Gibson Mukanyi v Coblem Enterprises (Pvt) Ltd t/a Roadgrip

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/186/25
HARARE, 09 MAY 2025
CASE NO. LC/H/201/21
In the matter between-
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 09 MAY 2025

JUDGMENT NO. LC/H/186/25

CASE NO. LC/H/201/21

In the matter between-

GIBSON MUKANYI	APPELLANT

AND

COBLEM ENTERPRISES (PVT) LTD	RESPONDENT T/A ROADGRIP

Before Honourable Chivizhe, J :

For Appellant:

For Respondent

Mr. K. Chirenje (Legal Practioner)

Mr A.Mugandiwa (Legal Practitioner)

CHIVIZHE, J:

The delay in hand down in this judgment is sincerely regretted.

This is an appeal against the entire judgment by Mr C. T. Dururu of the National Employment Council for the Motor Industry. The determination was handed down on 24 May 2021.

BACKGROUND FACTS

The Appellant was employed by the Respondent on 10 September 1997 as a Tyre Inspector. He was engaged on the basis of an open-ended contract of employment. On 09 July 2019 Appellant was suspended from work on allegations trial he had refused to write a report pertaining to an incident of an employee who had hidden washing soap and some patch sealant in the workshop. The Appellant was charged with “wilful disobedience to a lawful order given by the employer or a person legally placed in authority above him. Appellant was arraigned for a disciplinary hearing on 16 July 2019. The matter could not proceed on the day and was rescheduled to 24 July 2019 at 10:30 hours. On that date the Appellant attended the hearing in the canteen room. He requested for the matter to be stood down to follow the attendant of his

trade represent union representative. The matter was stood down to 11:30 am. The Appellant contends trial when his representative arrived for the hearing at the scheduled time, he found thatthe disciplinary hearing had already proceeded in Appellant’s absence. Appellanthad been found guilty of the charge and a dismissal penalty imposed upon him, an internal appeal and a further appealto the National EmploymentCouncilfor Motor Industry Disciplinary Committee were both dismissed. Dissatisfied with the determination of the National Employment Council for Motor Industry Disciplinary Committee to uphold the sentence imposed by the Respondent the Appellant approached this court with the present appeal. The appeal is premised upon section 4 (b) of Statutory Instrument 35 of 2011.

GROUNDS OF APPEAL

The appeal is premised on the following grounds:

1.	The NEC Motor Industry misdirected itself by not recognising that the appellant was not heard on 24 July 2019.

2.	 The NEC Motor Industry misdirected itself by failure to recognise that the appellant had no case of misconduct as he had fully obeyed a lawful order given to him by writing on a needed report on the same date and same time on 9 July 2019.

3.	 The NEC Motor Industry misdirected itself by not recognising the simple fact that the documents presented by the respondent dated 24 July 2019 and submissions made were inconsistent on a number of issues which even proved that the appellant was not given a right to be heard.

4.	 The NEC Motor Industry misdirected itself by concluding that the denial by the appellant's representative of production of further evidence by the respondent after all pleadings filed was the basis of its finding to uphold the respondent's determination of dismissal from work.

5.	 The NEC Motor Industry failed to articulate that the appellant was dismissed on technical issues. The matter was not heard on the merits.

6. The sentence imposed is very excessive and induces a sense of shock as the appellant insists that his right to be heard was infringed.

RESPONDENT POSITION

Thought an affidavit by Joseph Nota, the Respondent’s Human Resources Manager, and Respondent responds to the appeal on the basis of the following averments:

That the appeal is in essence on abuse of court process as it has no merit whatsoever; that the Appellant has placed before this court new issues that were not before the Disciplinary Committee of the National Employment Council for Motor Industry: on the issue of breach of the right to be heard which is the only issue that is properly before this court the

Appellant was afforded his rights as enshrined in the relevant Code of Conduct leading up to the hearing: that he along with his representatives did not turn up for the scheduled hearing, the matter then proceeded in their absence: that having absented himself at the hearing of the 24th of July 2019, the Appellant waived his right to challenge the disciplinary proceedings: that the Appellant failed to discharge the onus on him to prove on a balance of probabilities that he had been denied the right to be heard: that the rest of the issues raised in this appeal not having been ventilated before the tribunal a quo are improperly placed before this court: that they ought therefore to be struck out of the proceedings.

EVALUATION

Whether the other issues raised in this appeal, apart from the right to be heard were ventilated

before the Disciplinary Committee of the National Employment Council for Motor Industry.

