Mugove Chatizembwa v Lafarge Cement Zimbabwe Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/692/2014
HARARE, 16 SEPTEMBER 2014
CASE
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/692/2014

HARARE, 16 SEPTEMBER 2014		           		         CASE NO. LC/H/950/13

AND 24 OCTOBER 2014

In the matter between:-

MUGOVE CHATIZEMBWA					Appellant

And

LAFARGE CEMENT ZIMBABWE LTD				Respondent

Before The Honourable E. Makamure, Judge

For Appellant		Mr. A. Taruvinga (Legal Practitioner)

For Respondent		Mr. T. Hussein (Legal Practitioner)

MAKAMURE, J:

The appellant, Mr Mugove Chatizembwa, was employed by the respondent as a quarry superintendent.  On 21 April 2013 he was on duty.  Without seeking his superior’s authority he took a company vehicle and went to a certain farm which is about 25 kilometers from his work place.  The purpose of this trip was  personal to him.  Whilst there he met one of his superiors.   They exchanged greetings.  Thereafter they discussed his presence at that place at the material time.  What transpired at that venue is best captured by his report to the Mines Engineer which I will quote in full.  It reads:

“On the above mentioned day I was at work and around 11.15 hours I took the Nissan hard body truck unauthorized to buy personal goodies for my family at a farm in Ruwa which is roughly +- 25 kms from Factory.  I didn’t inform or seek authority from my boss I thought it not necessary distance wise and wasn’t going to affect plant performance (Pit Superintendent in charge of all Quarry opt for the time.  I was not around 1 hour 30 minutes).  In the farm on my way from the farm kiosk I saw Mr. Mutasa’s jeep we met and after greeting him he asked me the type of car I had used I pointed to the Nissan, again he asked if I had seek authority I admit (sic), like anybody I panicked, then he warned me against such behaviour and his disappointment, citing recent incidents that had happened in Quarry.

I then informed my boss about the incident who was equally disappointed about the unsanctioned trip, then requested a written statement.

I therefore sincerely apologise to Mr. Mutasa for not telling the truth in the first instance although I later phoned to narrate the true story because I had panicked in the first instance, the Quarry Mines Engineer who is acting Quary Manager on the day and to all about my actions – for not reciprocate (ing) the trust and faith shown by all above me.

Once again my apology to all, it was an oversight and wasn’t meant to undermine the Quarry Manager’s or anybody’s authority” (Emphasis added)

As a result of that unsanctioned trip disciplinary proceedings were conducted against him.  He was charged with:

“(i)	     willful damage, misuse or loss of company property and

leaving work situation without permission.”

These were violations of paragraph 4 (d) and 5 (c) respectively of the respondent’s code of conduct.  The appellant was found guilty and penalized with dismissal.  He was aggrieved by the decision.  He appeals to this court on the basis that: a wrong employment code was used to discipline him; the charges were improperly and arbitrarily preferred against him; there was no motor vehicle policy at the workplace and that mitigatory features were not given adequate consideration.

It is clear from the appellant’s report that he was aware of the need to seek authority when taking his employer’s vehicle out.  It is equally clear that he needed authority to leave the workplace.  From these two considerations alone, the appellant cannot turn around and start questioning whether or not there was a vehicle policy.  There is no way he can now allege ignorance of facts which he confessed to himself. Further, once a wrong has been committed, it is up to the employer to either prefer or not prefer charges.  As such therefore it cannot then be suggested that the charges are either improper or arbitrary.  The record of proceedings shows that the appellant genuinely apologized for his wrong doing (p 21).  This lead to a stalemate as the disciplinary committee considered the appropriate penalty, and resulted in the chairperson of the Grievance and Disciplinary Committee (GDC) writing to the Managing Director.   It was the Managing Director who recommended dismissal.  The final decision was that the appellant be dismissed, so he was dismissed.  The record therefore speaks for itself.  Mitigation was appropriately considered but the employer proceeded to impose the ultimate penalty of dismissal.  In Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60/03 the Supreme Court held that

“Once an employer has taken a serious view of the act by the employee to the extent that it considered it to be a pepudiation of contract which it accepted by dismissing her from employment, the question of a penalty less severe than dismissal being available for consideration would not arise …”

Considering the circumstances of this case in view of the above cited authority, the question of a lesser penalty cannot arise.

It has been argued on behalf of the appellant that he was a managerial employee and should not have been disciplined in terms of the applicable code.  The argument was advanced that since the appellant was authorised to supervise others, he could not be disciplined by the applicable code.  Firstly the code provides that “the provisions of the code are applicable to all employees” of the respondent.  Secondly, the same Code in labour matters, provides that its provision apply to the employer, the employee’s representative and the employees.  So before looking elsewhere for an answer, I am of the respectful view that the provisions of the code make it abundantly clear that whosoever is employed by the respondent, be the employer’s representatives or the employees,  all are required to abide by the provisions of the code.  Mr. Taruvinga who appeared on behalf of the appellant strenuously argued and sought to persuade the court that it should apply the Golden Rule of interpretation in interpreting the word ‘employee’ and find that the appellant is not one of the persons covered by the code.  Mr. Hussein who appeared on behalf of the respondent argued that the principles of interpretation enjoin the court to use words in their ordinary and grammatical meaning unless such interpretation led to an ambiguity or absurdity.  I agree,

“The cardinal rule of construction is that words must be given then ordinary, literal grammatical meaning.”

See Volschenk v Volschenk 1946 TPD 486 @ 487.  The Golden Rule will as Mr. Hussein correctly submitted should be used where the literal rule is inadequate (Volschenk v Voslschenk) (above).  In the present case if it is thought that the applicable code did not adequately define an employee, it is important to consult the enabling Act, The Labour Act [Chapter 28:01] (The Act).  According to the Act an “employee” is defined as

“any person who performs work or services for another person for remuneration or record on such terms and conditions as agreed upon by the parties or as provided for in this Act,” and

A “managerial employee” “means an employee who by virtue of his contract of employment or of his seniority in an organization, may be required or permitted to hire,  transfer, promote suspend, lay off, dismiss, reward, discipline or adjudge the grievances of other employees”; (Emphasis added).

What this means is that whether a person is managerial or non-managerial, they are an employee.    The applicant was therefore an employee of the respondent and as such his conduct was governed by the applicable code.

Having stated the above, all the grounds of appeal have been adequately considered.  There is no merit in all of them.  In the circumstances the appeal is devoid of merit.

Accordingly it is ordered that the appeal be and is hereby dismissed.

D.W. MHIRIBIDI & COMPANY, Appellant’s legal practitioners

HUSSEIN & RANCHOD, Respondent’s legal practitioners