Saidi Zhuwawo v Delta Beverages

IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/295/2013

HELD IN HARARE, MARCH 26, 2013               CASE NO. LC/H/246/2012

In the Matter Between




SAIDI ZHUWAWO                                      APPELLANT



And



DELTA BEVERAGES                                    RESPONDENT




Before The Honourable L. Kudya, President

For The Appellant               : Mr E. Maponga (Unionist

For The Respondent              : Mr G. Chingoma (Legal Practitioner)




KUDYA L.,



      This is an appeal against the decision of the Respondent’s Works Council

internal appeal level where Appellant’s guilty verdict was upheld and the

dismissal penalty was confirmed.



      Facts of the case are that, Appellant was found guilty and dismissed from

work on charges of negligently carrying out his stock control duties on 11 and

15 November 2011 in contravention of the Respondent’s code of conduct. In

particular, it was alleged that on the said dates, he negligently corrected the

number of scuds crates which had been noted to be different from what was

physically going out with the driver. He was said to have made the corrections

without physically checking whether indeed there was any discrepancy on the
                                                   JUDGMENT NO. LC/H/295/2013


crates going and what was recorded on the dispatch sheets. This he did to the

potential prejudice of the Respondent Company.

     He was brought before a Disciplinary Committee which deliberated his

matter and found him guilty of the conduct complained of. The Committee

went on to dismiss him for the alleged offence. Aggrieved by the dismissal he

appealed against that using all the internal appeal structures until he ended up

at the Works Council appeal level. At this level his guilt and dismissal were

confirmed. It is this decision which caused him to lodge the instant appeal to

the Labour Court.



The grounds of appeal are as follows:

   1. Works Council erred by upholding decision of the lower level Committees

      which ignored evidence submitted before it that it had not been refuted

      that the driver and guard had a role to play in making sure that the

      correct quantity was dispatched.

   2. The Committees at all the levels failed to note that Appellant had done

      his job well but instead that it was the driver who had picked up the truck

      with the wrong trailer.

   3. The Disciplinary Committee erred not to consider that no proper

      investigations were carried out hence if they had been done it would

      have become apparent that there was need to get a report from the

      driver and the guard.

   4. Chairperson was an interested person and should have recused self. This

      would have been apparent had the matter been investigated properly.

   5. The committee erred in not observing that disciplinary action needed to

      be corrective than punitive to keep up with the spirit of the Code of

      conduct.




                                                                               2
                                                    JUDGMENT NO. LC/H/295/2013


   6. As in 6 above disciplinary action had to be corrective at first and punitive

      action only often that had failed.

   7. Negligence charge was contrary to the charge as per Code which made

      reference to repetition of tasks and for such to stand it was imperative

      that loss be proved before Appellant could be found guilty on it.

   8. Committee did not consider Appellant’s mitigation seriously which if it

      had could have caused it to mete out a different penalty.



   In the result the Appellant prayed that he be reinstated without loss of salary

and benefits or alternatively to be paid damages in place of the reinstatement.



   In response, the Respondent maintained that:

   1. Appellant abandoned his appeal on the verdict hence he cannot turn

      round and now raise issues which the Works Council was not given a

      chance to determine.

   2. Appellant was negligent in altering the forms without verifying first.

   3. Proper investigations were carried out including compilation of reports

      from important people like the security detail.

   4. There is no rational and tangible link with the averment of bias on the

      chairperson. In any event, Appellant agreed that the hearing continue

      with that chairman.

   5. As in 4 above Appellant abandoned his objection on the issue of

      chairman hence agreed to continue with the hearing.

   6. 7, 9

      Dismissal was appropriate. There was no gross misdirection warranting

      this court’s interference with the penalty.

  8. Completion of the out load document had to be repeated and Appellant’s

      conduct exposed Respondent to serious financial damage.


                                                                                  3
                                                     JUDGMENT NO. LC/H/295/2013




      From the facts outlined above, the grounds of appeal and the responses

thereto it is clear that the major issue for determination is, firstly whether

Appellant can now raise appealable issues which he estopped the Respondent

works council from dealing with and secondly whether the dismissal penalty

was outrageous in the circumstances.          From a peripheral perspective the

procedural issue of bias and recusal of the chairperson of the Works Council

also deserve mention and resolution. For clarity of the record the law and the

factual perspective of each ground would be addressed in turn.




