Proton Bakers (Pvt) Ltd v Crawford Aridondo & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/689/2016
HARARE 14 SEPTEMBER 2016
CASE NO. LC/H/648/15
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/689/2016

HARARE 14 SEPTEMBER 2016			      CASE NO. LC/H/648/15

AND 4 NOVEMBER 2016

PROTON BAKERS (PVT) LTD					Appellant

CRAWFORD ARIDONDO						1st Respondent

JOHN TWALIKI							2nd Respondent

Before The Honourable G. Musariri, Judge:

For Appellant		Ms E. Drury, Attorney

For Respondent		Mr J. Twaliki, Respondent

MUSARIRI, J:

On 29th June 2015 at Marondera Arbitrator E. Mudzengerere issued an arbitration award.  He ordered Appellant to reinstate Respondents’ employment or pay them damages in lieu of reinstatement. Appellant then appealed to this Court against the award.  Respondents opposed the appeal.

The grounds of appeal were five-fold as follows:

“1	The Honourable Arbitrator erred at law by holding that the evidence of Respondents’ subordinate was insufficient to prove Respondents’ guilt.

2.	Further, the Honourable Arbitrator erred in holding that the standing instruction was not sufficiently clear which misdirection in fact was so gross as to amount to a misdirection in law.

3.	The Honourable Arbitrator erred in that, having found that the Respondents were accountable for the actions of the subordinates under them but thereafter finding that the Respondents were not blameworthy.  This misdirection was so gross as to amount to a misdirection in law.

4.	Further, the Honourable Arbitrator erred in holding that misconduct of the Respondents was not serious and that a lesser penalty would have sufficed.  This misdirection is so gross as to amount to a misdirection in law.

5. 	Having found that a penalty should have been applied against the Respondents, the Honourable Arbitrator erred in overturning the finding of guilty and reinstating the Respondent without a penalty.  This misdirection is so gross as to amount to a misdirection in law.”

The facts of the matter fall within a narrow compass.  Respondents worked for Appellant as Supervisors.  They were in charge of subordinates including the dough-makers.  One such subordinate named Herbert was caught mixing in the dough fourteen (14) breakages. Appellant’s policy was that a maximum of two (2) breakages could be mixed with the dough.  This policy was evidently designed to ensure production of good quality bread.  Upon being confronted by his superiors. Herbert admitted guilt but implicated no one else.  The next thing he then implicated Respondents.  He claimed the supervisors instructed him to act as he did.

The Arbitrator opined as follows,

“A supervisor cannot surely be held accountable for the actions of a divergent and rebellious subordinate who acts out of whim to violate company rules. It is my considered view that the degree of moral blameworthiness of the supervisors was minimal if not absent in this instances such as to label them as grossly incompetent.”

This is where the Arbitrator fell into error. Herbert’s evidence implicated Respondents.  The fact that he had not named them in an earlier statement is not the same as giving a contradictory statement.  Alternatively Respondents as Supervisors were employed to ensure that the standard operating procedures were adhered to.  They were required to be present at the dough-mixing stage.  This  way they could prevent mischief like that engaged in by Herbert.  That Herbert could throw in 14 breakages served to show that Respondents grossly neglected their duty of supervising subordinates.  Thus they were right found guilty of misconduct.  The Arbitrator fell into serious error in absolving the Respondents in these circumstances.

I consider that the appeal has been substantiated and should be upheld.

Wherefore it is ordered that,

The appeal be and is hereby upheld; and

The arbitration award dated 29th June 2015 issued by

Arbitrator E. Mudzengerere is set aside.

G. MUSARIRI

J-U-D-G-E