Carnaud Metal Box v Arthur Ruzvezve

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/495/2013
HARARE, 3 OCTOBER, 2013
CASE
JUDGMENT NO. LC/H/495/2010
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/495/2013

HARARE, 3 OCTOBER, 2013				CASE NO. LC/H/608/2011

AND 25 OCTOBER, 2013

In the matter between

CARNAUD METAL BOX						-	Appellant

VS

ARTHUR RUZVEZVA			 			-	Respondent

AND

NEC ENGINEERING & IRON AND STEEL

Before The Honourable B.T. Chivizhe: Judge

For Appellant 	-	Mr. T. Pasirayi (Legal Practitioner)

For Respondent 	-	Mr. B. Makururu (Legal Practitioner)

CHIVIZHE, J.

The matter was placed before me as an application for review conjoined with an appeal.

The background facts to the matter are as follows:

The Respondent was employed by the Respondent as a Setter Operator in 1975.  He was suspended on allegations of contravening Clause 11D(d) of the relevant Code of Conduct i.e. Statutory Instrument 301 of 1996 i.e. “applying to a wrong use or for any unauthorized purpose any funds, assets or property belonging to the company” and “failure to follow laid down procedure” “using company grinder and workshop for a private job without permission”.  The allegations were that the Respondent had brought in two pieces of steel without declaring them.  He had then, without obtaining permission, used the company workshop and grinder to sharpen and grind the two pieces of steel.  The last violation was that the Respondent without obtaining a gate pass for the sharpened pieces then purported to take them out of the premises.

The Respondent was arraigned before the Disciplinary Committee on the 11th of April 2011.  The Disciplinary Committee found Respondent guilty on the charges and imposed a penalty of dismissal on the 12th of April 2011.  Exercising his rights under the Code the Respondent appealed to the Works Council.  His appeal was only against the penalty of dismissal.

The Works Council in its decision dated 3 May 2011 upheld the decision of the Disciplinary Committee.  Aggrieved the Respondent then appealed to the General Engineering Committee.  His grounds of appeal were that;

The Disciplinary Committee did not consider mitigating factors being Appellant’s length of service that, he is a family man and he was sick undergoing treatment on the day he was caught.

The Appellant is a first offender.

The extent of loss does not warrant dismissal.

The sentence is too harsh to such an extent that induces a sense of shock.

A body referred to in the records as the Code of conduct Appeals Committee sat on the 13th of September, 2011 to consider the appeal noted by the Respondent.  I find it convenient to quote from minutes of that committee.

“Appeals Against Dismissal

M. Ndoorwi vs Cochraine Engineering (Pvt) Ltd

Arthur Ruzvezve vs Carnaud Metal Box (Pvt) Limited

The Committee noted that the employee had admitted to his wrong doing.  However, the Committee failed to substantiate the Senior Secretary’s claim that the employee walked out of the disciplinary hearing.

The Committee also noted that whatever decision it came up with was to be done in accordance with Code S.I. 301/1996,

After considering the employee’s age and length of service and that he is unlikely to secure alternative employment, the Committee decided to invoke Clause 6(c) of the Code and give an alternative penalty of “reduction in pay up to a maximum of five percent … for a maximum of three months”.

The Committee’s reasons for coming up with an alternative penalty were:

That in terms of Clause 2(3)(c) one of the objectives of the Code was “to provide a time for correction of misconduct.

In terms of Labour & Relations Amendment Act Section 12(B)(4), the Committee considered his age and length of service and decided that the employee deserved to get a lesser penalty for the offence.”

Aggrieved by this determination the Appellant lodged with the Labour Court an appeal conjoined with an application for review of the decision.  	The sole ground on which the appeal was noted is that;

The Appeals Committee of the NEC, engineering and Iron and Steel Industry having properly found that the offence committee by Respondent was a dismissible one, grossly misdirected itself by improperly interfering with Applicant’s decision to dismiss Respondent and substituting its own penalty.  Such improper interference had the effect of trivializing the offence committed by Respondent which bordered on dishonesty.

