Itai Katsande v OK Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/194/20
HELD AT HARARE 23 July 2020
CASE NO
JUDGMENT NO LC/H/194/20
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/194/20

HELD AT HARARE 23 July 2020				CASE NO LC/H/Rev/26/20

& 28 August 2020

In the matter between:

ITAI KATSANDE					Applicant

And

OK ZIMBABWE LIMITED				Respondent

Before The Honourable Murasi, J

Applicant						In Person

For Respondent					Mrs. R.T.L. Matsika

MURASI J:

This is an application for review.

Background

Applicant was in the employ of the Respondent as a baker. During the course of this employment he was charged with misconduct. As can be gleaned from the ‘Charge Sheet’, Applicant was charged with ‘Absenteeism’ in terms of Group IV Offences, Section 1 of the Code of Conduct ‘Absence from work for seven (7) or more working days without reasonable excuse’. It was alleged that he had not reported for duty during the period extending from 10 October 2019 to 20 October 2019. A letter suspending the Applicant from duty without salary and benefits was issued by Respondent on 21 October 2019.

Preliminary hearings of the matter were held on 6 November 2019. Applicant raised the issue of the absence of jurisdiction in that hearing. The Designated Officer made the following determination:

“In response to your submissions, kindly note that the usage of the code for the Commercial sector is without question as all our Bakery staff fall under that sector hence the charge was accordingly correct.”

The Designated Officer referred the matter to the ‘Employer’, one Mr. Mutizhe in a Memorandum dated 6 November 2019. Mr. Mutizhe proceeded to hear the matter on 29 November 2019. Applicant’s legal representative raised the issue of jurisdiction in that hearing. The findings of the Hearing Officer in respect of the jurisdictional issue raised were as follows:

“You argued that you should have been charged under the Food and Allied Industries Code.

Your Contract of employment you signed with OK Zimbabwe shows that you fall under the Commercial Sector of Zimbabwe.

You did not provide any contract to suggest that you were employed by under Food and Allied Industries.”

The employer proceeded to dismiss the Applicant.

Grounds for review

Applicant’s grounds for review are couched as follows:

“There was gross irregularity in the proceedings or decision of which the Applicant seeks review in that:-

The code of conduct that used to conduct the disciplinary proceedings was not the applicable code of conduct and Applicant was prejudiced by the application of the said code of conduct.”

After the closure of oral submissions on the hearing date I subsequently requested the parties to make further submissions on the following issues:

The grade in which the Applicant was placed.

The CBA which shows the appropriate grade.

The salary which was payable to the applicable grade.

The salary that was paid to the Applicant accompanied by the requisite evidence.

Both parties complied and filed supplementary submissions on the above issues on 29 July 2020. In my determination, I will therefore consider all the submissions filed by the parties.

Applicant’s submissions

Applicant submitted that the code of conduct that was used in the misconduct proceedings was not applicable to him. He stated that as he was employed as a baker, the Code of Conduct for Commercial Sectors was the wrong one and the correct code was the Food and Allied Industries Code. He further submitted that his position of ‘baker’ was not defined in the Second Schedule of the CBA for the Commercial Sectors. Applicant further argued that the definition of ‘cook’ given in the CBA for the Commercial Sectors could therefore not apply to him. Applicant further stated that Statutory Instrument 22 of 2013 which was the CBA for the Food and Allied Industries clearly defined the positions of ‘baker’ or ‘confectioner’. He further argued that notwithstanding the fact that Respondent was engaged in commercial activities, his activity was that of baking.

Applicant further submitted that he was prejudiced by the use of the Code of Conduct for the Commercial Sectors in that he was subsequently dismissed from employment whilst the CBA for the Food and Allied Industries did not provide for dismissal. In his supplementary submissions, Applicant reiterated the same facts and attached his contract of employment and payslips. He pointed to the fact that payslips did not indicate the CBA which was applicable to him. Paragraph 7 of the supplementary submissions reveals the following:

“Section 2 of the Collective Bargaining Agreement for the Commercial Sectors is very clear that the agreement applies to all employers in the commercial sectors and all employees in the commercial sectors whose occupations are listed in the second schedule. The second schedule does not provide for the occupation of a Baker or Pie Maker. These are occupations graded under the Collective Bargaining Agreement for the Food and Allied Industries (Baking Subsector) SI 22/2013.”

