Eagle Italian Shoes (Pvt) Ltd v Stephen Marumure

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/437/2016
HARARE, 26 MAY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/437/2016

HARARE, 26 MAY 2016  				     CASE NO. LC/H/471/15

AND 22 JULY 2016

In the matter between:-

EAGLE ITALIAN SHOES (PVT) LTD				Appellant

And

STEPHEN MARUMURE						Respondent

Before Honourable P. Muzofa, Judge

For Appellant		B. Kwaira (Human Resources Manager)

For Respondent		J. Manyadza (ZISAWU)

MUZOFA, J:

This is an appeal against the decision of the National Employment Council Appeals Committee “NEC Appeals Committee”.

The facts of the case are common cause.  The respondent was employed as a cementer by the appellant.

On 8 October 2014 one Max an employee of appellant during his course of work intended to serve the workers’ committee representatives with certain documents.  It was alleged that Max engaged the chairman of the worker’s committee, who invited the rest of the workers’ committee members and other employees.

Commotion ensued and when he was by the gate leaving the premises the workers blocked the car and threatened Max.  Respondent was part of the group of workers.

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

He was found liable and dismissed from employment.

He appealed to the 	NEC Appeals Committee.  The committee after considering the case made a finding that the appropriate charges were offences 17 and 32 and set aside the penalty of dismissal and ordered that respondent be reinstated without loss of salary and benefits.  The penalty of dismissal was substituted with a final written warning.

The appellant dissatisfied by the outcome appealed to this court.

The grounds of appeal are far from being precise.  The appellant just stated that the decision was grossly unreasonable and it was based on wrong assumptions.

It was submitted for the appellant that the NEC Appeals Committee had no power to interfere with an employer’ s discretion where there is no misdirection, reference was made to the case of Mashonaland Turf Club v Mutangadura SC 5/12.

According to appellant the respondent committed a serious offence and offence 37 and 45 were the appropriate charges.  Max was an employee of the appellant and a copy of Max’s contract was tendered.

For the respondent it was submitted that the NEC Appeals Committee’s decision was proper in that Max was not an employee of appellant.  According to respondent’s representative Max was an employee of one Bond Taderera who was engaged by appellant as a consultant.

The NEC Appeals Committee’s role is really different from the employer.  The employer is vested with the power to discipline its employees applying the Code of Conduct.  Section 6.2 of the appellant’ s Code of Conduct gives the employer that power to charge an employee suspected of committing some misconduct.

This prerogative cannot be usurped by the Appeals Committee to prefer a different charge.  The duty of the Appeals Committee was to determine whether the grounds of appeal raised by respondent were valid.  Instead the Appeals Committee opted to prefer what it believed were the appropriate charges.  If the Appeals Committee found that there was no evidence to prove the two charges preferred by appellant, it should have reversed the verdict.  It is not for an appeal body to mero motu, substitute its own charge or make a finding on an entirely different offence.  In Lawsign Nyarumbu v Sandvik Mining and Construction Zimbabwe (Pvt) Ltd SC 31/13 the Court held that such action would “constitute a blatant miscarriage of justice” see also Zimasco (Pvt) Ltd v Chizema 2007 (2) ZLR (S) 314 at 316E – 317 G.

In any event the rationale to substitute the offence is not supported by evidence.  The evidence placed before the disciplinary committee was that respondent was part of the people that caused commotion at the gate where Max was exiting.

The respondent did not deny being part of the commotion but highlighted that Max was not an employee of appellant.  That fact does not change the complexion of the charge.

The differences between offence 37 and offence 32 save for the penalty is that offence 37 requires active participation in obstructing any person in the lawful execution of their duties.  Offence 32 is passive obstruction in the same circumstances.

So whether Max was employed by appellant or not is of no consequence he was executing his lawful duty.

It was proved by way of the contract that Max was appellant’s employee.

The Appeals Committee fell into error by interfering with a factual finding justifying the charge.  To that extent the appeal must succeed.

Consequently the appeal be and is hereby upheld.

The decision of the NEC Appeals Committee is set aside in its entirety.

The respondent’s dismissal is hereby confirmed.