The application for review was also noted on the basis of one ground which is that;

The procedure for hearing and determining Appeals in terms of S.I. 301/96 was not adhered to as the Appeals Committee grossly misdirected itself in hearing and determining the Appeal when there is no provision in the Code of Conduct of the Engineering and Iron and Steel Industry for the hearing of an Appeal by the Appeals Committee, which Appeal was supposed to be heard and determined by the General engineering Committee in terms of Section 7(3) of S.I. 301/96.

I find it convenient to address initially the ground for review.

The Appellant’s position is that the Code of Conduct Appeals Committee grossly misdirected itself in entertaining and determining the appeal noted by the Respondent when there is no provision under the relevant Code granting that body the power to so hear and determine the appeal.  According to Appellant’s submission the Code of Conduct in Section 7(3) grants such power to the General Engineering Committee.  In written submissions filed after the hearing the Appellant contends that as the Appellant’s Committee is not provided for under the Code it is therefore ultra-vires the code.

The Respondent in counter – argument submitted that there is no difference between the Code of Conduct Appeals Committee that sat to hear the appeal and the General Engineering Committee.  The correct position is that in practice the Code of Conduct Appeals Committee is a sub-committee of the General Engineering Committee.  When it therefore sits to determine an appeal it sits as an arm of the General Engineering Committee.

The Code of Conduct in clause 7(3) provides for an employee’s right to appeal from the Works Council decision to the General Engineering Committee.  The Appellant however has failed through its papers and oral submissions to challenge the submission by the Respondent that in practice the body known as Code of Conduct Appeals Committee sits as a sub-committee of the General Engineering Committee.  That body clearly would have a mandate from the General Engineering Committee.  Its actions cannot be said to be ultra vires the Code of Conduct.  It is also pertinent to note that the relevant code, Statutory Instrument 301 of 1996 does not outline the nature of the appeal before the General Engineering Committee, neither does it indicate how that committee conducts its business.  The Appellant also failed to challenge the issue of the jurisdiction of the Appeals Committee at the material time.  The issue appears to be raised as an afterthought.  The Appellant’s ground for review clearly cannot stand.

In regards the ground of appeal the Appellant’s submission is that the employer having in the exercise of its discretion imposed a dismissal penalty the Code of Conduct Appeals Committee erred by revoking that penalty and substituting its own penalty.  In so doing the Appeals Committee had not made a finding of misdirection, gross unreasonableness and unfairness on the part of the employer.

The determination of the appropriate penalty was in my view, within the discretion of the Appeals Committee.  This court would not normally interfere with the exercise of a judicial discretion unless there is a valid basis for doing so.  If for example, the Appeals Committee mistook the facts and did not take into account relevant facts, or if the Appeals Committee misdirected itself in the exercise of its discretion this court would be inclined to interfere with the Appeals Committee decision.

This much was stated by Sandura J. in Zimbabwe Alloys Limited v Amos Muchohonyi wherein he referred to decision by Gubbay CJ (as he then was) in Barros and Anor v Chimphonda 1999(1) ZLR 58(S).  At 62F-63A, the Learned Chief Justice said:

“The determination of the learned Judge that there were no special circumstances for preferring the second purchaser above the first – one which clearly involved the exercise of a judicial discretion – may only be interfered with on limited grounds.  See Farmers’ Co-operative Society (Reg.) v Berry 1912 AD 343 at 350.  These grounds are firmly entrenched.  It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the materials for so doing.”