Respondent’s Submissions

In its response filed of record, Respondent submitted that there was no dispute regarding the fact it was registered as an employer in terms of the CBA for the Commercial Sectors. It was also submitted that the terms ‘employer’ and ‘employee’ were clearly defined. As far as ‘employee’ was concerned, Respondent submitted this was defined as:

“an employee as defined in the Act, who is employed by or working for any employer in the Commercial Sectors of Zimbabwe, who receives or is entitled to receive any remuneration in respect of such employment works.” This, it was argued, included the Applicant.

In oral and written submissions, Mrs. Matsika submitted that the CBA for Commercial Sectors applied to the Applicant and that the latter had taken a narrow definition of the word ‘cook’ as defined in the CBA. She pointed out that as stated in the Notice of Response, the word ‘cook’ was clearly defined and included a person who prepared farinaceous dishes. She further pointed out that the English Dictionary defined ‘farinaceous’ as “consisting or made of starch, such as bread, macaroni, and potatoes.” She said this included the Applicant. In her Supplementary heads of argument, Mrs. Matsika referred to precedent to buttress her point that the dominant activity of an enterprise should be considered when determining the issue. She further submitted that Respondent was engaged in retailing as its dominant activity and baking was ancillary to the dominant activity. Mrs. Matsika stated that in interpreting statutes where there seemed to a conflict, courts should always interpret the statutes in order to reconcile the apparent conflicting provisions.

The Issue

The issue to be determined by this Court is the correct Collective Bargaining Agreement that governed the employment relationship between Applicant and Respondent. This will clarify at what Code of Conduct was supposed to be used in the disciplinary hearing.

The Contract of Employment

Both parties attached the contract of employment to their submissions. There is no dispute in this regard as to what was the correct employment contract. Clause 1 of the contract of employment provides as follows:

“The Employee shall be employed in the position of Baker at the Employer’s Central Bakery Branch. The position falls into Grade 6. It is hereby recorded that the salary and other conditions of employment stipulated herein are commensurate with that grade.”

A reading of the above shows that where Applicant was employed was a Branch of Respondent. In other words, it was not to be regarded as a standalone entity.

Clause 4.1 provides:

“The Employee’s normal hours of employment shall be determined by the Branch/Unit management in line with the in terms of the National Employment Council of the Commercial Sector’s Agreement…”

This clause refers to the NEC for the Commercial Sectors as governing the working hours of the Applicant. I should point out at this stage that Applicant does not in any way make reference to this clause as mentioning the NEC for Commercial Sectors in his contract of employment. What is therefore gleaned from this provision is that Applicant was made aware as at the date of signing the contract of employment that his working hours were governed by the CBA for the Commercial Sectors.

Clause 9 of the contract of employment provides as follows:

“In the event that the Employee is suspected of having committed an act of misconduct, disciplinary proceedings shall be instituted against him or her in terms of the applicable Code of Conduct. A copy of the Code of Conduct shall be provided to the Employee at the time of signing this agreement.”

Two issues emerge from the above provision. The first is that Applicant was made aware of the ‘applicable Code of Conduct’ on the date of signing of the contract of employment. The second is that he was provided with a copy of the ‘applicable Code of Conduct.’ Applicant apparently remains mute as far as these provisions are concerned. Applicant does not make any submissions in this regard. Applicant does not deny that he was ‘made aware’ of the provisions. He also does not deny that he was ‘provided with a copy’ of the applicable Code of Conduct. What is apparent from the record is that Applicant signed this employment contract and attaches it to his submissions. The only reasonable conclusion that can be arrived at is that Applicant was aware of Clause 9 and its provisions. The attendant conclusion is that he knew what the ‘applicable Code of Conduct’ was when he signed the contract of employment. He is thus estopped from stating that the ‘applicable Code of Conduct’ did not apply to him.

In the result, I am of the view that the CBA for the Commercial Sectors applied to the employment relationship between Applicant and Respondent. Respondent was therefore correct in utilising the ‘applicable Code of Conduct’. The application ought to be dismissed.

The following order is appropriate.

The application for review be and is hereby dismissed.

Each party to meet its own costs.

Wintertons-		Respondent’s legal practitioners.