Charles Sithole v FBC Building Society

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/304/2016
HARARE, 28 JANUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/304/2016

HARARE, 28 JANUARY 2016	  		               CASE NO. LC/H/823/15

AND 13 MAY 2016

In the matter between:-

CHARLES SITHOLE					Appellant

And

FBC BUILDING SOCIETY				Respondent

Before Honourable R. Manyangadze, J

For Appellant 		Ms U. Goremusandu (Trade Unionist)

For Respondent		A. K. Maguchu (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the determination of the Negotiating Committee for the National Employment Council for the Commercial Sectors (Negotiating Committee), which upheld the dismissal of the appellant from the respondent’s employment.

The brief factual background to the matter is as follows.

The appellant was employed by the respondent as a security guard.  The respondent was running a construction project.  The appellant was assigned guard duties at the construction site.  On 14 December 2014, shortly after commencing night duty, he fell asleep.  He only woke up after he was vigorously shaken by his supervisor, the Security Manager.  He had been in deep slumper for 2 hours at the moment he was woken up by his supervisor.  He refused to undergo a breathalyzer test.

Consequent to this incident, the appellant was charged with misconduct in terms of the National Employment Council for the Commercial Sectors Code of Conduct.  (NECCS Code).  The charge was framed as:

“The allegation against you is that on 14 December, 2014 you were found deep in sleep whilst on duty at the Greendale phase 2 project site.  You slept continuously for almost two hours in-spite of vigorous efforts to awaken you.  You are being charged under the N.E.C.C.S Code of Conduct as provided under Group IV item 8, Breach of Employment Contract – violating safety rules or measures with serious consequences.”

An initial disciplinary hearing held on 6 January 2015 by a Designated Officer, as required by the NECCS Code, found him guilty and recommended his dismissal.  A second hearing on 16 January 2015 also found the appellant guilty and recommended his dismissal.

In a determination dated 19 January 2015, the employer confirmed the dismissal of the appellant.

The appellant’s appeal to the Local Negotiating Committee was unsuccessful.  He further appealed to the Negotiating Committee, which dismissed his appeal on 19 August 2015.

Having exhausted all the domestic remedies available to him, which involved four levels, he noted an appeal with this court.  The sole ground of appeal is stated as follows:

“The Appeals Committee erred in finding that sleeping on duty is tantamount to violating safety rules or measures with serious consequences, when the appropriate charge of sleeping on duty is enshrined in the Code of Conduct for the commercial sectors.”

A careful examination of this ground of appeal discloses two basic issues.  Firstly it is the question of whether or not sleeping on duty constitutes the offence with which the appellant was charged.  If it constitutes that offence, there is the further issue of whether that is the appropriate offence with which the appellant should have been charged.

The offence is violating safety rules and measures with serious consequences.  The appellant contended that his conduct – sleeping on duty – did not amount to a violation of safety rules. He did not put in issue the fact that he indeed slept on duty, in the circumstances described.  What he put in issue is that such conduct did not amount to a commission of the offence cited.

To resolve this issue, the appellant’s conduct must be viewed in the context of his duties as a security guard.  In this regard, the respondent’s submissions to the Local Joint Committee, captioned “RESPONSE TO THE GROUNDS OF APPEAL”, are instructive.  It is stated, in paragraph 3;

“It is important to note that Security personnel must at all times be alert and stay focused and must be able to monitor and protect the property under their custodianship and provide valuable information that enhances the security of the site, in this case the appellant breached his employment contract.  It is important to note that the appellant can no longer be trusted to guard FBC Building Society’s high valued property as his actions were significantly a breach of his contract of employment.  His actions occurred early in the evening and placed great risk to FBC’s property and hence cannot be condoned easily nor accepted by FBC.”

