Livingstone Maukazuva v Concorde Clothing

### Preamble
IN THE LABOUR COURT
JUDGMENT NO. LC/H/491/2013
HARARE, 3 & 11 OCTOBER 2013
CASE NO.
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IN THE LABOUR COURT 			            JUDGMENT NO. LC/H/491/2013

HARARE, 3 & 11 OCTOBER 2013		                       CASE NO. LC/H/631/2013

In the matter between:-

LIVINGSTONE MAUKAZUVA			          -		Appellant

And

CONCORDE CLOTHING		              	         -	         Respondent

Before The Honourables 	F.C. Maxwell: Judge

E. Muchawa: Judge

For Appellant 	-	 In person

For Respondent	-	Machimbira R (Human Resources Manager)

MAXWELL F.C.:

This is an appeal against a decision of the National Employment Council for the Clothing Industry Appeals Board’s decision to uphold the Grievance and Disciplinary Committee’s decision to dismiss the Appellant.

The appeal is premised upon six grounds which raise issues including

that the memo Appellant is accused of failing to use in reconciling wages came to Respondent Company after Appellant was no longer responsible for the human resources function.

that the job description accepted by the National Employment Council Appeals Board as evidence was not authentic as it did not bear Appellant’s signature, rate of pay and probation periods.

that it was not Appellant but the Managing Director , Accountant and wages clerk who were solely responsible for wages.

that the Grievance and Disciplinary Committee and the Company appointed arbitrator violated Statutory Instrument 132 of 1994 when they look 21 working days to settle an internal Labour dispute against the expected 14 working days stipulated by the code.

In response the Respondent highlighted that Appellant is the one who prepared the job description he is now disowning.  This he did at the invitation of the General Manager following a meeting between the two in which they agreed on the scope of Appellant’s job.

On 7 December 2010 Appellant wrote to the wages clerk through an internal memorandum to effect a 33% wages adjustment.  He indicated in that same memorandum that reconciliation will be effected when circulars are distributed resulting in adjustments upwards or downwards.  On receipt of a National Employment Wages Circular no reconciliation was done and Appellant did not advise Management of the gazetted wage resulting in financial prejudice to the Respondent.

Respondent prays for the dismissal of the appeal for lack of merit.

At the hearing of the matter Appellant raised a point in limine objecting to the appearance of Mr R. Machimbira as the Human Resources Manager for Respondent.  According to Appellant Mr Machimbira was a consultant and therefore has no right of audience before the court.

Mr Machimbira pointed out that he had been engaged by Respondent with effect from the 2nd of August 2013 as a group Human Resources Manager.  His portfolio incorporates Concorde and Raffles Fashions.  Appellant insisted with his objection and Mr Machimbira was requested to prove that indeed he is employed by Respondent.  The matter had to be stood down to the following day for this purpose.

At the resumption of the matter Mr Machimbira produced documents from Concorde including his contract of employment.  Appellant was satisfied and the parties made submissions on the merits of the matter.

Appellant elaborated on his grounds of appeal.  He submitted that the Circular in question was dated 17 February 2011.  He had been suspended on 9 February 2011 and was dismissed on 18 February 2011.  Therefore he cannot be held responsible for actioning the circular which was received on 25 February 2011 as he was out of the company by then.  He further submitted that Respondent is creating the impression that the post of Human Resources Manager was created on 17 March 2009 when the job description was signed.  He submitted that this is not correct as he was receiving wages for that post as far back as 3 October 2008 as evidenced by his payslip.

Appellant also denied responsibility for reconciling the wages after the National Employment Company Wages Circular.  He alleges that he had been relegated to working in the factory for 6 months and was no longer in human resources.

Respondent gave the background of the appointment of the Appellant to the human resources function.  Appellant had been the custodian of human resources function in Bonar Industries (Pvt) Ltd.  In 2009 Respondent acquired Bonar Industries and Appellant was identified as a candidate for the human resources function for the combined Companies.  This is the reason for the meeting between the Appellant and the General Manager which resulted in Appellant drafting his job description.

Respondent further submitted that the responsibility of advisory function on wages resided in the job description of the Appellant.  This is confirmed by the wages issue requisitions he used to write.

