Loid Mhanza v Unifreight Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/74/2014
HARARE, 27 JANUARY 2014
CASE NO LC/REV/H/70/2012
14 FEBRUARY 2014
JUDGMENT NO LC/H/74/2014
---------




IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/74/2014

HARARE, 27 JANUARY 2014 &		   CASE NO LC/REV/H/70/2012

14 FEBRUARY 2014

In the matter between:-

LOID MHANZA								APPLICANT

Versus

UNIFREIGHT LIMITED							RESPONDENT

Before the Honourable P Muzofa	:	Judge

For the Applicant	    L Chimutashu (Trade Unionist)

For the Respondent      Ms R RMutindindi (Legal Practitioner)

MUZOFA J:

This is an application for a review of the respondent’s decision to dismiss the applicant from employment.

The applicant was employed by the respondent in its engineering department. Following some alleged misconduct the applicant was charged for having engaged in disorderly behaviour and failure to carry out a lawful order in terms of the respondent’s Code of Conduct. A hearing was conducted and the applicant was subsequently dismissed. The applicant noted an appeal against the disciplinary committee’s findings to the Human Resources Director who dismissed the appeal. Thereafter the applicant lodged to this court an application for review. The ground of review is in the following terms:

“The respondent violated (sic) Labour Act [Cap 28:01] as amended by applying its unregistered Code, further violated ethics of natural justice and S.I 67/12 for the Transport Operating Industry.”

The application for review was opposed on the basis that the ground(s) of review do not state what exactly the respondent is said to have violated. In essence it was noted there are no grounds of review in so far as the violations are concerned. In respect of the Code of Conduct the respondent’s view was that since the applicant did not challenge the applicability of the Code of Conduct he therefore consented to its use. The respondent later filed supplementary heads of argument with annexures showing that the respondent’s Code of Conduct was actually registered in 2000. This evidence was not disputed before this court.

A perusal of the documents filed of record show that the respondent’s Code of Conduct was registered in 2000. A copy of a letter confirming this registration by the Ministry of Public Service, Labour and Social Welfare dated 15 June 2000 is filed of record. In view of this evidence this ground of review falls away, the respondent’s Code of Conduct was registered at the time the applicant was charged and eventually dismissed. In any event as rightly submitted by Counsel for the respondent an unregistered Code of Conduct may become part of the employment contract as an implied term provided it does not provide lesser rights than those provided in the Act or Regulations, See Colcom Foods Limited v Chatira S-135-00.

Counsel for the respondent also made submissions on whether in a case of an illegal work stoppage the respondent’s Code of Conduct is applicable. I do not believe the applicant’s thrust in raising the issue of the unregistered Code of Conduct was to imply that it was ousted by Part XIII of the Labour Act [Cap 28:01]. To my mind the challenge by the applicant was based on the belief that the unregistered Code of Conduct was not applicable by virtue of not being registered and not by reason of being ousted by the Labour Act. My reasoning finds support in para (f) of the applicant’s heads of argument which states:

“f.	The fact that the respondent letter (sic) sought for show cause order after terminating (sic) the applicant is a clear testimony that his action stood illegal until such a time he would have been granted a disposal order then he would have to act in terms of SI 67 of 2012 as his Code was not registered by then.”

Supposing the respondent’s Code of Conduct was registered according to the applicant then there would be no issue.

The applicant’s heads of argument also raised several issues that were not included on the grounds of review. The first additional ground relates to the adequacy of evidence led against the applicant. The court cannot address this ground since it is improperly before the court. A party cannot seek to introduce new grounds in the heads of argument, see Kadzere v Crystal Candy (Pvt) Ltd LC-H-16-09. In any event this is a ground of appeal and not a ground of review.

The second part of the grounds of review filed by the applicant is that the respondent violated ethics of natural justice. The concept of natural justice has been defined as a broad concept. In the case of FSI Holdings Ltd v Rio Tingo Zimbabwe Ltd &Anor 1997 (2) ZLR 31 SC, the court held that:

“The rules of natural justice are not limited to the audialterampartem and nemoiudex in suacausa rules. Natural justice is a manifestation of a broader concept of justice and fairness; it is fair play in action.”

Bearing in mind what constitutes natural justice, I will now address the issues raised by the applicant as evidence of violation of principles of natural justice.

That the applicant was given short notice

According to the applicant they were served with the notice to attend the hearing two hours forty five minutes before the said hearing. On behalf of the respondent, it was submitted that the applicant did not challenge the adequacy of the notice period before the disciplinary committee and subsequent appeals therefore he waived his right.

A perusal of the documents filed of record show that the charge sheet was prepared on 3 July 2012 inviting the applicant to a hearing on 6 July 2012 at 1015 hours. The applicant acknowledged receipt of the charge on 6 July 2012 at 0730 hours. There was no evidence on what the Code of Conduct provided for in terms of the time frames. Clearly this was a short notice. Indeed the applicant challenged the inadequacy of the notice before the Executive Director. It seems this issue was not addressed by the Director. Where a procedural irregularity is alleged, it must be shown that the party concerned was prejudiced by the irregularity. See TichawanaNyahuma v Barclays Bank SC-67-05.

In casu the applicant’s representative submitted that the applicant could not seek legal representation and prepare his defence. However, a perusal of the record of the disciplinary proceedings show that the applicant in response to the first allegations, indicated that, he could not deny the offence. He had attended the meeting since he was advised that one Mr Masuku was going to address the meeting. He did not think the meeting was illegal and that he was advised by a worker’s committee member.

To my mind the applicant was able to respond to the charge adequately. Apparently he admitted to both charges. That to me overshadows the complaint that the applicant was given inadequate notice. The bottom line is that he admitted that he attended the unauthorised meeting and that when he was required to write a report within a certain period he failed to do so. Can it be said the conduct of the respondent taken wholesome, the notice period and the admission is a violation of natural justice? I do not believe so. The applicant was given short notice but that on its own cannot vitiate the proceedings.

That the Applicant was not represented during the hearing

According to the minutes of the disciplinary hearing there was a chairman and a management representative only. There was no worker’s representative. However the same minutes indicate as follows:

“Workers committee representatives in the disciplinary committee refused to participate in the hearing. See attached minutes.”

Page 20 of the record is a record of minutes held between the worker’s representatives and management. The minutes show that the workers’ representatives indicated that they will not take part in the contemplated disciplinary hearings. Unfortunately this was prejudicial to the likes of the applicant.

As stated before natural justice is fair play in action. In this case, the respondent communicated its intention to conduct disciplinary hearings the workers’ representatives indicated they would not be part of the process.What was the respondent supposed to do?I believe it was proper for the respondent to proceed without the workers’ representatives, albeit to the prejudice of the likes of the applicant. Indeed everyone has a right to representation but where the supposed person to represent the other declines, that cannot be held against the other party. I do not believe there was a violation of natural justice in this instance.

In the circumstances and in light of what has been said above, I conclude that the application for review has no merit.

Accordingly, the following order is made:

The application for review be and is hereby dismissed.

There is no order as to costs.

Matsikidze&Mucheche, respondent’s legal practitioners