Josphat Chikwengo v Zimbabwe Power Company (Pvt) Ltd

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/276/2016
HARARE, 17 MARCH 2016
CASE NO.
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THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/276/2016

HARARE, 17 MARCH 2016    		         	CASE NO. LC/H/1111/15

AND 6 MAY 2016

In the matter between:-

JOSPHAT CHIKWENGO							Appellant

And

ZIMBABWE POWER COMPANY (PVT) LTD				Respondent

Before Honourable P. Muzofa, Judge

For Appellant		C. Muchichwa (NEWUZ Law Officer)

For Respondent		H. Mutsauki (Legal Officer)

MUZOFA, J:

The appellant was employed by the respondent based in Bulawayo.  He was dismissed from employment for being absent without authority and dishonesty.

According to the respondent the appellant was absent from duty from 18 May to June 2015 without authority. Respondent made efforts to locate the appellant to no avail.  On 11 June 2015 appellant’s salary was ceased, maybe appellant got wind of that development, he then reported for duty on that day.

Appellant submitted sick notes issued by a DR Dzvairo who was based at Mpilo Hospital, recommending that appellant take some bed rest.  The respondent unconvinced at the appellant’s condition conducted some investigations on the authenticity of the sick notes.

It was discovered that the notes were indeed authored by DR Dzvairo but Mpilo Hospital indicated that there were no records that the appellant was attended at the Hospital.

As a result of the findings the appellant was charged in terms of the respondent’s code of conduct for absenteeism and dishonesty in that he produced a fraudulent sick note.

A disciplinary hearing was set to be held on 30 June 2015.  No hearing took place after appellant’s representatives raised some objections.  The matter was postponed to the following day 1 July 2015.  The matter did not take off again due to objections by appellant’s representative.  Thereafter two more dates were set for the hearing on 6 and 21 July 2015 respectively.  On both occasions the hearing did not take off due to objections by appellant.  These postponements were by consent.

Eventually the 4th of August 2015 was set as the date of hearing.

The disciplinary committee was composed of three workers’ representatives, three management representatives and a chairman.

On the 4th of August the three workers’ representatives did not turn up for the hearing.  They had advised the chairman on the same day that they were not attending the proceedings since the matter had been referred to a labour officer in terms of section 18 (f) of the Zimbabwe Energy Industry Code “ the Code”.

The appellant and his representative did not turn up for the hearing.

The disciplinary committee resolved to proceed in the absence of the three worker’s representatives and in the absence of the appellant together with his representative.

The committee heard the case found appellant liable and discharged him from employment.

The appellant has approached this court on appeal.  Two grounds of appeal were raised which raise the following issues.

Whether a referral in terms of section 101 (6) of the Labour Act ousts the jurisdiction of the employer to conduct disciplinary proceedings.

Whether the disciplinary committee was properly constituted in terms of the applicable Code and the appropriateness of the dismissal penalty.

A point was taken for the respondent that the appeal was improperly before the court in that the appeal was against the appeals’ committee’s decision.  The appeals’ committee was ZESA Holdings and not Zimbabwe Power Company which is a subsidiary.  Appellant argued that the code only created an appeals committee it does not provide that ZESA Holdings is the appeals committee.

I am persuaded by the appellant.  Section 10 of the Code sets out the composition of the appeals committee.  In the absence of a clear provision in the Code that the appeals body shall be ZESA Holdings, I am unable to accept the respondent’s submissions.  The Code is clear who constitutes an appeals body.

In casu the appeals committee was composed of personnel from different subsidiaries of ZESA Holdings.  The employer remains the respondent and so are the decisions of the appeals committee.  The point taken for the respondent cannot succeed.

I will address the grounds of appeal in turn.

The employer’s jurisdiction after a referral to a Labour Officer

Section 18 (f) of the applicable code provides

“After the expiry of the 30 working days, the matter shall be dealt with in terms of the Act.”

