Nixon Mawire v Instatoll Zimbabwe (Pty) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/79/2023
HARARE 9 MARCH 2023
CASE NO LC/H/779/22/
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IN THE LABOUR COURT OF ZIMBABWE	         	JUDGMENT NO LC/H/79/2023

HARARE  9 MARCH  2023                              		CASE NO LC/H/779/22/

16 MARCH 2023

NIXON MAWIRE						APPELLANT

INSTATOLL ZIBABWE (PTY) LTD			RESPONDENT

Before the Honourable G. Musariri  Judge:

For  Appellant			Mr J. Dondo,  Attorney

For Respondent		Ms R Mutindindi, Attorney

MUSARIRI, J:

On the 1th August 2023 Respondent’s disciplinary authority issued a final written warning to Appellant. The warning is valid for 12(twelve) months, Appellant then appealed to this Court in terms of section 92D of the Labour Act Chapter 28:01.  Respondent opposed the appeal.

The grounds of appeal were quadruple as follows;

The Disciplinary Authority erred and misdirected itself, such misdirection amounting to an error of law in coming up with a penalty imposed on the Appellant as was done without first making specific findings of the guilt(y) or otherwise of the Appellant on any of the specific charges as put forward by the employer. Alternatively, the Disciplinary Authority erred in not making in respect of each and every allegation(s) put forward by the employer since Appellant had in his defence outline and evidence refuted each and every allegation(s) made.

Having not Pronounced on the guilty of the Appellant on any of the specific allegations put forward, it was a mis-direction for the Disciplinary Committee to simply call for mitigation and aggravating factors before imposing a penalty.

The Disciplinary Authority erred and or seriously misdirected itself in making a decision which is vague and embarrassing in the sense that it does not inform the Appellant on the exact misconduct that Appellant was being punished for.

The Disciplinary Authority grossly erred and misdirected itself by directing that an appeal against its decision lay with the Chief Operating Officer Instatoll Africa when Appellant was not an employee of Instatoll Africa but an employee of Instatoll Zimbabwe.

Alternatively, in light of the fact that Complainant was Appellant’s line Supervisor, an appeal against the determination by the Disciplinary Authority ought to have been directed to the Labour Court.”

The 4th ground of appeal was disposed of by this Court’s ruling on points in limine under the judgment referenced LC/H/54/23.  The 1st and 2nd grounds of appeal raised a point for review i.e.  the propriety of proceeding to a penalty without a pronouncement of guilt. Reviews are separately provided for by Rule 20 of the Labour Court Rules S.I.  150/17.  They cannot be dealt with by way of an appeal such as the present matter.  That leaves the 3rd ground as the sole ground dealing with the content of the ruling.

The ruling is worded in rather ambiguous terms maybe because the disciplinary authority appears to be a lay person.  It does not pronounce itself clearly on the issue of guilt. Appellant was facing a charge of “conduct or omission inconsistent with the fulfilment of the express or implied terms” of the employment contract.  The charge letter dated 13th June 2022 detailed 6 counts of the charge.  The ruling does not make specific findings on each of the counts.  It is clear though that appellant was found guilty.  The task is to pare the ruling to discern the implied rulings.  The ruling makes observations numbered No 1 through to No. 9.  The ones which imply the finding of guilt read thus,

“7. Employee appears to have relinquished some of his responsibilities of closely monitoring SHEQ issues.

8. Employee did not concern himself about contractors He used his knowledge of SHEQ to exonerate himself from responsibility.

9. Employee was not interested in an employee’s injury (the jacket issue). He tried to

be technical about grass cutting on sites when this issue was raised – an issue that saw an employee being away on sick leave for a whole three months….”

The ruling refers to appellant’s Job Description (JD). However same was not filed of record.  Neither does the ruling refer to specific clauses breached by appellant. Considering that appellant disputed some duties ascribed to him, it is difficult to sustain the general observation that he relinquished his duties.  However there appears to be substance to the “jacket issue.”  It is covered by the ruling as follows,

“15. The issue of the tight jacket which affected on employee was highlighted. The Operations Manager wrote to the employee on January 11 that the employee should be refunded for medication/treatment. The employee being disciplined did not actively deal with this issue, necessitating reminders to address the issue. The issue was only addressed in March after having occurred in November. Employee argued he was not aware of the incident, which is surprising as emails show communications with him in this regard. The employees claimed ignorance on SHEQ alert.  He also did not believe there was need for an incident recall. Management counter argued that the employee was notified.  He was reminded but still did not respond. Employee argued it was not his responsibility but his subordinate.”

An employee is employed to do what the employer says not what the employee thinks.  Appellant was instructed to deal with the refund of medical expenses of an injured employee.  He did not do anything despite reminders.  His alibi that it was his subordinate’s responsibility cannot suffice considering that the instruction came from his own boss, the Operations Manager.  If it was his subordinate’s duty then he should have ensured that the subordinate complied with the instruction. Whichever way one looks at it appellant failed in his duty as regards the “jacket issue.”

Appellant not having challenged the severity of the penalty imposed, it means that the final written warning issued by the disciplinary authority still stands.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E