Panganai Chiota v Petrozimline (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/511/16
HELD AT HARARE
12 JULY 2016
CASE NO LC/H/511/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/511/16

HELD AT HARARE 12 JULY 2016				CASE NO LC/H/243/16

& 9 SEPTEMBER 2016

In the matter between:

PANGANAI CHIOTA					Appellant

And

PETROZIMLINE (PVT) LTD				Respondent

Before The Honourable Murasi, J

For Appellant 			Ms C Mapanda (Legal Officer)

For Respondent		A K Maguchu (Legal Practitioner)

MURASI J:

Appellant was employed by the respondent as a controller.  It was alleged that the appellant had negligently performed his duties and charges of misconduct were brought against him.  He was brought before a Disciplinary Committee which found him guilty and dismissed him from employment.  Appellant lodged his appeal in terms of the Code of Conduct.  On the date the matter was scheduled to be heard, appellant raised technical issues at the commencement of the proceedings and walked out of the proceedings.  The Appeals Committee proceeded to determine the matter and upheld the decision of the Disciplinary Committee.  Appellant is dissatisfied with that decision and has appealed to this court.

At the commencement of the oral proceedings, Ms Mapanda informed the court that the first two grounds of appeal were being withdrawn and the appellant would proceed on the remaining four grounds of appeal.  These are as follows:

The appeals committee grossly misdirected itself in finding the appellant guilty of both charges despite clear evidence that the incident occurred not as a result of human error but as a result of system failure.  The committee should have found the appellant not guilty of all (both) the charges.

The appeals committee grossly misdirected itself in disregarding the preliminary point raised by the appellant that the record of proceedings is (was) not a true reflection of what transpired since the whole process of inspection  in loco was not recorded.

The appeals committee erred and grossly misdirected (itself) when it upheld the penalty imposed by the disciplinary committee which is outside the penalty stipulated in the code of conduct for the energy industry.  The offences which the appellant was charged with did not call for a penalty of dismissal but of a final written warning.

The appeals committee erred and grossly misdirected itself when it disregarded the parity principle by upholding the penalty imposed by the disciplinary committee despite the fact that the other controller Mr Chingozhoro whom the appellant was with when the incident happened was charged with the same charges but a penalty of final warning was imposed.  The disciplinary committee should have observed the equity principle and imposed a similar penalty.

Ms Mapanda stated that she largely abided by the documents filed of record and went on to point out that the appeals committee failed to find that the incident had occurred not as a result of human error as clearly shown by the record of proceedings.  She further submitted that the finding by the disciplinary committee that the instrument’s malfunctioning was not key was erroneous as the first thing that happened after the report was the repair of the instrument in question.  Ms Mapanda further submitted that the appeals committee should not have endorsed the penalty imposed by the disciplinary committee as this was outside the provisions of the Code of Conduct.  It was stated that the Code of Conduct provided for a final written warning for the offence with which the appellant was charged.  Ms Mapanda further alleged that the appeals committee failed to uphold the parity principle by allowing two different penalties for similar offences against persons who had allegedly committed the offences at the same time.  Asked by the court whether this appeal was not against a default judgment having regard to the fact that appellant had walked out of the proceedings, Ms Mapanda stated that she was of the view that it did not amount to a default judgment as the appeals committee had proceeded to take into account appellant’s submissions in its deliberations.

Mr Maguchu for the respondent stated that he abided by the documents filed of record.  He stated that he would firstly deal with appellant’s absence at the appeal hearing.  He submitted that the appellant was clearly in default and that the common law position was that a default judgment cannot be appealed against.  To this end Mr Maguchu cited the case of Ramoali Trustees v UDC Ltd 1998 (1) ZLR 110.  On the merits, he submitted that the evidence was clear as to what tools were available or at appellant’s disposal during the course of his duties.  Mr Maguchu’s summary was that the appellant would not have been expected to rely on the densitometer when other instruments were available as stated by witnesses in evidence.  As regards the penalty, it was argued that the Supreme Court had already made pronouncements to the effect that an employer was permitted to impose a penalty outside the Code of Conduct if the employer was of the view that the misconduct went to the root of the employment contract.  Mr Maguchu argued that appellant was enjoined to lead evidence on the issue of the parity principle.  It was stated that this was a factual issue and the court could not be found to be making a decision on that ground of appeal without any evidence, it could not be said that the parity principle had been abrogated.  Mr Maguchu further stated that had the appellant attended the hearing before the Appeals Committee, he would have brought the issues properly before that committee.

I will first deal with appellant’s absence from the hearing before the Appeals Committee.  The record shows that appellant’s representative informed that committee that they had come to inform it that it no longer had jurisdiction to deal with the matter.  The secretary to that committee responded by stating that the view held by the appellant was wrong as the provision he sought to rely upon referred to proceedings before the disciplinary committee.  The secretary added that in respect of delays encountered at the appeals stage, the appellant should approach the Labour Court for an order compelling the appeals committee to dispense with the matter.  The secretary informed the Appeals Committee that it was perfectly legal for the Appeals Committee to continue with the hearing.  These discussions were made during the presence of the appellant and his representative.  Thereafter appellant and his representative requested to be excused from the hearing.  The minutes are recorded as follows:

“The chairperson excused the appellant and his representative and they walked out.”

