Patrick Sithole v Sakunda Logistics

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/107/16
HELD AT HARARE 13 JULY 2015
CASE NO
JUDGMENT NO LC/H/107/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/107/16

HELD AT HARARE 13 JULY 2015				CASE NO LC/H/REV/73/13

& 4 MARCH 2016

In the matter between:

PATRICK SITHOLE				Appellant

And

SAKUNDA LOGISTICS				Respondent

Before The Honourable L Kudya, Judge

For Appellant			T J S Chakabva (Legal Practitioner)

For Respondent		A Rukawo (Legal Practitioner)

KUDYA, J:

This is a review of the decision by the Chief Executive Officer of the respondent company to dismiss appellant following charges of negligent performance of his duties.

The facts giving rise to the review application are that appellant who was in the respondent’s employ as a long distance truck driver was on 9 July 2013 charged with 2 counts of contravening the respondent Code of Conduct that is gross negligence and instigating or taking part in an unlawful job action.

The unlawful job action charge was eventually dropped and he was tried on the gross negligence charge.  Following the disciplinary hearing into his matter he was found guilty and consequently dismissed from employment.

This drove him to appeal to the Labour Court as well as file the application for review which is the subject matter of this judgment.  The basis for the review is as follows:

Respondent grossly misdirected itself by allowing people who were not part of the disciplinary committee to decide the matter.

The respondent erred in failing to comply with the mandatory time limits for conducting disciplinary hearings in terms of the Collective Bargaining Agreement Transport Operating Industry Statutory Instrument 61/2012.

The respondent erred in proceeding with the disciplinary proceedings in circumstances where the charge was vague and embarrassing notwithstanding the appellant having asked for the clarification of the charge.

The respondent misdirected itself by allowing Mr Hungwe to chair the proceedings in circumstances where he had already prejudged the matter and was automatically disqualified as there was a reasonable apprehension of bias.

The respondent erred in proceeding to conduct the Disciplinary hearing in circumstances where there was a pending dispute before the Ministry of Labour and Social Welfare on the computation of in transit losses and measurement of fuel between the same parties

Appellant therefore prayed that the decisions made by the Disciplinary Authority be

set aside and that he be reinstated without loss of salary and benefits.

In response to the review application on the respondent maintained that:

Disciplinary Committee reached deadlock and referred matter to Chief Executive Officer for determination as provided for by the Code of Conduct where deadlock exists.  It is thus no true that the matter was determined by a person who was not part of the Disciplinary Committee.  The dismissal letter was signed in a representative capacity on behalf of the  Chief Executive Officer.

Respondent concluded the matter within the periods stipulated in the Code of Conduct.

Applicant sought clarification of the charge and that was given to him.  He duly confirmed that he understood the charges.

Allegations of bias is a bold allegation which must be proven and is denied by the respondent.

Each case must stand or fall on its own merits.  There is no basis to rely on the determination of the pending dispute in this matter.

Appellant is not part of that dispute which has not been seriously prosecuted leading

to the notion that it was abandoned.

The relief sought is inconsistent in application for review in that it seeks permanent relief of reinstatement which is not grantable where technical irregularities are alleged.

The respondent therefore prayed that the decision by the Disciplinary Committee be upheld and that the application for review be dismissed.

Before delving into the merits of each and every ground of review set out in this matter it is important to note the following:

During oral submissions on this matter as well in its heads of arguments the applicant abandoned his 2nd and 5th appeal grounds.  In the result the judgment will concern itself with grounds 1, 3 and 4 only.

The argument about the dismissal decision being birthed by a party not part of the disciplinary proceeding was coined from the fact that the dismissal letter was signed by someone other than the Chief Executive Officer.  A reading of that letter demonstrates clearly that the person who signed the letter did that on behalf of the Chief Executive Officer.

Arguments about need for technical evidence and that Hungwe recuse self from the proceedings were raised from onset of disciplinary proceeding  as points in limine but these were dismissed by the Disciplinary Committee as  is apparent in the record of proceedings of the Disciplinary Committee.

The record of proceedings of the Disciplinary Committee is silent on the deadlock which is said to have led to the referral of the matter to the Chief Executive Officer for his decision.

All the above having been said the court now needs to turn to the review grounds

raised by the applicant.

Ground 1

As stated above on the facts which appear common cause the Chief Executive Officer was permitted at law to deal with the matter as per the Industry Code in the event of a deadlock.  What however is not clear from the record is the alleged deadlock such that it becomes difficult to dispute applicant’s argument that such referral  was irregular as there is no evidence to support it.  The signature issue is without merit as already indicated above that it was signing in a representative capacity.  The signature aside, it is not clear how the matter ended up on Chief Executive Officer’s desk so the argument by the applicant in this respect should succeed.

Ground 3

As regards the fact that charge was vague and embarrassing it is important to note that indeed applicant sought clarity of the charge after which explanation he then contented that he understood.  The court is therefore not persuaded that applicant did not understand the charge.  The record does not bear testimony to that.  This ground being ill placed should fail.

Ground 4

This ground refers to the alleged deadlock.  As stated in ground 1 above the record is not clear as to how the matter ended up being dealt with by the Chief Executive Officer.  Sentiments echoed in ground 1 apply here with equal force.  The ground should therefore succeed.  In the ultimate it is clear that there is no clarity as to how the matter ended up being concluded by the Chief Executive Officer.  Such a procedural irregularity has to be put right.  In the result the review application succeeds.

IT IS ORDERED THAT

The review application being with merit on account of review grounds 1 and 4 it be and is hereby allowed.  The matter is remitted to the respondent for a hearing de novo in a procedurally correct manner within 3 months of the date of receipt of this judgment failing which applicant would be deemed to be reinstated and eligible to payment of damages in place of reinstatement.

Masinire & Chakabva, appellant’s legal practitioners

Gwaunza & Mapota, respondent’s legal practitioners