Assani Chiganga v Promo Truck

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/743/2014
HARARE, 21 OCTOBER 2014
CASE NO 743/2014
---------




IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO LC/H/743/2014

HARARE, 21 OCTOBER 2014 &		   CASE NO LC/REV/H/127/2012

7 NOVEMBER 2014

In the matter between

ASSANI CHIGANGA							APPLICANT

Versus

PROMO TRUCK								RESPONDENT

Before The Honourable B T Chivizhe	:	Judge

For the Applicant		T Jerera  (Trade unionist)

For the Respondent	F Shava (Operations Manager)

CHIVIZHE J:

This is a review application against the determination by the Respondent handed down on the 28th of September, 2012 terminating the Appellants contract of employment with immediate effect. The application is opposed.

Background

The Applicant was employed by the Respondent as a Loader Grade A1 from the 3rd of October, 2011. On the 24th of August, 2012 he was alleged to have driven one of Respondents truck on the premises and then crushed it into a stationary trailer. He was charged with ‘wilful and unlawful destruction of the employers property’. The Applicant was twice served with notices to attend disciplinary hearing i.e on the 31st of August 2012 and 25th of September 2012. The hearing on the 31st of August 2012 was postponed due to an improperly constituted disciplinary panel. The hearing on the 25th of September 2012 was according to the Applicant again aborted on the basis of other irregularities. The Respondent however disputed this insisting there was a hearing. The Respondent produced minutes of hearing whose authenticity was again challenged by the Appellant. On the 28th of September, 2012 the Respondent Managing Director wrote a letter to the Applicant advising him of the termination of his contract of employment with immediate effect from that date. The Applicant was aggrieved and noted the present application.

Grounds for Review

The Applicant being a self-actor has not filed founding affidavit in support of his application. However his grounds of review as outlined in form LC 4 are stated as follows:

“Respondent violates Statutory Instrument 67 of 2012 and grossly violates ethics of natural justice.”

Through a filing on the 5th of December, 2013 the Applicant supplemented his grounds of review as follows:

“GROUNDS

The respondent violated S I 67 of 2012 by dismissing the applicant without according him a hearing as provided for in terms of section 8, S I 67 of 2012.

The respondent failed to appreciate that the delay in disposing of this matter was at its instance as it did not have a properly constituted disciplinary committee as provided for in terms of section A 8 of S I 67 of 2012. Which the disciplinary committee was finally set it did not set down the matter for hearing as per the initial arrangement as the termination letter was unleashed by the Managing Director prior to proper hearing.

Under circumstances mentioned in point 2 above, the applicant was prejudiced at both legal and Natural Justice as provided for in terms of S I 67 of 2012.

It is thus stands that the respondent unfairly and unlawfully terminated the applicant’s employment without proper consideration of circumstances surrounding the alleged misconduct.

Please note that records of proceedings filed of record never determined over the alleged misconduct but an arrangement to establish a proper disciplinary committee.

It is therefore submitted that the applicant was never tried in respect of the alleged misconduct as alleged by the respondent.”

The Respondent in response contended that:

The application does not disclose any procedural irregularities.

Record of proceedings clearly shows that all requirements of the code were followed.

Record of proceedings clearly shows that concerns raised by Applicant at the hearing were addressed before the hearing.

Findings

The court is required in a review application to determine whether proper procedures were followed. The Applicant has raised three main issues why he believes disciplinary proceedings were not properly conducted. The first issue is the Applicant submits that the Respondent dismissed him in the absence of a disciplinary hearing as contemplated under the relevant Code of Conduct. The second issue which the Applicant raised through oral submissions is that the Respondent levelled an improper charge. The last issue also raised through oral submissions is that the Applicant was denied his right of appeal under the relevant Code of Conduct in that the Managing Director (who is the Appeals Authority under the Code) is the one who handed down the determination letter in place of the Disciplinary Committee thus by doing denying him his right to appeal under the Code. I shall proceed to address the issues as presented.

The Code of Conduct governing the parties is the Collective Barging Agreement, Transport Operating Industry Statutory Instrument 67 of 2012 (“the Code”). The sixth schedule under Part A through to H provides for procedures to be followed in disciplinary matters. In terms of Part B an offender employee must, after an investigation by the employer, be arraigned before a Disciplinary Committee. The Disciplinary Committee under Part A8 must be composed of four members i.e two appointed by management, two shall be selected by the workers committee or by the Union where there is no workers committee, the chairperson shall be the Human Resources Representative and shall have no voting rights.

It is clear from submissions before the court that the disciplinary proceedings were postponed in order to regularise composition of the Disciplinary Committee as there were no employee representative on the Disciplinary Committee. Both parties agree that elections were then conducted on 11 September 2012 to appoint the employee representatives. The employee was then notified of the hearing on the 25th of September, 2012. There is a dispute between the parties as to what transpired on the 25th of September 2012. The Applicant alleges there was no hearing as the Applicant had again objected to presence of a Mr Phiri, a Consultant, where clearly the Code of Conduct does not provide for the presence of a Consultant. According to the Applicant the matter was again postponed on that date. The Applicant denies receiving the purported minutes produced by the Respondent and challenges their authenticity.

