Fightwell Mukanganwi v Escapades

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/726/13
HELD AT HARARE ON 30th SEPTEMBER, 2013
CASE NO. LC/H/277/13
AND 3RD JANUARY, 2014
JUDGMENT NO. LC/H/726/13
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/726/13

HELD AT HARARE ON 30th SEPTEMBER, 2013  CASE NO. LC/H/277/13

AND 3RD JANUARY, 2014

In the matter between:-

FIGHTWELL MUKANGANWI						Appellant

And

ESCAPADES								Respondent

Before the Honourable G. Mhuri, Judge

For Appellant: Mr. M. Maramwidze (Legal Practitioner)

For Respondent:Ms. R.R. Mutindindi (Legal Practitioner)

MHURI J.:

Appellant who was in Respondent’s employ as a Cutting Room Supervisor and dismissed for gross incompetence or inefficiency (Clause 3(j)(Serious Misconduct) of the Clothing Industry Code of Conduct SI 132 of 1994)

As at the date of commission of this offence (15 November, 2012) Appellant was on a valid final written warning imposed on the 31st August, 2012.  The final warning was taken into account for purposes of the penalty.

Aggrieved by the Grievance and Disciplinary Committee verdict and penalty, Appellant appealed to the National Employment Council Appeal Board (the Appeal Board) which upheld both the verdict and penalty.

This is an appeal against the Appeal Board’s decision.  Appellant’s grounds of appeal (7) can be summarized as follows:-

That the Appeals Board misdirected itself by imputing liability on the Appellant when he was not in charge of the repacking.

That the Appeal Board misdirected itself by not considering that some training was required before the charge could be leveled.

That the Appeal Board did not give due weight to the fact that Appellant was denied legal representation at the initial hearing.

That Appellant was not allowed to examine the witnesses and call his own.

That the Appeal Board misdirected itself by not nullifying the final written warning.

That the Appeal Board erred by not postponing the matter to allow Appellant’s legal representative to be present.

The facts of the matter which gave rise to the charge are aptly captured in the suspension letter dated 26 November, 2012.  They are that, on Thursday, 15th November, 2012 some pieces of fabric were packed in the cutting room department by some employees under Appellant’s instruction and supervision.  Later it was discovered that some of the employees had illegally packed some fabrics which were not meant to be packed, and more fabric than was allowed had been packed.  The employees had written their names on the packs with a view to buying these packs.

It was alleged that Appellant did not consult the Production Manager about the fabric packaging as required.  He had not followed the normal fabric packing process to wit:

That fabric pieces are first separated into their different sizes before packing.

That repacking was for lining and not fabrics.

That in the process Appellant authorized the packing of new fabrics which should not have been sold.

That no supervision was done during packing resulting in the packers packing unauthorized lengths.

The undisputed factual issues were that the Appellant was a Cutting Room Supervisor.  The packaging of fabric was done in his department.  Employees from Appellant’s department were involved in the packing.  Some of these employees illegally packed some unauthorized fabrics which they intended to purchase for themselves.  Appellant agreed that he did not supervise the packaging.  The reasons proferred which were rejected were that he was too busy, that it was not his duty to, that he could not have guessed that people in his department were stealing and that it was difficult to manage thieves.

Faced with such undisputed facts and Appellant’s explanations, I find that the Grievance and Disciplinary Committee correctly found Appellant guilty of gross incompetence or inefficiency in the performance of his duties.  To accept in one breath that the packaging was done in one’s department, by his subordinates and thereafter in another breath, to deny responsibility of supervising these subordinates is hard to accept.

It is gross incompetence in my view to turn a blind eye on what is happening in your department on the reasons that you are too busy, that it is not your responsibility, that he could not have guessed that people in his department were stealing when repacking and that it was difficult to manage thieves.

These reasons show a deliberate and wanton dereliction of duty on the part of Appellant.  It is trite that an Appellate Court should not interfere with the Court aquo’s decision based purely on a finding of fact.  See:

NICHOLAS HAMA V NATIONAL RAILWAYS OF ZIMBABWE 1996 (1) ZLR 664 S at 670 C-E.

Before the Committee retired to consider the determination, Appellant was asked whether he had any witnesses to call and his reply was in the negative.  I have no hesitation to repeat the sentiments echoed in the case of

ZULU v PHARMANOVA (PVT) LTD SC 66/92

to the effect that

“Clearly if a person is offered the chance to exercise one of the rights recognized as being part of the principles of natural justice and he declines to avail himself of this right then he has waived his right.  For example if he is offered the chance to call witnesses and he says he does not wish to call any witnesses.”

The worker representatives were also asked for their comments and they urged the Committee to consider Appellant’s length of service (18 years) and that demotion be considered.

Against this, the management representatives urged the Committee to consider the seriousness of the offence and that Appellant was on a final written warning.

The Committee considered both sides’ submissions and was persuaded by the management’s submission and imposed a dismissal penalty.

In terms of the Code, the penalty for this offence is a dismissal for a 1st breach.  It was within the Grievance and Disciplinary Committee’s discretion to impose a dismissal penalty where it found that the breach went to the root of the contract.  This Court cannot interfere with such discretion unless it is shown that such discretion was not judiciously exercised which was not the case in casu.

See:	INNSCOR AFRICA (PRIVATE) LIMITED V LETRON CHIMOTO SC 6/12.

And

STATE V NHUMWA SC 40/88

in which KORSAH JA at page 5 of the cyclostyled judgment had this to say;

“It is not for the Court of Appeal to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed.  If the sentence imposed complies with the relevant principles, even if it is severer than one that the Court would have imposed, sitting as a court of 1st instance this Court will not interfere with the discretion of the sentencing Court”.

Even though this principle was made in relation to criminal proceedings, it applies with equal force to civil matters such as this one.

I do not find fault in the Committee’s decision to consider the final written warning before it imposed the penalty.  The final written warning was valid.  Appellant had not appealed against it as such it would have been improper for the Appeal Board to nullify it.  It was relevant as the offences were similar and fell into the same category.  (Failing to carry out supervision duties efficiently).

The record also shows that the Appeal Board stood down the hearing to 11.30 hrs at the instance of Appellant’s Legal Practitioner as the Legal Practitioner was seized with another matter at the High Court.  At 11.30 hours the Legal Practitioner did not pitch up for the hearing and the Appeal Board proceeded to hear the appeal in his absence.

I do not find fault with the Appeal Board’s decision to proceed with the hearing in the absence of the Appellant’s Legal Practitioner.  It is the Legal Practitioner who had requested that the matter be stood down to 11.30 hrs.  The Appeal board had advised the parties that since the Code provided that it could decide the matter on the record, it was going to proceed in the event that the Legal Practitioner did not pitch up at 11.30 hours.  This it did as the Legal Practitioner did not pitch up and had not sent word about her predicament leaving the Appeal Board with no option but to proceed with the hearing.

A perusal of the Code’s provisions does not show any provision that clearly stipulates that legal practitioners are prohibited from attending the Grievance and Disciplinary Committee proceedings.  Neither does the letter from the Designated Agent state as such.  Be that as it may, at the onset of the hearing, Appellant did not object to the hearing proceeding nor did he assert his right by insisting that he wanted to be legally represented or be represented by a fellow employee.  He without any objection proceeded with the hearing without such representation.  To that end I find that the irregularity does not vitiate the proceedings.

Consequently I find that the appeal cannot be allowed.  It is therefore ordered that it be and is hereby dismissed in its entirety.

Madanhi, Mugadza and Company Attorneys–Appellant’s Legal Practitioners

Matsikidze and Mucheche–Respondent’s Legal Practitioners