The Appellant submits that the issues were indeed before the Disciplinary Committee but he is unable to place the evidence before the court as the Disciplinary Committee does not have a record for the proceeding. It is indeed a trite position at law that a court sitting as an appellate tribunal can only hear/determine issues that were ventilated in the tribunal a quo. This court is sitting as an appeal court. The onus is on the Appellant as the party challenging that the issues as raised were before the tribunal a quo, to place such evidence before this court. The Appellant has clearly failed to discharge the onus on him. It must follow therefore that the point as taken by the Respondent is upheld. There is consequently one issue for determination before this court which is based on the alleged denial/ breach of his right to be heard. I turn to address the point.

Whether the appellant’s right to be heard was violated

The issue has been raised by the Appellant following a finding of fact by the National Employment Council Disciplinary Committee that the Appellant was afforded the right to be heard. Before this court the Appellant contends that the Disciplinary Committee erred and misdirected itself in the conclusion arrived at, in view of the fact that he was present on the day of the hearing he had actually attended to the request that the matter be stood down to 11:30 hours. The Disciplinary Committee ought to have found that the fact that the employer opted not to call him for the hearing the employer was therefore hell bent on dismissing him. The Appellant also contends that the time reflected for the completion of the hearing i.e. 11:45 clearly shows that the hearing had started earlier than contended by the Respondent. The

Respondent claim was that the Committee had after 11:30 am waited another 15 minutes before commencing the hearing. This however is not a correct position. The minutes showed that by 11:45am the hearing was complete and the Appellant had already been dismissed. The Appellant also contends that the Disciplinary Committee also unfairly placed reliance on his representative denial to have the CCTV footage of the events on the day of the hearing produced. On this basis the Appellant prayer is that the ground of appeal, being with merit ought to be upheld by the court.

The Respondent’s position on this ground is that the ground lacks merit. It is clear from a perusal of the record that the NEC for Motor Industry Disciplinary Committee was faced with two contrary version of events. The Appellant version was that his representative had arrived at exactly 11:30 am and had met Mr Nota, the Chairperson of the internal Discplinary Committeee who had then advised that the hearing was already done and the Appellant had been dismissed. The Respondent’s version on the other hand was that the Appellant and his representatives did not present themselves before the Disciplinary Committee at 11:30am. There was no request made by the Appellant himself or his representatives for a further postponement. The Disciplinary Committee, had, after waiting another 15 minutes proceeded with the hearing.

It is also a trite position at law that appeal courts do not lightly interfere with findings of fact. The circumstances under which they can so interfere were set out in Barros & Anor v Chimphonda, 1999 (1) ZLR 58 (S) aptly referred by the Respondent. In that judgment the Supreme court stated as follows:

“It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution..”

The Disciplinary Committee in its determination noted the following:

1. Respondent acknowledged and even apologised for his actions in his written statement.

2. Respondent has shown high level of disrespect to the Disciplinary Committee, since he asked for an adjournment and then never bothered to pitch up for the proceedings at the time he has requested the panel to meet.

3. All notifications were served to them well in time but they never bothered to alert the panel that they were running late.

4. The Chairman was more than generous by giving the Respondent and his team more time to avail themselves for the proceedings.

5. .The Disciplinary Committee will have to be guided by the laws and follow guidelines of the CBA S.I.135/2011, Section 3b (ii), as this is a serious offence.

VERDICT

The Disciplinary Committee dismissed Gibson Mukenyi in absentia from employment of Coblem Enterprises (pvt)ltd T/A Roadgrip effect from 24th July, 2019”

It is clear on the basis of Barros & Anor v Chimphonda, referred to supra, that the Disciplinary Committee committed no error. The facts clearly showed that the Appellant and his representatives did not present themselves at the hearing of 11:30 hours. The Appellant’s Representatives did not contact the committee to advice that they were delayed. The hearing proceeded in their absence as it ought to have. The National Employment Council for Motor Industry Disciplinary Committee was also very correct in accepting the Respondent version over the Appellant’s version of what transpired on the day. There was also no cogent reason tendered by the Appellant Representatives for refusing to have the evidence of CCTV footage led if indeed they were telling the truth as to when they had arrived at the venue of the hearing.

It is also clear that the Appellant by failing to attend the hearing waived his right to challenge the disciplinary proceedings and the findings made. This principle was laid in David Moyo vs Rural Electrification Agency SC 41/14 also referred to by the Respondent, where the Supreme Court stated as follows at page 2 of the judgment:

“… The Appellant by deliberately absenting himself without leave from the hearing waived his right to challenge the conduct of the disciplinary proceedings.”

This position has been reiterated over the years by the Supreme Court. In Zesa Enterprises v Stevawo SC 61/16 where MALABA DCJ (as he then was) at p. 5 stated that:

“Where a person wilfully defaults from attending a hearing, he or she would have waived the right to challenge the conduct of the proceeding”.

That really ought to be the end of this matter.

In the result the appeal be and is hereby dismissed with no order as to costs.