Godfrey Demba v Chiredzi Town Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/MS/7/19
MASVINGO, 17 MARCH 2020
CASE NO
JUDGMENT NO. LC/MS/7/2020
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IN THE LABOUR COURT OF ZIMBABWE             JUDGEMENT NO. LC/MS/7/19

MASVINGO, 17 MARCH 2020                                         CASE NO LC/MS/15/19

AND 19 JUNE 2020

In the matter between:-

GODFREY DEMBA                                                                  Appellant

AND

CHIREDZI TOWN COUNCIL                                                 Respondent

Before Chivizhe, J (Sitting on Circuit in Masvingo).

For Appellant: 		Mr C. Zindimu (Trade Unionist).

For Respondent: 		Mrs G. T. Ndava (Legal Practitioner).

CHIVIZHE, J :

This is an appeal against the determination of Respondent Works Council sitting as an Appeals Committee which determination was handed down on the 20th November, 2019. The determination effectively upheld an earlier determination by the Respondent Disciplinary Committee finding Appellant guilty and imposing thereafter a dismissal penalty. The appeal is opposed.

BACKGROUND FACTS

The Appellant was employed as a Driver in the Engineering Department of the Respondent. The relationship between him and Respondent was governed under the relevant Code of industry for the industry being the Chiredzi Town Council, Code of Conduct as well as the Urban Councils Act, [Cap 29:15] and the Labour Relations Act [Cap 28:01].

On the 10th of September, 2019 the Appellant was notified that he had committed possible acts of misconduct. He was invited to submit a report in regards his involvment in union activites on that date. Appellant was subsequenlty served with a charge letter dated 10th of October, 2019. The allegations made were that Appellant had incited staff to complete union forms during working hours. He was also alleged to have distrubuted and collected such completed forms using council resources during working hours. The Appellant was also being charged with conducting union activities during working hours.

The Respondent was therefore levelling charges including;

Misuse of Council property

Forgery

Any act or conduct or omission inconsistent with the fulfillment of the express or implied conditions of his contract.

Unfair Labour Practice

Doing private business while on duty without permission.

The Appellant was arraigned before the Disciplinary Committee on the 8th of November, 2019. At the hearing Appellant pleaded not guilty to all the charges. He also raised prelimary issues that;

the charges had prescribed

that there had been unfair splitting of charges

that he had been personally charged with doing union business in circumstances where the Trade Union ought to have been charged

that the charges had been unlawfully preferred against him as he was allowed to conduct trade union activities at the work place.

The charges were vague and too general.

The preliminary issues were opposed by the Respondent.

The Disciplinary Committee handed down a ruling in which they found in relation to the preliminary points raised that (I) the hearing had not been conducted outside of the 14 day period (ii) the charges levelled were properly levelled as they existed in the Code of Conduct (iii) Appellant was charged in his personal capacity as the facts indicated that he was no longer Chairman of Trade Union, he was then only a sleeping member and as such the had no authority to act on behalf of the union (iv) the Appellant was properly  charged as he was conducting union business during working hours without authorisation (v) the charges levelled were otherwise very clear – in other words they were not vague or too general. The Disciplinary Committee advised Appellant that it was proceeding to hear the matter on the merits. The Appellant opted at that stage to walk out in protest with his Legal Representative. The Legal Representative advised the committee that he was going to seek review of proceedings before the Labour Court.

The hearing proceeded in Appellant’s absence. The Respondent led evidence from three witnesses. After receiving and considering the evidence the Disciplinary Committee found the Appellant guilty on all the charges levelled. A penalty of dismissal from employment was consequently imposed. The matter was referred on review to the Town Secretary who in a letter dated 12 November 2019 advised that he concurred with the findings of the Disciplinary Committee on conviction. The Town Secretary then confirmed the imposition of dismissal penalty with immediate effect. The Appellant was dissatisfied and noted an appeal with the Works Council.

The appeal was noted on the basis of six grounds. I find it convenient to reproduce the grounds which where were as follows;

The Disciplinary Committee erred and misdirected itself by hearing a matter when it had prescribed. The Notice of Breach was done on 10th September 2019 and the matter was supposed to be dealt with within 14 days in terms of Section 6 subsection 6 of the Code of Conduct.

The Disciplinary Committee erred by allowing improper splitting of charges, which is an unfair Labour practice because all the five counts emanate from the same incidents and facts.

The charges are not supported by the Chiredzi Town Council Employment Code of Conduct at all.

The composition of the Disciplinary Committee included a Legal Practitioner for the Disciplinary Committee which is not provided for in the Code.

The Disciplinary Committee was biased for it became a Judge in its own cause. One member of the Disciplinary Committee, Ms Mutsetse, doubled as the Prosecutor for the Complainant which is wrong.

The Appellant’s right to be heard on review was arbitrarily taken away by the Disciplinary Committee when it refused Appellant to be heard on review by the Labour Court before proceeding to the merits, which is a basic right.