The Respondent on the other hand submits that there was a hearing on that date and such hearing followed all the procedures as laid in the Code. The disciplinary Committee was properly composed. It sat and after receiving evidence concluded that the Applicant was guilty on the charges. The disciplinary Committee then handed down a dismissal penalty which was the most appropriate penalty in the circumstances of the case.

It is clear from a perusal of the Code of Conduct that it is envisages that a disciplinary hearing would precede an employee’s dismissal from employment. The crucial issue therefore is whether there was a hearing in this case given the dispute between the parties. I am satisfied upon perusal of the evidence in the record that there was no disciplinary hearing conducted in this matter. This is clear upon an examination of the following. Firstly the purported minutes of the 25th September 2012 did not form part of the original record. The Respondent in its notice of response did not allude to the fact that there had been a hearing and to the existence of the disciplinary proceedings minutes. The minutes were only introduced into the record, without the court’s leave, as an attachment to the Respondent’s Heads of Argument clearly suggesting that the Respondent was building its case as it went. Assuming I am wrong however in reaching this conclusion the termination letter by the Managing Director dated 28th September 2012 clearly makes no reference to a disciplinary hearing having been conducted before the Disciplinary Committee. The letter also does not make a summary of the agreed or established facts leading to the determination (which in any event is a requirement of Clause C 10 under the Code of Conduct). The termination letter is not authored by the Chairperson of the Disciplinary Committee; the letter instead is authored by the Managing Director in his individual capacity. Paragraph 2 and 3 of the letter reads:

“In arriving at this decision, due consideration has been taken into the fact that, much as you were given an opportunity in terms of the Code of Conduct for the Transport Operating Industry to defend yourself, you chose not to.”

It is clear from his letter the Managing Director was, contrary to the Respondent’s submission that he was writing in the acting capacity of Chairperson of the Disciplinary Committee writing in his capacity as the Appeal Authority. The facts however show the Applicant had not at that stage exercised his right to appeal. This point however is canvassed below. On the basis of the foregoing I am fully persuaded therefore that the Applicant was unfairly dismissed in the absence of a proper disciplinary hearing.

In the event that I am wrong in reaching this conclusion the court would still have reached the same conclusion of an unfair dismissal on the basis that the Respondent levelled an improper charge. The Respondent submitted that the Applicant was charged with ‘wilful and unlawful destruction of the employer’s property’. When challenged on that aspect the Respondent Representative in the alternative submitted the Applicant was charged with breach of Clause 4.4.1 of the Code of Conduct. This according to the Respondent could be gleaned from the invitation letter to attend disciplinary hearing dated 19th September 2012.

It is clear from a perusal of the record that the first invitation to the hearing makes no reference to any specific charge. Firstly it is a fundamental principle in Labour Law that the employee be advised in time of the particular charges he is going to face. Secondly there is no offence created under the Code of Conduct referred to as ‘wilful and unlawful destruction of employer’s property’ as referred in the Respondent third letter of invitation. Whilst it is clear that the purported charge was derived from the title of Section 4 under Annexure 2 Action Code that however is not a competent charge. It denotes the title of group of acts of misconduct that are subsumed under it. There is also no offence created under Clause 4.4.1 which was suggested in the alternative by the Respondent. Clause 4.4.1 denotes one of the two subtitles under the title ‘wilful and unlawful destruction of employer’s property.’ The first group is ‘abuse of company vehicles’. The second group is ‘abuse of company property’ under clause 4.4.2. It is clear that these are subtitles because there is no indication of the varying penalties under both subtitles as is the case in the next column which creates proper charges. Clearly the Respondent levelled an improper charge and thus breached provisions of the Code by failing to level appropriate charge.

The last issue is that the Applicant was clearly denied his right to appeal as enshrined under the Code of Conduct. The Code provides for the right to appeal from a Disciplinary Committee decision to the Chief Executive and then finally to the Labour Court. As indicated supra the Applicant failed to exercise this right in the absence of any disciplinary hearing and the relevant minutes. Secondly the Managing Director by handing down a determination on the 28th of September 2012 purported to have sat to determine an appeal when clearly no appeal had been being noted before him. There is no doubt that the Respondent clearly acted contrary to the provisions of the Code of Conduct. The Applicant’s dismissal from employment was clearly invalid for non-compliance with the Code of Conduct. His dismissal ought to be set aside.

In the circumstances it is hereby ordered as follows:

The application for review succeeds.

The determination handed down by the Managing Director on the 28th of September, 2012 is hereby set aside.

The Respondent is directed to reinstate the Applicant without loss of salary and benefits with effect from date of dismissal.

In the event that reinstatement is no longer an option the Respondent shall pay damages in lieu of reinstatement the quantum of which is to be agreed upon by both parties, failing which either party may approach the Labour Court for quantification of such damages.