Appellant as head of human resources would utilize the services of his subordinates, the wages clerks, who would be purely recipients of instructions.  The integrity and correctness of the figures remained the responsibility of the Human Resources Manager as confirmed by the job description.

Moreover the job description in question is on the computer which was being used by the appellant.  Information Technology consultants have confirmed that it is not possible to alter the date a document is created on the system.  What can be tempered with is the date that would be reflected on the printed document.

Appellant confirmed that he was the author of the wages issue requisitions.  He however claimed that the requisitions were merely in line with the Collective Bargaining Agreement and did not involve or require the advisory function.

A number of questions must be answered in this appeal.

Was the appellant the author of the job description?

The job description reveals that the Appellant had the responsibility of advising line management on issues about pay and conditions of service.  If Appellant is its author, he cannot be heard he say that it was not his responsibility to ensure that reconciliations and adjustments were done to wages after the National Employment Council Circular on wages became available.

Appellant denies being the author of the job description even though it is on the computer he was using.  He challenges its authenticity on the basis that there is no copy bearing his signature.  The onus therefore is on the Respondent to prove that Appellant was the author.  The standard of proof is as stipulated in the case of Insing Investments (Pvt) Ltd v Cotton Company of Zimbabwe Limited H-H-440-2012.  On page 7 Zhou J stated.

“The standard of proof in a case of this nature is commonly referred to as proof on a balance of probabilities Lord Denning formulated the standard of proof in the case of Miller v Minister of Pensions [1947]2 ALL ER 372 at 374, as follows:  “It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not”

Respondent submitted that Appellant crafted the job description after a meeting with the General Manager.  The same job description is on the computer Appellant was using.  Respondent went to the extent of engaging Information Technology experts to confirm that no one had tempered with the documents on the computer Appellant was using during his employment.  The court is of the view that it is more probable that Appellant is the author of the job description.

Was it Appellant’s responsibility to reconcile and adjust the wages after the National Employment Council Circular on wages became available?

Appellant denies responsibility and argues that this was within domain of the management.  According to him human resources only received instructions from management.  Contrary to this, the wages requisitions Appellant was writing gave instructions to the wages clerk on wage issues.  Moreover he is the one who had given instructions to the Wages Office to

“increase wages across the board by 33,63%.

In addition, pay 1 Day basic Back pay of 01/12/10”

(from memo dated 7 December 2010 on page 48 of the record).

Appellant notified the wages office in the same memo that

“This is an Interim Increase arranged internally and reconciliation will be effected when circulars are distributed# that is plus or minus whichever is greater”

The court is satisfied that Appellant had the responsibility to do the reconciliation after the National Employment Council Circular on wages became available.  The Court is not convinced by his argument that he was merely performing functions in line with the collective bargaining agreement which did not involve the advisory function.

Did the Grievance and Disciplinary Committee and the Company appointed  arbitrator violate SI 132/94 by taking 21 working days to settle an  internal Labour dispute against the expected 14 working days stipulated by the code?

The matter is coming before this court for a second time after an order that

The matter is referred back to the disciplinary committee to hear the matter de novo within a reasonable time, calling evidence on the job description of the Appellant and the role he played in relation to the roles of the wages clerk and the accountants who dealt with the wages issues”

The Appellant’s complaint therefore should be related to the rehearing after the court order.  The court ordered the hearing of the matter de novo “within a reasonable time”.  The question to ask is whether the rehearing was within a reasonable time.  Documents in the record reveal that the answer to that question should be in the positive.  On 4 February 2013 Respondent wrote to Appellant in connection with the court order.  Appellant was reinstated, suspended and invited for a rehearing on 20 February 2013.

Minutes filed of record dated 27 February 2013 indicate that the hearing had been adjourned and was therefore continuing on that date.  On the same day the committee issued its findings and determination which Appellant accessed that day.  On 1 March 2013 Appellant noted an appeal with the Company Arbitrator.  On 5 March 2013 the Arbitrator issued his determination which was collected the following day presumably by the Appellant.  The Court is of the view that Respondent substantively complied with the order to hear the matter de novo within a reasonable time.

Accordingly it is ordered that

The appeal be and is hereby dismissed.

Each party shall bear its own costs.

…………………………………….

Maxwell J

…………………………………… I agree

Muchawa J