John Mugumisi v National Foods Logistics (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/51/2022
HARARE, 14 FEBRUARY 2022 &
11 MARCH 2022
CASE NO LC/H/355/21
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/51/2022

HARARE, 14 FEBRUARY  2022 &		   CASE NO LC/H/355/21

11 MARCH  2022

In the matter between:-

JOHN MUGUMISI						APPLICANT

AND

NATIONAL FOODS LOGISTICS (PRIVATE)		RESPONDENT

LIMITED

Before the Honourable Kudya J

For the Applicant		Mr S. Chirorwe (Legal Practitioner)

For the Respondent		Miss Sharon Pickup	(legal Practitioner)

KUDYA, J:

Two issues are the subject of this review. These are:-

Whether a referral to the company executive was unlawful and

Whether or not the court can order reinstatement.

The background of the matter is this:-  Applicant employers deadlocked during his disciplinary proceedings.  Their Code is silent on deadlock. The deadlock caused the employer to refer the matter to a company executive to cater for the deadlock.

The executive’s vote titled the scales in favour of the employee’s guilty verdict and dismissal.  The employee says it was not within the employer’s powers to act outside the Code and grant itself the powers that it assumed to cater for the equal votes dilemna. He reasoned therefore that the equal votes meant that the minimum standard of proof was not reached thus entitling him to reinstatement.

On the other hand the employer maintains that the lacuna in the Code was cured by section 4 which makes it clear that the Code is only a broad outline.  In its view it need not be strictly interpreted. The employer concludes that absence of a casting vote close in the Code does not translate to an evidentiary position to say that there was insufficient evidence led in the matter.

It is settled law that where there is a registered code of conduct such has to be followed to the letter.  In its absence revert is had to the Model code.   In the case at hand the respondent had a registered code of conduct. It would thus not be amiss to conclude that the legislature intended it to cater for the disciplinary proceedings including voting rights.  For respondent to go outside the Code and create new law is irregular. Granted, Codes are made by  laymen but they ought to be  followed to the letter not to be changed willy nilly as the employer sought to do by introducing extra voting rights which had been non existent in the Code.

The court is satisfied that the referral was therefore irregular and could not stand the test of time.  The first ground being well founded should succeed.

Reinstatement

Having concluded that it was not proper for the employer to make new law vis voting rights the question which remains is:-  What does that mean for the deadlock position.  It is settled law that labour matters by their civil nature require proof on a balance of probability. See ZESA v DERA 1998 (1) ZLR 500(6).  Based on the facts at hand the deadlock seems to suggest that the minimum standard was not met. In that regard the status quo has to be reverted to that is appellant is to be reinstated until proper due process is followed.  See ZUPCO v Mashinge SC 21-21.  In the ultimate the reinstatement properly succeeds.

IT IS ORDERED THAT

Application for review being merited it be and hereby succeeds.  Guilty verdict and dismissal penalty are set aside and in their place applicant is reinstated to his original post   without loss of salary and benefits, or is to be paid damages in place of reinstatement if reinstatement is no longer possible.  Each party bears own costs.

Chirorwe and Partners, Applicant’s Legal Practitioners

Lunga & Associates, Respondent’s Legal Practitioners