Situations where litigants have walked out of proceedings have been dealt with by superior courts.  It is a well-beaten road.  In Robert Dombodzvuku & Anor v CMED (PVT) Ltd S 14/11 CHEDA AJA (as he then was) had this to say at  p 7 – 8 of the cyclostyled judgment:

“The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.

Worse still they left without responding to, or refuting the charges against them.  They declined the opportunity to put forward their defences to the allegations.

I find no fault in the Labour Court holding that the appellants waived their rights to be heard by walking out of the disciplinary proceedings .”

ZIYAMBI JA has occasion to deal with a similar situation where there was deliberate absenteeism on the part of a litigant.  The learned judge had this to say in David Moyo v Rural Electrification Agency S 4/14 at p 2 thereof:

“The main point taken by Mr Magwaliba before us, was that the disciplinary proceedings were irregular and unfair in that the appellant was not heard in person and the proceedings were not concluded within fourteen (14) days as required by section 6 (2) of the Regulations.

In our view the appellant, by deliberately absenting himself without leave from the hearing, waived his right to challenge the conduct of the disciplinary proceedings.  He had the option, which he did not exercise of seeking a postponement since he knew that he would not be available on the date of the hearing.  In these circumstances we did not feel that the failure by the respondent to strictly comply with the Regulations operated to vitiate the disciplinary proceedings.”

The common thread in the above-cited cases is that where a litigant deliberately shuns attendance at proceedings he/she is well aware of, he/she waives his/her rights.  Appellant and his representative walked out of the proceedings without making any submissions and deliberations went ahead in their absence.

The question that arises is what is the status of the proceedings concluded in such a manner?  Do the proceedings not amount to a default judgment in the circumstances?  Ms Mapanda was of the view that since the Appeals Committee went ahead and considered appellant’s submissions, the resultant decision could not be termed a default judgment.  This issue was deliberated upon by GWAUNZA JA in Zvinavashe v Ndlovu SC 40/2006.  I will quote extensively from this judgment from pages 2 to 3 to show the reasoning of the learned judge:

“The appellant does not dispute that he was in default on the day his application for rescission of this judgment was to be heard.  Nor does he dispute that, under the circumstances, the court was entitled to enter default judgment against him.  He however takes issue with the fact that, in dismissing his application, the court a quo had delved into the merits of the matter and given its reasons for the judgment against him.  He contends the resultant judgment is appealable.

In reality, as is evident from its judgment, the court a quo did not deal only with the merits of the application for rescission of judgment, it went beyond that to consider the merits of the main dispute between the parties, that is, the action instituted by the respondent in casu for recovery of the property referred to earlier…

The appellant’s contention, therefore is that the present case, having been determined on the merits, with reasons for judgment being given, was appealable.  In other words, the appellant is arguing that the tendering of reasons for the judgment had, somehow, divested what otherwise would have been an ordinary default judgment of its “default” nature, and left in its place a judgment that was appealable.

I do not find the appellant’s argument to be persuasive.  The defining feature or essence of a judgment granted after a party fails to appear is the “ default” of the absent party, that is his failure to do what he ought to have done.  In casu, what the appellant failed to do was to appear and prosecute the application.  Hence a judgment by default has been defined as one obtained by “non-resistance.

The consideration by the judge a quo of the merits of the case and the giving of his reasons for judgment, therefore had no effect on the status of the judgment given, which remained that of a default judgment.”

The appellant, in casu, walked out of the proceedings and declined to be part of the hearing.  He decided not to be heard.  He was absent/in default when the Appeals Committee deliberated on his “appeal.”  The Appeals Committee went on to consider his written submissions and made conclusions on the “merits”.  As stated by GWAUNZA JA, did this divest the judgment of its default complexion?  I think not.  Even if I were to disagree, I would still be bound to follow the reasoning in that judgment.  The doctrine of precedent is one which is time-honoured.

The doctrine of precedent requires courts to follow decisions of coordinate and higher courts in the judicial hierarchy.  It has been stated that without precedent there would be no certainty, predictability and no coherence and decisions can become vulnerable to whim and fancy.  It is my view that the cases cited above clearly apply to appellant.  Appellant walked out of the proceedings and is deemed to have waived his rights in this regard.  A decision was made in his absence and it therefore was a judgment in his default which is thus not appealable.  The court is of the considered view that it will not be necessary to determine the appeal on the merits.  The appeal ought to be dismissed.

The court makes the following order:

The appeal, being devoid of merit, is accordingly dismissed.

The decision of the Appeals Committee confirming appellant’s conviction and subsequent dismissal be and is hereby upheld.

There is no order as to costs.

Dube, Manikai & Hwacha, respondent’s legal practitioners