Pungwe Breweries & Marketing (Pvt) Ltd v Gift Mwanema

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MC/15/2014
MUTARE, 3 FEBRUARY 2014
CASE NO. LC/MC/15/2014
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IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/MC/15/2014

MUTARE, 3 FEBRUARY 2014 	           		     CASE NO. LC/H/477/10

& 28 MARCH 2014

In the matter between:-

PUNGWE BREWERIES & MARKETING (PVT) LTD			Appellant

And

GIFT MWANEMA								Respondents

Before Honourable E Muchawa, Judge

For Appellant		-	Mr. W. Makhuyana (Legal Practitioner)

For Respondents		-	Mr. E.G. Mwandipe (Trade Unionist)

MUCHAWA J:

This is an appeal against an arbitral award which declared the dismissal of respondent unfair and set it aside whilst ordering reinstatement or alternatively damages in lieu of reinstatement.

Respondent is a former employee of appellant who was charged in terms of Respondent’s Code of Conduct of breach of Category 4 (18) being “gross disregard of standing procedures/rules including disregard of standing rules/procedures resulting in actual or potential financial loss/prejudice to the company.”  The facts giving rise to the charge were that on the 27th March 2005 Respondent had deposited cash into a bag.  It was discovered at the bank that Z$15 000 was missing from the locked bag and the cash in transit crew had to alter the deposit slip to reflect the missing amount.

A hearing was conducted on the 13th May 2005 and respondent was dismissed.  He then appealed to the Labour department and to arbitration but lost.  An appeal to the Labour Court on 6th October 2009 led to a referral of the matter for an arbitral award which found in favour of respondent and is the subject of this appeal.

Before getting into the merits of the appeal, respondent raised the point in limine that the Code of Conduct filed of record is not a registered Code of Conduct as there is no certification of registration, no certificate number and no signature of the registrar.  Further it is alleged that there is no declaration by the parties to this particular Code raising the question as to whether the said Code was even negotiated by the parties.  All there is is a date stamp of the 28th December 2001 on each page of the Code.

It was further argued that if the court finds that the Code of Conduct is not registered, then it would follow that the dismissal would be grossly unprocedural and should be set aside.

Appellant argued that labour matters should not be decided on technicalities and drew the court’s attention to previous matters handled by the court in which the same Code was used.  These are Pungwe Breweries v George Mundembe LC/MC/12/13 and Pungwe Breweries v Pius Nago LC/MC/12/2011.

It was further argued that challenging the Code for the first time on appeal is grossly misplaced particularly as respondent was using the same Code in all prior proceedings and basing its arguments on the same.  I was referred to the case of Chikanda v UTC Ltd SC 7/99 for the assertion that the tribunal a quo cannot be faulted for not dealing with an argument not raised before it.

Respondent’s argument is that this is a point of law and can therefore be raised at any point.  I was referred to previous cases wherein the question of the Code was brought up.  In particular it was pointed out that senior management may not challenge the Code whilst junior staff has done so as they did not participate in its drafting.

I note from a perusal of this record, that my sister, Makamure J, observed that the Code on record differed from that in appellant’s possession.  A copy of the correct Code was then requested.

I find that it is proper to raise a point of law, which goes to the root of the matter, at any time, even for the first time on appeal.  I have paid due consideration to the fact that the consideration of this point does not involve unfairness to the appellant in casu as the issue of the validity of the Code was considered before my sister Makamure J and she gave appellant an opportunity to present the correct Code.  I also gave appellant an opportunity to file proof of registration.

(see Muchakata v Netherburn Mine 1996 (1) ZLR 153 (SC)).

Appellant did not provide any further proof of registration of the Code despite being given time to furnish the Court with same. There was no rebuttal of the allegations that there is no certification of registration, no certificate number and no signature of the registrar.  In the one week given, appellant could have provided confirmation of registration from the relevant offices but did not do so.

I therefore find that a mere date stamp is not sufficient as proof of registration of the Code in the circumstances.  Further I find that respondent was therefore unprocedurally dismissed as he was not dismissed in terms of section 12B (2) (a) of the Labour Act.  The dismissal was therefore a legal nullity.  The point in limine succeeds.

Accordingly I order as follows:

That respondent’s dismissal be and is hereby set aside.

Respondent is reinstated to his job without loss of salary or benefits.

In the event that reinstatement is no longer tenable, appellant shall pay respondent damages for loss of employment in an agreed amount, failing which, either party may apply to this court for quantification of damages.

Bere Brothers, Appellant’s legal practitioners