The Works Council after sitting to consider and delibrate on the grounds of appeal handed down a determination dismissing the grounds of appeal and confirming the conviction as well as the penalty of dismissal from employment. Aggrieved the Appellant then noted an appeal as well as an application for review of the proceedings and determination by the Works Council. This court is seized only with the appeal.

THE APPEAL

The appeal has been noted in terms of section 92 D of the Labour Act as read with section 20 (7) of the relevant code of conduct. The appeal has been noted on the basis of the following grounds of appeal;

The Works Council erred by not finding that Appellant never, at any time, including the alleged dates, conducted himself in any way that is contray to his contractual obligations.

The Works Council erred in not finding that Appellant never engaged in any private business whilst on duty as no evidence to that effect was adduced at the hearing.

The Works Council erred in not finding as both unreasonable and unsustainable, Appellant’s conviction on allegations that he committed any unfair labour practice.

The Works Council erred in upholding the allegation that Appellant misused Council property as there was no cogent evidence produced to support such allegations.

The Works Council should have found the Disciplinary Committee verdict and penalty to have been grossly irregular, harsh both procedurally and substantively.

The Respondent in its Notice of Response is attacking the appeal grounds on the basis of two main reasons. Firstly, that the grounds of appeal, being raised before this court, are materially different from the grounds raised before the Work Council on the basis that Appellant is raising fresh issues before the court. The second reason is that in any event the grounds of appeal raised are hopeless as the Appellant was properly convicted on all the charges levelled.

Both parties made oral submissions before the court. Mrs Ndava, for the Respondent, emphasized on the fact that fresh issues were being raised before the court which issues were not raised before the Works Council. The court was urged to dismiss the grounds as improperly raised before it. Mrs Ndava however noted that although one of the ground, being ground number (iii) was raising an issue of law, as to whether it was logical for the Works Council to have found Appellant gulity on the charge of Unfair Labour Practice, her attitude was that in any event Appellant was properly found guilty of the charge as it is outlined in section 32 page 19 of the Code of Conduct.

Mr Zindimu, for the Appellant, submitted that all the grounds of appeal were properly raised before the court. Not only was there an unfair splitting of the charges as all the charges were emanating from one allegation of Appellant having completed union forms during working hours, the Appellant had also been unfairly found guilty of the charges as no evidence had been led to substantiate the charges. He also submitted that the Disciplinary Committee had exceeded its mandate in dismissing Appellant in clear violation of section 19 (3) of the Code of conduct – which provision requires Disciplinary Committee to only recommend penalty to Works Council. In regards to the specific charges of misuse of council property that charge had been unsubstantiated. On the charge of doing private business, even assuming Appellant had indeed been found distrubuting union materials this could not be regarded as private business as he was entitled to participate in trade union business under the provisions of section 65 (2) of the Constitution as well as under ILO Conventions that Zimbabwe is a party to such as Freedom of Association 87 and 97. In regards to Unfair Labour Practice it was illogical for the Works Council to have found him guilty of such a charge as no employee can commit such an act under the Labour Act [Cap 28:01]. The Appellant also contended the charge of forgery was not proved/established before the Works Council. Although the Disciplinary Committee had imposed the dismissal penalty there was however no penalty acredited to that charge under the code. The Disciplinary Committee had however erroneously categorised it under “Fraud”. In regards the charge of an act/conduct inconsistent with the fulfillment of the express/implied conditions of employment that charge was either non-existent or if it exists was unsubstantiated.

It would appear that this appeal ought to be clearly dismissed taking into regard the first point raised by Respondent. The Respondent has contended, correctly so, that the grounds raised by the Appellant, to the extent that the grounds were not grounds considered/determined by the Works Council there is no basis for challenging the findings/decisions of the Works Council. This is a principle that was clearly laid in Austerlands (Private) Limited vs Trade and Investment Bank & Ors 2006 (1) ZLR 372 where Chidyausiku CJ (as he then was) stated at p379 G-H;

“The Appellant also raised in its notice of appeal the ground that the court-a-quo failed to take into account the equates of the matter. The short answer to this submission, as was correctly submitted by the third Respondent’s Counsel, is that the court-a-quo was never asked to consider it to take into account those other consideration, nor were the factors placed before the court a quo. There is no basis for challenging the court-a-quo, for not having determined something that was never placed before it to determine. Accordingly this ground of appeal cannot succeed.“

It would appear from a perusal of the grounds of appeal as raised before this court that all the grounds save for ground no. 3, relate to issues that were not raised before the Works Council. By nature an appeal attacks specific findings of a lower tribuunal and that is premised on such findings. It is not open to the Appellant to seek to impugn the decision of the Work Council based on an issue that the council did not consider. It would follow therefore that all the grounds save for ground no. 3 are improperly taken before this court. They ought therefore to be dismissed.

