Langton Mugariwa v Cochrane Engineering (Private) Limited

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/ 316/2024
HARARE 11 JULY 2024 01 AUGUST 2024
CASE NO LC/H/468/24
LANGTON MUGARIWA
APPLICANT
COCHRANE ENGINEERING (PRIVATE)
LIMITED
RESPONDENT
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MUSARIRI, J:

Applicant applied to this Court for the review of his dismissal from employment by Respondent. The application was made in terms of Section 89(1) of the Labour Act Chapter 28:01 as read with Rule 20(1) of the Labour Court Rules, 2017. Respondent opposed the application.

The grounds for review were due thus:

“The Works Council a quo outrageously erred, misdirected itself and/or committed a gross irregularity when it passed a “decision” in an Appeal between the Applicant and the Respondent without giving reasons.

: A letter furnished to the Applicant on the 12th APRIL 2024 does not constitute and/or qualify to be a decision both in terms of its substance and form. In substance, it does not state the reasons for the decision and in form it is in all respects a mere letter informing the parties of the existence of a decision.

2. The works Council a quo erred in passing a decision which is bad at law for want of reasons, thus being a legal nullity.

The impugned document is a letter dated 12 April 2024 written to applicant by respondent. It subject is referenced as
 ‘Outcome of Appeal Hearing in the matter between L Mugarìwa and Cochrane Engineering Pvt Ltd.”

It has 3 paragraphs both the relevant one reads

“We write to kindly advise that the Works Council closely analysed submissions given by both parties at the appeal hearing and decided to uphold the verdict and penalty of the Disciplinary Committee. The Works Council was convinced that according to the evidence from the disciplinary hearing record, the employee was guilty of violating category D(c) of the code of conduct envisaged in SI 107 OF 2022 (Collective Bargaining Agreement for Engineering Iron and Steel Industry) based on the principle of balance of probabilities used by the Disciplinary Committee.”

As indicated above applicant argued that the ruling is a nullity for want of form and substance. Respondent countered through its opposing affidavit as follows;

“4. A proper reading of Annexure 1 to the Application clearly shows its decision. The document in clear terms showed what it was. The Reference clearly reads the Outcome of the Appeal Hearing in the matter between L, Mugarìwa & Cochrane (Pvt) Ltd.

5. Further the first paragraph gave an Introduction of the appeal and the date it was heard. The second paragraph is where the decision of the Works Council lies. It is clear that the Works Councils Council analysed the evidence and it was convinced by the evidence before the disciplinary committee that the Applicant was guilty of a misconduct. The Works Council made it clear that the Applicant was found guilty based on the principle of balance of probabilities which was applied by the Disciplinary Committee.

6. Form 9sic) that decision it is apparent that the Works Council did consider the Appeal by the applicant. The Appeal was dismissed and its decision and reasons were communicated to both parties.”

Both in his heads of argument and oral argument applicant relied on the case of Gwaradzimba v Petron SC 12/16

Per Garwe JA at Para (26)

“Consequently the failure by the court a quo to specifically determine the question whether or not the application was properly before it, its fact acceptance that this was the position and the consequent failure on its part to give reasons why it had proceeded to deal with the substantive issues in light of the preliminary point taken, vitiated the proceedings.”

It is clear that the Gwaradzimba case dealt with a failure to determine a preliminary point. That is distinguishable from the present case where the Works Council determined the main issue whether to uphold or reverse the decision of the Disciplinary Committee. As for its reasons, the Works Council adopted the reasoning of the Disciplinary Committee. That is apparent from its afore-quoted letter to Applicant dated 12th April 2024 whose penultimate paragraph reads,

“…The Works Council was convinced that according to the evidence from the disciplinary hearing record, the employee was guilty of violating category D(c) of the code of conduct envisaged in SI 107 of 2022 (Collective Bargaining Agreement for Engineering Iron and Steel
 Industry), based on the Principle of balance of probabilities used by the Disciplinary Committee.”

In other words, the Works Council concluded that the Disciplinary Committee properly assessed the evidence using the correct principle. That may not be the fully developed judgment expected in a court of law but it suffices in workplace tribunals.

The Court is persuaded by respondent’s argument that the application is tantamount to an appeal disguised as a review. For the reasons discussed above, the application stands to be dismissed as devoid of merit.

Wherefore it is ordered that,

1. The application for review be and is hereby dismissed; and

2. Each party shall bear its own costs.

G MUSARIRI
J-U-D-G-E
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