I am satisfied that in casu, there is no valid basis for interfering with the decision of the Appeals Committee.  It is clear from its judgment that whilst the Appeals Committee was aware that the misconduct Respondent was convicted of was a very serious one; that it involved a breach of trust and that the Respondent admitted to the charge.  It was however the Committee’s considered view that given the special circumstances that the Respondent had served for 39 years and was approaching retirement with little prospects of obtaining alternative employment the dismissal penalty was inappropriate. The Appeals Committee to reach this conclusion clearly weighed the aggravating factors as against the mitigatory factors a requirement laid down by Section 12B(4) of the Labour Act [Chapter 28:01].  The Appeals Committee consequently did not err when it proceeded to set aside the penalty of dismissal to substitute it with one for a reduction in pay up to a maximum of five percent for a maximum of three months.  The appeal clearly stands to be dismissed.

In regards the order that the court should grant in the circumstances the Respondent submitted that as he has since attained retirement age reinstatement was no longer an option.  Through correspondence submitted after the proceedings the Appellant submitted that the Respondent having been placed on retirement would not be entitled to any damages should the court find in his favour. The Respondent disputed that he was lawfully retired from 
Appellant’s employment as he never opted for the same.  With regards to the pension benefits tendered to him by the Appellant in the form of bank deposits into his account Respondent submitted that he was not aware at the time of such deposits having been made and that the deposits have been lying in his account to date.  The Respondent then tendered his current bank statement to prove that the amount is still lying in his account.

The facts in the matter show clearly that the Respondent was dismissed pursuant to the disciplinary hearing on the 12th April 2011.  He then filed his appeal to the Works Council.  The Respondent clearly at that stage had not accepted his dismissal from employer.  The Code of Conduct granted him a right to appeal.  The Appellant however from documents filed commenced Respondent’s early retirement proceedings which retirement was then presumably finalized on the 30th of April 2011.  The Court is not privy to the Appellant’s retirement policy.  The evidence placed before the court is however that retirement age is 60 years and at the time of Respondent’s dismissal he was 57 years.  It is therefore not clear whether the retirement policy allows for early retirement and in what circumstances, whether it is based on the employee’s election or at the employer’s instance.  The Respondent however insists that he never voluntarily opted to retire early.  Even in the absence of the relevant retirement policy what is very clear to the court is that the employer in this case placed the employee on early retirement in order to defeat the purpose of the appeal procedures outlined in the Code of Conduct.  The Respondent by lodging his appeal clearly indicated his intention to challenge his dismissal.  It was not open to the employer to then unilaterally decide to retire him.  Retirement which is forced on the employee in such circumstances clearly amounts to a nullity.

What is the way forward?  Having come to the conclusion that the Appeals Committee did not err when it revoked and substituted the dismissal penalty it follows that the Respondent would have been entitled to reinstatement with effect from the date of unlawful dismissal i.e. 12th April, 2011.  The Respondent having since attained retirement age has opted to take retirement option.  It follows that he is entitled to damages in the form of salary and benefits to cover the period from 12th of April, 2011 to the date when he was due to lawfully retire.  Because he has already received some money as pension benefits he is entitled to the said damages minus the amounts already received to date.  He is also entitled to interest at the prescribed rate on the sum payable from the date of dismissal to the date of payment in file.  The Respondent would thereafter be considered to have been automatically retired from his lawful date of retirement and the Appellant shall pay out pension benefits in terms of its retirement policy.

In the circumstances it is accordingly ordered as follows;

The application for review and appeal are both dismissed with costs.

The decision of the Appeals Committee is hereby upheld.

The Respondent’s purported retirement on 30th April, 2011 is hereby set aside.

The Respondent is awarded damages equivalent to the salary and allowances he would have earned from the date of unlawful dismissal i.e. 12th April, 2011 to date when he would have been lawfully retired from employment.

The damages payable shall be subtracted in the amount already tendered to date to the Respondent as ‘pension benefits’.

Interest at the prescribed rate shall accrue on the said damages from the date of dismissal up to the date of payment in full.

In the event of parties failure to agree on the quantum of damages payable either party may approach the Labour Court for quantification thereof.

Gill, Godlonton & Gerrans Legal Practitioners, Representing the Appellant.

Guni & Guni Legal Practitioners, Representing the Respondent.