With regards to grounds no. 3 however the Appellant is raising an issue of law which at law can be raised at any stage of the proceedings even at the late stage of an appeal. Mrs Ndava, for the, Respondent counsel also conceded to the point in hearing. The issue is whether it was competent for the Works Council to have charged and found guilty Appellant of an Unfair Labour Practice. In other words, can an employee ever be competently charged and found guilty of a Unfair Labour Practice?

The relevant charge which falls under clause 32 of the code is outlined as follows;

“32. UNFAIR LABOUR PRACTICE

As stipulated in the Labour Act for employees, Trade Unions or Workers Committee it includes victimisation, discrimination, repot-ism, favoritism and interference with each others affairs in the case Trade Unions/Workers Committee and Employer.

The provisions in clause 32 of the Code of conduct has to be read with the provisions in the Labour Act [Cap 28:01]. Part III of the Labour Act [Cap 28:01] outlines Labour Practices that can be committed by the employer (section 8) by trade union or workers committee (section 9). In section 10 the relevant Minister may prescribe any further acts or omissions as Unfair Labour Practice by way of statutory Instrument. To date there has been no such statutory Instrument promulgated. Although the title in section 8 refers to unfair labour practices by employer in its content however the section proscribes acts or omissions even by an employee as against another employee. Section 8 reads as follows

Unfair labour practices by employer

An employer or, for the purpose of paragraphs (g) and (h), an employer or any other person,

commits an unfair labour practice if, by act or omission, he-

(a) prevents, hinders or obstructs any employee in the exercise of any right conferred upon him

in terms of Part II; or

(b) contravenes any provision of Part II or of section eighteen; or

[Subsection amended by section 4 of Act 22 of 2001]

(c) refuses to negotiate in good faith with a workers committee or a trade union which has been

duly formed and which is authorized in terms of this Act to represent any of his employees

in relation to such negotiation; or

(d) refuses to co-operate in good faith with an employment council on which the interests of any

of his employees are represented; or

[Paragraph amended by section 37 of Act 7 of 2005]

(e) fails to comply with or to implement-

(i) a collective bargaining agreement; or

(ii) a decision or finding of an employment council on which any of his employees are

represented; or

[Subparagraph amended by section 37 of Act 7 of 2005]

(iii) a decision or finding made under Part XII; or

(iv) any determination or direction which is binding upon him in terms of this Act;

or

(f) bargains collectively or otherwise deals with another trade union, where a registered trade

union representing his employees exists; or

[Paragraph amended by section 37 of Act 7 of 2005]

(g) demands from any employee or prospective employee any sexual favour as a condition of -

(i) the recruitment for employment; or

(ii) the creation, classification or abolition of jobs or posts; or

(iii) the improvement of the remuneration or other conditions of employment of the

employee; or

(iv) the choice of persons for jobs or posts, training, advancement, apprenticeships,

transfer, promotion or retrenchment; or

(v) the provision of facilities related to or connected with employment; or

(vi) any other matter related to employment;

or

[Paragraph inserted by section 7 of Act 17 of 2002 and amended by section 37 of Act 7 of 2005]

(h) engages in unwelcome sexually-determined behaviour towards any employee, whether

verbal or otherwise, such as making physical contact or advances, sexually coloured remarks, or displaying pornographic materials in the workplace.

The Constitutional Court in Greatermans vs Minster of Public Service Social CCZ 2/18 whilst referring to earlier decision by the same court in Boniface Magurure     &     63     Ors V Cargo     Carriers     International     Hauliers   Pvt)     Ltd     T/A Sabot restated that Unfair Labour Practice can be committed by an employer or employee. The court stated as follows;

“In Boniface Magurure and 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd t/a Sabot CCZ-15-16 the Court held that the Act only defines those labour practices which if proved would amount to unfair labour practices in violation of the constitutional right to fair labour practices.  These are acts committed as a matter of practice by an employer or employee contrary to what is required by the law to be done. For a person to allege an unfair labour practice as a violation of the right enshrined in s 65(1) of the Constitution, the conduct complained of must constitute one of the acts or omissions listed by the Act as unfair labour practices.” (my own underlining)

The above therefore answers the question of law raised by the Appellant in the positive. It must follow therefore that Appellant was properly charged and found guilty on the charge as it was a competent charge. Even assuming the court is wrong in taking this approach the record in any event shows that the Appellant was also found guilty of four other charges. A wrong finding on this point would not in any way alter the dismissal penalty imposed by the employer. It is also apparent from my reading of the record that the Appellant walked away from disciplinary proceedings. It is trite position at law that such a litigant is precluded from challenging the proceedings before the disciplinary committee and the decision. See David Moyo V Rural Electrification Agency SC 4/14.

The appeal must consequently fail. It is accordingly ordered as follows;

The appeal be and is hereby dismissed with costs.

Mangwana & Partners, respondent’s legal practitioners