Fred Binaye v Gold Valley Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/691/16
HARARE, 18 OCTOBER 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE  	     JUDGMENT NO. LC/H/691/16

HARARE, 18 OCTOBER 2016			               CASE NO. LC/H/658/14

AND 4 NOVEMBER 2016

In the matter between:-

FRED BINAYE						Appellant

AND

GOLD VALLEY MINE					Respondent

Before the Honourable B.T Chivizhe: Judge

(IN CHAMBERS)

CHIVIZHE, J:

The matter was referred to me for determination on the record in terms of Section 89 (2)(9)(i) of the Labour Act [Cap 28 : 01].  The matter had been filed in 2014 but was lying idle due to failure on the part of the Appellant to settle sheriff’s costs for services of Notice to Set- down. The Senior Judge through a directive dated 3rd October 2016 directed these matters be referred for determination on the record.

I proceed to determine the matter on the papers.

The Background Facts

The Appellant was employed by the Respondent as an underground worker.  He was dismissed by the Respondent following a disciplinary process.  The charge he faced was of ’UTTERING’.  The allegations were that on the 12th of June 2014 whilst at community hall attending the burial service of four of the seven deceased fellow workers which workers had perished in an underground accident at the mine the Appellant uttered words that were to the effect that the workers should not allow in management representatives as they were Satanists.  The Appellant was also alleged to have shouted when Underground Manager was giving his speech words to the following effect “Don’t listen to a dog that has sacrificed the employees.”  He also at some stage again referred to the Manager as a Satanist.  When the Workers Committee Chairman’s turn to speak came he called him a ‘sell-out who had sacrificed his fellow workmates so that he could be promoted and get accommodation in the residential area’.

The Appellant was found guilty by the Disciplinary Committee that sat on the 15th of June, 2014.  A penalty of instant dismissal was then imposed.  The Appellant was dissatisfied and noted an appeal.   The Appeals Committee that sat to hear the appeal on the 4th of July, 2014 returned a guilty verdict.  They therefore upheld the earlier findings by the Disciplinary Committee.

The Appellant noted an appeal in the Labour Court on the basis of the following grounds:

“1.0	The charge was misdirected.

1.1	The nature of the offence cited is not provided for in the Code of Conduct SI 165 of 1992.

1.2.	The offender did not issue his personal statement, which statement only was crafted and provided by the representatives.

1.3.	The hearing official was impartial and had no knowledge of handling cases properly.”

The Respondent through its Notice of Response submitted as follows:

Firstly in relation to the charge levelled Respondent denied the Appellant’s submission.  It was Respondent’s contention that the Appellant at all material times was fully aware of the nature of the charge that he was facing as well as its factual basis.  The Appellant having failed to object to the charge at the disciplinary hearing was stopped from doing so at the stage.  The Respondent also disputed that the charge was not provided for in the Code of Conduct.  It was Respondent’s contention that the charge was provided for in the relevant Code of Conduct under Section 3(b).  Thirdly the Respondent contended that contrary to the Appellant’s submissions the misconduct he perpetrated was clearly work-related.  As was clear from the record of proceedings the incident that resulted in the charge being levelled occurred at an event organised by the employer where the Appellant, his fellow employees, management were present.  The words that Appellant was said to have uttered were directed at the Appellant’s fellow workmates and superiors. On the last ground of appeal the Respondent’s view was that Appellant was given an opportunity to present his defence, including bringing in his representatives and witnesses to the disciplinary hearing.  He was therefore accorded a fair hearing.

In the first ground of appeal the Appellant is challenging the competence of the charge levelled against him.  The record of proceedings shows that he was charged with ’UTTERING’.  No specific section of the Code of Conduct was cited.  In written submissions before this court the Respondent contends that the particular section was Section 3(b) of the Code of Conduct.

Section 3(b) of the Code of Conduct reads as follows:

“abuse and related offences – abusive language; the uttering of any words or the publications of any writing, expressing or showing hatred, ridicule or contempt for any person, or group of persons.  The offence is more serious when it is wholly or mainly because of race, tribe, religion, place of origin or colour.”

On the basis of the provisions in Section 3(b) it is clear that the point taken by Appellant is meritless.  It was clear from the papers such as the complaint form that the charges he was facing were related to words he had uttered which the employer felt could result in inciting other workers.  The charge had nothing to do with the ’uttering’ referred to in Section 4(b) of the Code of Conduct.  It is also clear that although the Respondent had not specifically referred to that section in the Code it was clear from the nature of charges levelled what misconduct he was facing. The Appellant also could not have suffered any prejudice as a result of the omission to cite specific section.  Indeed the Appellant has not submitted that he suffered prejudice as a result of the omission on Respondent’s part to cite specific section of the Code.

The Appellant has also suggested that the charge was not properly levelled as the conduct complained of was not work-related.  This is also a meritless ground.  It is clear on the basis of the record that the misconduct complained of uttering words that were rude and insolent towards his co-employees, management and union representatives was committed in the presence of his workmates.  The misconduct was also committed at the community hall where the employer had organised a memorial service for the seven workers who had perished in a mine accident.  The insults were also clearly directed at his fellow employees, management representatives and the union representative.  Clearly the misconduct was work-related.  The Respondent aptly referred the court to the cases of Zimpack (Pv) Ltd vs Mugarabi SC 196/94 and Makwiro Platinum Mines vs Paradzayi SC 46/04 at p.3 where similar arguments were dismissed by the Supreme Court.

The Appellant has in the rest of his grounds challenged procedural issues related to the disciplinary hearing as well as the appeal hearing.  It is a trite position at law that in  order for a procedural irregularity to vitiate proceedings the party claiming it has to establish prejudice  See Nyahuma vs Barclays Bank SC 67/05.  It is also the position that a person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct proceedings correctly.  He should escape such consequences because he is innocent.

Whilst the Appellant has raised procedural issues before the court he has however failed to place before the court facts/evidence to show he was prejudiced by the alleged procedural irregularities in the disciplinary process.  It is also clear that the Appellant having committed a serious act of misconduct he cannot escape the consequences of his misconduct because of those perceived procedural irregularities.

In the result the appeal being clearly devoid of merit, it be and is hereby dismissed with no order as to costs.