The Local Joint Committee agreed with these submissions.  It summed up its findings in the following terms:

“After going through the submissions made by both parties, the Local Joint Committee makes a finding that, it is not in dispute that appellant slept on duty.  The job of a Watchman requires a high degree of alertness to prevent potential theft of properly and by sleeping on duty, property was exposed to great risk as appellant’s role is to provide protection and safety of property and people.  By sleeping on duty, appellant indeed committed the alleged offence of Breach of Employment Contract by violating safety rules or measures with serious consequences, therefore he is guilty as charged.  The Local Joint Committee upheld the employer’s decision to dismiss appellant and dismissal the appeal.”

The Negotiating Committee, the final level in the domestic appeal processes, upheld the findings of the Local Joint Committee.  In my view, these findings were properly made, and correctly upheld.  The nature of appellant’s duties, as watchman or security guard, whichever term one uses, were such that safety of the respondent’s property was paramount.  Put differently, safety of the property he was instructed to guard was his core responsibility or key result area.  Sleeping on duty, to the extent of not hearing his mobile phone ring, was a fundamental breach of this responsibility.  The respondent submitted, in paragraph 4 of its heads of argument;

“In casu, because appellant slept on duty, respondent’s property was left unprotected.  For a period of two hours the property at the site was susceptible to thieves and damage.  The charge was therefore premised on the fact that Appellant’s misconduct compromised the safety of the assets of the respondent.”

In the circumstances, there is no doubt the appellant contravened section 8 of the NECCS Code – Violating safety rules or measures with serious consequences.”

The other issue is whether it was appropriate for the respondent to prefer this particular charge, when “sleeping on duty appears as a stand alone offence in the Code of Conduct.  The appellant contended that he should have been simply charged with this offence, which attracts a less severe penalty.  In fact, his appeal seemed to lean more heavily on this point.

This contention raises the question of the employer’s discretion when preferring charges against errant employees.  In this regard, the respondent submitted, in paragraph 7 of its heads of argument;

“In the face of multiple possible charges arising from one act of misconduct, the charge to raise is an exercise of discretion by the employer.  The employer chooses the charge it wants to prefer against an employee as long as the evidence adduced is sufficient to prove commission of that offence.  In casu, in choosing the charge to prefer against the appellant, respondent exercised its discretion and chose violation of safety rules/measures with serious consequences and not sleeping on duty.  That charge alone was sufficiently supported by evidence adduced, therefore it cannot be held to be improper.  It therefore becomes irrelevant for the appellant to state that there were other charges which could have been used to discipline him.”

I fully associate myself with these sentiments.  They are consistent with what was stated in County Fair Foods (Pvt) Ltd v CCMA & Others (1999) 20 ILJ 170 (LAC);

“It lies in the first place within the province of the employer to set the standard of conduct to be observed by its employees and to determine the situation with which non-compliance will be visited, interference therewith is only … in the case of unreasonable unfairness.”

If there is nothing, in the provisions of the Code of Conduct, that restricts the employer’s discretion, and confines the employer to one particular charge to the exclusion of another possible charge, there would be no basis on which to interfere with the decision as to what charge to prefer.  The appellant conceded there is no such restrictive provision in the Code under consideration.  The court sought clarification on this point, and the following was the exchange between the court and Ms Goremusandu, the appellant’s trade union representative:

“Q.	Is the Code crafted in such a manner that preference of one charge excludes another charge that may arise out of the same facts.

A. 	No it does not, but what I am trying to say is that the charge talks about sleeping on duty during normal working hours, of which this is what the appellant did.  He slept on duty during working hours – nothing else.  This charge warrants a warning valid for 3 months.  It does not warrant dismissal.  That is why we are saying the charge preferred is too harsh.”

It seems the appellant’s plea is not that he did not indulge in the act complained of, sleeping on duty.  His plea rather is that he should have been treated more leniently.  The employer should have chosen a less severe charge, and spared him the ultimate penalty.  For reasons already stated, his plea or contention cannot be upheld.  In the circumstances, the appeal cannot succeed.

It is accordingly ordered that:

The appeal be and is hereby dismissed.

The decision of the Negotiating Committee be and is hereby upheld.

The appellant shall bear the respondent’s costs.

Dube, Manika & Hwacha, respondent’s legal practitioners