It was alleged the matter was referred to a Labour Officer in terms of that section.  Consequently the referral was in terms of section 101 (6) of the Act which provides;

“If a matter is not determined within thirty days of the date of the notification referred to in paragraph 2 of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

In Watyoka v ZUPCO SC 87/05 the court discussed the import of section 101 (6) of the Act.  The section should be read as permissive rather than restrictive.  The rationale of the legislature is to ensure that neither party can benefit from frustrating the proceedings beyond the thirty days.  So it is optional for the aggrieved party to refer a matter.  The section itself does not specifically oust the jurisdiction of the employer.    The employer is at liberty to discipline its employee as confirmed by the Supreme Court in the case of Tirivangana v University of Zimbabwe SC 21/13.

In my view in casu the purported referral to a labour officer did not oust the respondent’s jurisdiction to deal with the matter for two reasons.  Firstly there was no proof that a referral was made.  The Chairman was only advised by the workers’ representatives of the disciplinary committee that the case had been referred to a labour officer.  Secondly the postponements were by consent of both parties being occasioned by objections raised by the appellant.

To that extent the respondent had jurisdiction to proceed with the disciplinary hearing.

Composition of the disciplinary committee

It was submitted for the appellant that the disciplinary committee was not properly constituted in terms of Section 9 of the Code.  A disciplinary committee should be composed of three worker representatives, three management representatives, a secretary and a chairperson.

It is not in dispute that in casu the three worker’s representatives were not in attendance.  Technically the disciplinary committee was not properly constituted on that day.

The court cannot take an armchair approach and penalize an employer where it has complied with the code.

The respondent duly constituted a disciplinary committee, which I must say was to the appellant’s preference considering that most of the postponements were made due to objections on the composition of the committee.  The employer in this case danced too much to the appellant’s tune.

The worker’s representatives forgot that they were not defence lawyers but were part of the decision making body.  They were mandated as per order of the employer to attend the hearing and contribute to the decision.  They abrogated their duty.  This was a disservice first to the employer and secondly to the appellant.

The employer should not be held at ransom.

In Ramani v NSSA SC 38/03 a case on all fours with the one in casu the Learned Judge of appeal Ziyambi JA had this to say on such conduct by workers’ representatives.  In that case the workers’ committee representatives walked out of a disciplinary hearing in protest.  The judge had this say,

“They ought not to have done so.  Their presence on the disciplinary committee was to ensure that the interests of the accused employee are fairly represented and safe guarded ….  They have no power to veto or boycott proceedings of the committee.  If they had any objections these were to be made at the hearing and recorded the walk out by the worker’s representatives was calculated to frustrate the disciplinary proceedings.  They have no power to do so.  In view of the silence in the Code on the procedure to be adopted in such an eventuality the remaining members continued with the hearing and reached a conclusion.

The proceedings cannot in the circumstances be said to be a nullity.  This is not a case where the respondent acted in total disregard of the provisions of the Code of Conduct as was the case in Mugwebie v Seed Co Ltd and Another 2000 (1) ZLR 93 (5).  Rather in this case, the respondent did all that was necessary on its part to comply with the requirements of the Code.”

The position is clear and applies with equal force to this case.  Just like in the Ramani case the Code in this case does not provide for the procedure to be followed in the event of such unfortunate developments.

The disciplinary committee’s decision therefore was valid.

In any event there was no dispute that the appellant and his representative were advised to attend the hearing.  The two chose not to attend.  It is now settled that in such circumstances the employee is taken to have waived his right to be heard and his right to challenge the conduct of the disciplinary proceedings see David Moyo v Rural Electrification Agency SC 4/14.

The appellant also raised issue that the penalty of dismissal was too harsh in the circumstances.  This proposition was not substantiated in view of the penalties provided for in the Code.

Both offences that appellant was convicted on attract a dismissal on first breach.  It is difficult to appreciate what appellant implied by claiming the appeals committee erred in confirming the penalty of dismissal.

Clearly the second ground of appeal has no merit and should be dismissed.

Accrodingly the appeal be and is hereby dismissed.