Jacob Dzauda & 10 Others v Fidelity Printers & Refiners (Pvt) Ltd

### Preamble
IN THE LABOUR OF ZIMBABWE
JUDGMENT NO LC/H/273/13
HELD AT HARARE 20TH JUNE 2013
CASE NO
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IN THE LABOUR OF ZIMBABWE			JUDGMENT NO LC/H/273/13

HELD AT HARARE 20TH JUNE 2013		CASE NO LC/H/198/12

JACOB DZAUNDA					Appellants

& 10 OTHERS

FIDELITY PRINTERS				Respondent

& REFINERS (PVT) LTD

Before The Honourable G Musariri, President

For Applicant			Mr P Mabundu, Attorney

For Respondent			Mr W Magaya, Attorney

MUSARIRI, G:

Appellants appealed to this Court against their dismissal from employment by Respondent.  Their attorney amended the grounds by deleting some and hearing two namely,

Respondent erred by substituting the penalty of a final warning with dismissal; and

Respondent erred in dismissing some employees whilst warning others for the same offence.

I am satisfied that Appellants failed to substantiate the second ground.  All the employees involved were dismissed from employment.  Thus one cannot really talk of discrimination or differential treatment.  The only difference pertained to one T Chakuvinga.  The Disciplinary Committee (DC) recommended demotions and warnings for all but Chakuvinga.  Respondent’s General Manager (GM) nevertheless imposed dismissals on all the employees.  Therefore they were effectively dealt with in the same manner.  Thus the plaint of discrimination cannot be sustained.

That leaves the first ground of appeal.  As noted above the General Manager substituted the Disciplinary Committee’s penalty with his own.  Appellants argued that the Disciplinary Committee made a decision which was improperly overturned by the General Manager. These matters are regulated by Respondent’s Code Of Conduct.  Appendix III of the Code sets out the procedure to be followed on allegations of serious or major misconduct.  Such allegations are initially investigated by the Head of Office.  If he is convinced that disciplinary proceedings are required he refers the matter to the Head of Personnel.  The latter conducts further investigations which in this case included a disciplinary hearing.  He is then required to submit a report to the General Manager together with his comments and recommendations.  Clause 4 provides that,

“The General Manager shall as soon as possible thereafter consider the

contents  of the misconduct report and consult with any other members

of Management  and/or Workers Committee before pronouncing a decision on the matter.”

(The underlining for emphasis is mine.)

It follows that the Disciplinary Committee is not empowered to make a determination.  Rather it is permitted to make recommendations to the decision-maker.  These were made.  Whether or not  they were considered is unclear on the papers.  If the recommendations were not considered that might found grounds for review.  Such is not available by way of an appeal.  Appellants chose to access this Court via an appeal rather than review.  Recommendations by their nature are not binding.  They may be considered and discounted.  That might well be the position taken by the General Manager.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT