Barzem v Canaan Chikwature

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/524/14
HARARE 24TH JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT LC/H/524/14

HARARE 24TH JULY 2014					CASE NO LC/H/295/14

& 15th AUGUST 2014

In the matter between:-

BARZEM						Appellant

And

CANAAN CHIKWATURE				Respondent

Before The Honourable B.S. Chidziva, Judge

For Appellant		Miss S Nyagura (Legal Practitioner)

For Respondent		Mr B Makururu (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the decision of the National Employment Council for the Engineering and Iron and Steel Industry which was issued on the 26 August 2013.  The Committee upheld the decisions of the Local Joint Committee.  The Local Joint Committee found the respondent guilty of contravening

Clause 11 (A) (d) unauthorised absence from work premises for more than five (5) days without a valid excuse.

Clause 11 (B) (a) – reporting late for work without a valid excuse

They then considered alternative penalties as provided for by S.I. 301 of 1996 Section (6) (c) and imposed the following sentence

“reduction in pay to a maximum of 5 per cent for a maximum of three months in respect of an act of misconduct which the appropriate penalty is dismissal.”

The reasons that were given for this decision were that

“(a) 	 There is no evidence that the employee was counselled or any

discussion was done by the employer.

b)	The 9 days were not consecutive and action could have been taken within the intervals of the offences.”

The brief background of the matter is that the respondent was

employed by the appellant as a mechanic.  He was the only mechanic in the organisation responsible for vehicle repair work.  This issue of absenteeism and reporting late for work had gone for two (2) years that is July 2011 to April 2012.

The grounds of appeal are that

The Appeal Committee erred at law in interfering with the penalty of dismissal imposed by the employer for the misconduct of habitual absenteeism or late attendance to work a misconduct that goes to the root of the contract and warrants dismissal.

The Appeal Committee erred at law in not finding that the respondent was convicted of separate offences all of them which called for a penalty of dismissal.

The Appeals Committee misdirected itself at law in making a finding that the 9 days of absenteeism were not consecutive and therefore did not warrant dismissal.

The Appeals Committee erred by making a factual finding that there was no counselling which was conducted.

The appellant therefore prayed that the appeal be allowed with costs.

The appellant in response told the court that

The has approached this court with dirty hands.

No evidence was adduced to show respondent was counselled.

The respondent never admitted that he was absent in respect of all the days

The fact that an offence is a dismissable one does not mean that are has to be dismissed as a matter of fact.

The respondent therefore prayed for the dismissal of the appeal.

It is common cause that respondent was absent from work and reported

for work late on a number of occasions.  He was eventually charged for this misconduct and dismissed from employment.  The National Employment Council for Engineering on appeal  overturned this decision and imposed the penalty stated above.

What is to be decided is whether the council erred by imposing this penalty.

This court will deal with the point in limine that has been raised which stated that the appellant had approached this court with dirty hands.  However section 85 (2) of the Constitution of Zimbabwe Amendment (No 20_ Act 2013 states that

“The fact that a person has contravened a law does not debar them from approaching a court for relief under subsection (1)”

This therefore means that the fact that the appellant has not reinstated the respondent does not bar the appellant from approaching the court for relief.  It is for this reason that the point in limine cannot stand.

It has been a trite principle of law that when an employer is of the view that an employee should be dismissed the employer has a right to dismiss an employee after a hearing for a misconduct of a material nature.

In the case of Toyota Zimbabwe v Posi SC 55/07 it was held that

“We are bound by the rule of construction to the effect that we must presume that there is no intention to alter the common law.  As Mr Zhou put it the Labour Act contains no provisions which either expressly or by implication purports to alter the common law principle that an employer has a right to dismiss an employee following conviction for a misconduct of a material nature going to the root of the employer and employee relationship.  A code of conduct cannot alter or abrogate a principle of the common law.  It does not matter that the Code of Conduct is a product of an agreement.”

In the case of Mvere v Tanganda Tea Ltd SC 130/14 it was stated that

“The question whether the dismissal of an employee is justified is a question of fact dependant upon the extent of the misconduct committed and determined by reference to all the circumstances of the case.”

In this case respondent was an engineer, an adult and a literate person

who very well appreciated the impact of his behaviour on the appellant.  Take it that he was not counselled he knew what the contract of employment required.  The appellant had a good reason to dismiss the respondent for he is not a person to rely on because of his conduct.  There was therefore no reason for the committee to interfere with the employer’s discretion.

In view of this therefore the appeal is allowed and the decision of the committee be and is hereby substituted with the following order

“The respondent be and is hereby dismissed with effect from the date of the verdict of the Disciplinary Committee.”

Matsikidze & Mucheche, appellant’s legal practitioners

Musoni Law Chambers, respondent’s legal practitioners