Eagle Italian Shoes (Pvt) Ltd v Farai Kambudzi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/432/16
HELD AT HARARE 6 JUNE 2016
JUDGMET NO LC/H/432/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMET NO LC/H/432/16

HELD AT HARARE 6 JUNE 2016				CASE NO LC/H/470/15

& 22 JULY 2016

In the matter between:

EAGLE ITALIAN SHOES (PVT) LTD			Appellant

And

FARAI KAMBUDZI					Respondent

Before The Honourable P Muzofa, Judge

For Appellant			B Kwaira (Human Resources Manager)

For Respondent		J Manyadza (Organising Secretary)

MUZOFA J:

On 12 December 2014 the appellant dismissed the respondent from employment following disciplinary proceedings.

An Internal appeal was unsuccessful.  He appealed to the National Employment Council Appeals Committee, ‘the Committee’.  The Committee found that the respondent committed a less serious offence, and ordered that the penalty of dismissal be set aside and substituted by a final written warning.  The appellant was therefore to reinstate the respondent and in the alternative pay damages.

The appellant then appealed to this court.

The grounds of appeal set out in the notice of appeal are not precise.  The grounds of appeal raise issues that the order was against public policy and that the decision was grossly unreasonable based on wrong assumptions.

According to the appellant, the respondent blocked a vehicle with stones and sticks that was driven by one Max.  Max was on official duty, delivering certain documents to the workers committee.  Respondent was part of a group of employees who shouted and threatened Max.

Respondent was charged under the applicable code for violating offence 37 for active obstruction of any person in the lawful execution of their duties and offence 45 intimidation or threatening behaviour.

Obviously there was a clear splitting of charges.  Despite that both offences attract a dismissal on first breach.

As stated before, despite respondent’s denial that he committed the misconduct, he was found liable.

On appeal the appeals committee substituted the charges to contravening offence 17 being discreditable conduct towards persons who have dealings with the employer and offence 32 being passive obstruction of any person in the lawful execution of their duties.

A point was taken for the appellant that the appeals committee fell into error by substituting the charges where there was no gross misdirection on the part of the employer reference was made to the case of Mashonaland Turf Club v Mutangadura SC 5/12.

For the respondent it was submitted that the Appeals Committee did not err in that Max was not employed by the appellant.  It was respondent’s case that Max was employed by one Bond Taderera who was appellant’s consultant.

Appellant produced a contract of employment showing that Max was employed as an administration clerk by appellant.  Respondent denied this suggesting that the contract could be a fraudulent document.

The folly in respondent’s case is that there was no evidence to disprove the appellant’s evidence.

To that extent the court accepted that Max was an employee of appellant as at 8 October 2014.

Having disposed of that factual issue in my view respondent’s case remained a bare opposition.

In any event the charges did not hinge on whether or not the obstructed person was an employee of appellant.  The requirement is that the person must be executing lawful business.

Both parties concede that Max was on lawful business to serve documents to the workers committee.

Respondent did not make any submission in respect of the issue raised by appellant that the appeals committee had no power to change the charge.

An appeals committee is only expected to deal with the appeal within the context of the grounds of appeal.  Thereafter make a decision based on the facts.

In Lawsign Nyarumbu v Sandvik Mining & Construction Zimbabwe (Pvt) Ltd SC 31/13 PATEL AJA (as he was then) had this to say on such conduct by an appeal body at p 6

“It is axiomatic, in criminal as well as disciplinary proceedings that a person cannot be found guilty of an offence that has not been preferred against him, unless that offence is a competent verdict on the offence originally charged…

In this context, notwithstanding the provisions of S89 (20 (a) (ii) of the Labour Act, the Labour Court cannot mero motu, substitute its own charge or make a finding of guilty on an entirely different case.  Any such action would constitute a miscarriage of justice see Zimasco (Pvt) Ltd v Chizema 2007 (2) ZLR (S) 314 at 316 E – 317 G.”

This position of the law apply equally to the appeals committee.  It has no power to alter the charges.  Its powers are defined by the grounds of appeal, it can only set aside a conviction where it believes the preferred charges were not proved.

I agree with the appellant, from the employer’s perspective respondent committed a serious offence.  Charging an employee is the prerogative of the employer.  In terms of Part III section 6.2 of Statutory Instrument 246 of 1993 the applicable code, the employer is the one who advises the employee of the misconduct.

There is no provision for competent verdicts in the said code.

The appeal should therefore succeed on that basis.

Consequently the appeal be and is hereby upheld.

The decision of the appeals committed is hereby set aside.

The respondent’s dismissal is hereby confirmed.