Robert Muramba v Zimbabwe Phosphate Industries Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/313/16
HELD AT HARARE 30 OCTOBER 2015
CASE NO
JUDGMENT NO LC/H/313/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/313/16

HELD AT HARARE 30 OCTOBER 2015				CASE NO LC/H/1102/14

& 13 MAY 2016

ROBERT MURAMBA 						Appellant

ZIMBABWE PHOSPHATE INDUSTRIES LIMITED		Respondent

Before The Honourable G Musariri, Judge

For Appellant			Mr S D Chirove, Attorney

For Respondent		Mr E T Moyo, Attorney

MUSARIRI, J:

Appellant was the chairman of the Workers Committee (WC) of Chemplex Holdings Ltd and its subsidiaries including respondent.  He also worked for respondent as a machine operator.  Respondent carried out an exercise to avoid retrenchment.  One of the measures considered was putting employees on short time.  The employees were aggrieved by the measures.  They appealed to this court under reference LC/H/278/13.  They were represented by their trade union (tu).

A document titled “Executive Divisional Payroll Costs: 2012” was attached their appeal papers.  By letter dated 24 April 2013 respondent charged appellant with an act of misconduct. It was put in the following terms,

“On 22 April 2013 you submitted to the Labour Court a document entitled Executive Divisional Payroll Costs: 2012; as part of evidence in support of an appeal against a determination by the NEC Retrenchment and Exemption Committee on the introduction of measures to avoid retrenchment.  A copy of which is herewith attached.

In the document you astronomically inflated figures of the Executive payroll in an apparent effort to mislead the labour Court.

I require you to submit a written explanation…”

Respondent dutifully responded thus,

“.. It is my pleasure to let you know that I have nothing to do with the said document.  As the committee we went to our union to help us with the appeal against the determination from the NEC which we believe is within our rights.  The union drafted the appeal the way they know is effective and understandable.

About the Executive Divisional Payroll Costs 2012, as the workers committee we do not know anything about it, but the union did the investigation on their own and came out with the above alleged document.

I pray that you deal with the right people in terms of these allegations…”

A hearing was held.  Appellant was found guilty and then dismissed from employment.  He appealed against the dismissal. In due course the relevant NEC determined his appeal.  They dismissed the appeal whereafter he appealed to this Court.  Respondent opposed the appeal.  The grounds of appeal were two-fold thus,

“1. The NEC Appeals Committee grossly misdirected itself in holding that applicant’s experience in workers committee affairs as well as his position as a chairman of the workers committee entitled him to be treated differently with other executive members of the workers committee on verdicts.  Such misdirection on the part of the appeals committee led to different verdicts imposed on members of the same committee on same actions conducted thus viating the principle of equity.

2. The Appeals Committee grossly misdirected itself in holding the mere existence of the appellant’s name on the appeal which was filed with the labour Court by Chemplex employees against their employer held him liable for all the attachments to that appeal.”

I consider the 2nd ground as the heart of appellant’s case.  I will deal with it accordingly.  It is common cause that the case in question involved Chemplex and its employees.  The employees were represented by their union.  The union officials were responsible for the conduct of the case.  Appellant denied knowledge of the payroll document.  In other words his defence was that he did not draft it or file it in this court.  The maximum “he who alleges must prove” was applicable to this case.  There was no direct evidence that Appellant drafted or filed the document.  The only link to appellant was the fact that he was named as one of the workers’ witnesses in that matter.  Was that link sufficient to found an inference against him?  I think not.  The link was tenous.  He himself posited that the union did their own research.  They could have come up with the document from their research.  Thus being named a witness was neither here nor there.  In any case I consider that respondent had ample opportunity to disprove the document’s contents.  They could file opposing papers in the matter.  Their resort to disciplinary action was arguably an improper tactic to derail the workers’ appeal.

Alternatively I a persuaded by appellant’s parity argument.  He was charged together with other members of the workers committee.  They were all found guilty.  Yet he is the only one who got dismissed whilst the others were given final warnings.  They faced the same charges.  There is nothing on record showing greater or lesser participation in the alleged offence by the one or the other employees.  In these circumstances one would expect the same or similar penalty.  However appellant was slapped with the drastic penalty of dismissal. His colleagues only bore warnings.  The disparity in the penalty is staggering.  I consider the disparity as both iniquitous and inequitable.  There was no justification for the huge disparity.

All in all, I consider that appellant’s dismissal by respondent was unwarranted.

Wherefore it is ordered that,

The appeal be and is hereby allowed;

a) Respondent shall reinstate appellant without loss of salary and benefits.

b) If reinstatement is untenable, respondent shall pay appellant damages in lieu of reinstatement in a sum either agreed by the parties or assessed by this court; and

3.	Respondent shall pay 50% of appellant’s cost of suit.

G MUSARIRI

J U D G E