M & M Scale v Sylvester Chakala

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/375/2014
HARARE, 20 MAY 2014
CASE NO. LC/H/375/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/375/2014

HARARE, 20 MAY 2014    		                         CASE NO. LC/H/657/13

AND 04 JULY 2014

In the matter between:-

M & M SCALE						Appellant

And

SYLVESTER CHAKALA					Respondent

Before The Honourable P. Muzofa, Judge

For Appellant 		-	Mr. R. Zinhema (Legal Practitioner)

For Respondent		-	Mr. K. Guteni (Trade Union Representative)

MUZOFA J:

This is an appeal against an arbitral award requiring the appellant to reinstate the respondent or in lieu thereof pay him damages.

The respondent was employed by the Appellant in 2001 as a security guard.  He rose through the different ranks until he became an Operations and Fore Court Manager a post he held at the time of dismissal.  During the course of his employment it was alleged that respondent had committed some acts of misconduct.  Subsequently the respondent was served with a letter of suspension dated 26 July 2011.  It is important that I set out the contents of the suspension letter being the charge as it is part of the subject of appeal.

“Contract of employment

Further to previous correspondence in respect of the above, we write to advise yourself that your contract of employment is hereby suspended with effect from the date of this letter … allegations of misconduct are stated as follows:

(a) Theft of 2000 litres of petrol product in which case it is alleged you did connive with DSRB Transport Drivers (namely Hastings Chitsinde and Taitos Sunzwe) to steal company property, namely 2000 litres of petrol from a consignment delivery that was received from South Africa on the 9th day of July 2011 as a result of which theft instead of the company receiving 39 484 litres of petrol on consignment No.261004 239010 only 38 310 litres were received and only 42 995 litres was received on consignment No. 26 1004240010 and not 44004 litres as expected.

And or alternatively

(b) Gross negligent performance of duty in that in your capacity as the operations/fore Court Manager you failed and/or neglected to take sufficient and reasonable measures to prevent theft of Company property in the circumstances above stated.

2. Conduct inconsistent with the faithful and honest discharge of your employment duties and unlawful use of Company vehicles. In that, for instance, on the 25th of July 2011 you lied to the company director – Mrs. Madzivanzira that you were at the service station whereas you were actually on another unknown location to which you had driven using company vehicle but without prior notification to your superiors.

3. Gross negligent performance of duty and failure to take instructions from the management in that you were instructed to process the purchase of Company Security Guard Uniforms some three months ago whereas up to this date you have not carried out the assignment.

Furthermore, more often, you neglected to obtain Ministry of Energy Fuel Licences as a result of which Fuel Trucks were delayed at the Border and in certain cases the company had to dispatch a delivery of documents to our Beitbridge clearing agents in order to avoid penalty charges from the transporters.”

Respondent was duly invited for a hearing and after the proceedings he was found liable and dismissed from employment.  Respondent thereafter filed a complaint with the Ministry of Labour the matter went for conciliation which failed.  Ultimately the parties appeared before an arbitrator.  After hearing both parties the arbitrator ordered that the Respondent be reinstated without loss of salary and benefits or in lieu thereof he be paid damages.  The Appellant then noted an appeal to this court.  The ten grounds of appeal raise the following issues.

Whether the Appellant used a Code of Conduct to dismiss the Respondent.

Whether the disciplinary committee was biased.

Whether the record of the disciplinary committee was a correct record of proceedings.

Whether there was adequate evidence before the disciplinary committee to convict the Respondent.

I will address the grounds of appeal in turn.

Whether the Appellant used a Code of Conduct.

Section 12(B) (2) (a) of the Labour Act [Chapter 28:01] deals with the issue of dismissals.  An employee is deemed to have been unfairly dismissed where the employer fails to demonstrate that he dismissed the employee in terms of an employment Code.

In casu the Respondent was charged but there was no indication which Code he had contravened.  The first charge as outlined earlier in this judgment is a charge of theft.  The Appellant did not deny that no code of conduct was cited.  Appellant’s argument was that the Arbitrator erred in interpreting Section 12 B (2) (a) of the Act restrictively.  A more liberal interpretation that considered the totality of the proceedings was supposed to be applied.  It was further argued that the Appellant did not have a registered code of conduct therefore it used the National Code.  In any event it was argued the totality of the proceedings against the Respondent were in compliance with the tenets of natural justice.  I find it difficult to agree with the Appellant.  It is incorrect for Appellant to claim that the Respondent was charged in terms of the National Code.  The suspension letter quoted before, in this judgment clearly shows that no code of employment was used.  The Act requires that an employment code be used in dismissing an employee.  The Labour (National Employment Code of Conduct) Regulations, 2006 (The Regulations) made in terms of Section 101 (9) of the Act provide in section 5.

“5 Termination of contract of employment No employer shall terminate a contract of employment with an employee unless –

the termination is done in terms of an employment code which is registered in terms of section 101 (1) of the Act or

in the absence of the registered code of conduct mentioned in (a) the termination in terms of the National Employment code of conduct provided for under these regulations.

The starting point in my view is the charge.  If the charge does not indicate in terms of which code of conduct the employee is being charged, the termination is not in accordance with the law.  The Appellant if indeed did not have a code of conduct, the law is clear the National Employment Code of Conduct can be used.  Appellant did not use the said Code.  It is difficult to understand on what basis Appellant claims to have used the National Employment Code, when the charge did not cite it.  The court cannot be persuaded to accept the Appellant’s argument.  There must be precision in charging employees.  In this case although it was not raised by the parties Appellant belongs to the Motor Industry.  The industry has a Collective Bargaining Agreement S.I. 35 of 2011 which regulates Appellant.  This could have being used.  In such instances the law is very clear.  Section 101 of the Act provides that a registered employment code shall be binding in respect of the industry, undertaking or workplace to which it relates.  Therefore the Appellant could not have preferred charges in terms of the national Employment Code of Conduct see Chikomba Rural District Council v Pasipanodya SC 16/12.  This argument has no merit.

The second part of the argument by the Appellant was that there was substantial compliance with the requirements of the tenets of natural justice.  This argument is untenable.  In my view the proceedings that were held are null and void.  The starting point is the charge.  The charge was in terms of a nameless code of conduct.  There is nothing to talk about.  What transpired during the disciplinary proceedings does not and cannot have the effect of validating the proceedings before the disciplinary committee, which proceedings were void.

“If an act is void then it is in law a nullity…. And every proceeding which is founded on it is also bad and incurably bad.  You cannot put something on nothing and expect it to stay there.  It will collapse.”

Per Mac Foy v United Africa Co. LTD [1961] 3 ALL ER 1169 AT 1172.

Therefore it is of no benefit to consider whether there was substantial compliance with the tenets of natural justice or not.  The Appellant has failed to show that the Respondent was dismissed in terms of an employment code of conduct as required by the Act.  On that basis alone the appeal must be dismissed there is no need to address the other grounds of appeal.

Accordingly the following order is made.

The appeal be and is hereby dismissed.

There shall be no order as to costs.

MADZIVANZIRA & ASSOCIATES, Appellant’s legal practitioners