registered neither with the National Employment Council for Transporting Operating Industry (“NECTOI”) nor the Ministry of Labour and Social Welfare. Further, that the Transport Operating Industry had a registered code, being S.I 67/2012, which she submitted superseded the appellant’s code of conduct.

[6]	Through a letter dated 9 August 2012, the Executive Director dismissed the respondent’s appeal and upheld her dismissal from employment. He stated that the appellant’s code of conduct was never suspended, deregistered nor was its registration ever cancelled. Therefore, that code was applicable and relevant.

[7]	Dissatisfied with the dismissal of her appeal, the respondent filed an application for review before, and also noted an appeal to, the court a quo. The application for review was premised on the grounds firstly that the decision to dismiss her was so grossly unreasonable in its defiance of logic that it ‘sends a sense of shock’. Secondly, and having regard to the effect of s 101 (1b) of the Labour Act [Chapter 28:01] which came into force in 2002, the code of conduct in terms of which she was charged and dismissed had been suspended and the appellant therefore had to secure the approval of its code of conduct before it could apply it.  Accordingly, she contended, any hearing conducted prior to the registration or approval of the appellant’s code of conduct had to be in terms of S.I 67/2012. In the premises, the respondent submitted, her dismissal in terms of an unregistered code of conduct was a nullity.

[8]	 On the merits, the respondent averred that as she did not take part in the work stoppage, nor was she at work on the day in question, the appellant in her view could not ask her to submit a report. Further, that there was no proof of service of the said request. She also stated that since it had been established that she was not at work at the time of the work stoppage, both the charges that had been levelled against her should have fallen away.

[9]	In response, the appellant submitted that the respondent was charged in terms of a duly registered code of conduct. On the merits it contended that, since the respondent’s conduct was a clear case of insubordination, it was entitled to dismiss her. The appellant asserted further that unless it was shown that there was gross misdirection, there was no basis upon which the court a quo could interfere with its exercise of discretion in dismissing the respondent. In the appellant’s view she had committed an act of misconduct that went to the root of her contract of employment.

[10]	The court a quo held that s 101 (1b) of the Labour Act specifically covered a situation where there already was in existence a workplace code of conduct and the employment council subsequently registers another code. For the workplace code to remain binding, it had to be approved by the employment council. The court held that the disciplinary proceedings commenced by the appellant were based on an invalid code of conduct as it was only approved after the commencement of the proceedings against the respondent. Having arrived at this conclusion, the court a quo took the view that it was not necessary to advert to the respondent’s other grounds of appeal and review. As a result, it set aside the respondent’s dismissal and ordered that she be reinstated to her previous position without loss of salary and benefits.

[11]	Aggrieved by this determination, the appellant noted an appeal to this Court on four grounds of appeal. However, at the hearing of the appeal, it abandoned grounds number 1, 2 and 3. It is noted that all these grounds attacked the court a quo’s finding that the appellant’s code of conduct, in terms of which the respondent was charged and dismissed, was invalid, and that this circumstance rendered the proceedings of the Disciplinary Committee, including the respondent’s dismissal, null and void. As already indicated, the validity or otherwise of the code of conduct in terms of which the appellant charged and dismissed the respondent was the sole basis upon which the court a quo determined the review and the appeal before it. It follows that the appellant, having abandoned the grounds of appeal relating to whether or not the court a quo was correct in its finding in this respect, was left with no other basis upon which it could seek an order vacating the judgment of the court a quo. This is notwithstanding the one ground of appeal that the appellant did not abandon, which reads as follows: -

“The court erred at law in setting aside the decision of the disciplinary committee when the respondent admitted to the charge she was convicted and dismissed of (sic).”

[12]	This ground of appeal delves into the merits of the appeal and the review that the respondent sought to bring before the court a quo. The court a quo clearly did not consider the merits of the matter. The ratio decidendi for its ruling was the finding that the code of conduct, upon which the appellant acted in charging and then dismissing the respondent, was at the time unregistered and could not validly be relied on. By nature, an appeal attacks specific findings of the lower court and the order that is premised upon such findings. It is accordingly not open to the appellant to seek to impugn the judgment of the court based on an issue that the court did not consider.

It was for the reasons outlined above that the court dismissed the appeal with costs.

GOWORA JA:	I agree

PATEL JA:		I agree

Matsikidze & Mucheche, appellant’s legal practitioners

Tadiwa & Associates, respondent’s legal practitioners.