Ground One

      The law is clear that a party can not appeal against a non-existent order

or determination. See case of ZIMRA v Mpindiwa SC 85/06. Whilst this case

dealt with the issue of the absence of a determination on the case as in its

verdict the principle it lays applies to the instant case to the extent that, in the

instant case the Appellant withdrew his appeal on the issues pertaining to his

guilt. To that extent he barred the Works Council from determining the issues

which he now seeks to raise. To that extent, it would be improper for this Court

to conclude that the works council misdirected itself on issues which it never

determined.



      Even the case of C. Kambuzuma and 22 Others v The Athol Evans

Hospital Harare SC 118/18/04 supports the contention that court cannot be

faulted for failing to deal with issues not placed before it. In the instant case, it

is clear that the Appellant barred the Works Council the chance to deal with the

issues which he says is now unhappy with. He therefore cannot then turn


                                                                                    4
                                                           JUDGMENT NO. LC/H/295/2013


round and argue that the works council should have considered what he

estopped it from considering by his withdrawal of the appeal grounds on the

issues pertaining to his guilt.          The court is satisfied that, by virtue of

withdrawing the appeal grounds and persisting in the call for leniency all that

was left for the Works Council was the leniency call.                 To that extent the

Appellant’s first ground of appeal has no merit and it should accordingly fail.



Ground Two

       The Court agrees with the Respondent that, altering the forms without

checking the load is negligent conduct. Suffice however to mention that, since

the court has already ruled that the Appellant waived his right to complain

about the merits of his guilt or otherwise by his withdrawal, this ground is

therefore of no moment in the instant proceedings. It should also fail.



Ground Three

       Sentiments in ground 2 apply with equal force here and the ground

should fail on the same basis as did ground 2.



Grounds Four and Five

       These 2 grounds are intricately linked in that; they both refer to the

procedural impropriety which is alleged to have occurred on the matter, in the

chairmanship of the Works Council. Form a legal perspective the law is settled

that, institutional bias cannot be rule out in labour proceedings.



       See case of Leopard Rock Hotel Co. Pvt Ltd and Anor v Walemann

Construction Pvt Ltd 1994(1) ZLR 255. The test of bias was laid down in this

case in the following words, “Could the applicant show a reasonable fear that the trial before

the chosen arbitrator would be impartial ...” Applying this principle to the facts of the


                                                                                            5
                                                        JUDGMENT NO. LC/H/295/2013


instant case, there was no evidence of reasonable fear that the chairman could

be impartial. The record states that the issue of his recusal was debated at

length and occasioned some adjournment of the matter. He only continued

chairing after he had satisfied himself that there were no cogent reasons why

he was being asked to step down from the proceedings.



       In any event, the record also shows that when Appellant finally agreed

that the chairman should continue chairing, the chairman did not take that on

face value. He probed Appellant further to satisfy himself that Appellant was

giving up on his objection freely and voluntarily. Since he gave up his objection

he cannot now try to rely on it to upset the decision of the Works Council.



       In the case of Laws v Rutherford 1924 AD 761, where a party had lost his

chance to make representation or surrendered his right to do so he had to

stand by that . It was stated thus, “You have given up your right, you cannot change your

mind” In the instant case, it is clear that there was no cogent basis for asking the

chairman to recuse himself and Appellant also gave up on his objections. These

2 grounds are merit-less to that extent. They also should accordingly fail.




Grounds Six, Seven and Nine

       These are the only grounds which this court is satisfied are properly

before it since the Appellant after withdrawing his appeal on the verdict

persisted in his prayer that the Works Council exercise leniency on him and

consider a less severe penalty. The court does not intend to restate the law as it

appears in the Respondent’s heads. It is settled that the prerogative to mete

out penalty remains with the employer and dismissal can be meted out as a


                                                                                       6
                                                    JUDGMENT NO. LC/H/295/2013


penalty of first instance if the employer takes a serious view of the infraction in

question. See cases of Posi vs Toyota Zimbabwe SC 90/07, and

Malimanji v CABS 2007(2) ZLR 77(S) @79.



      The appellate court can only interfere if it is convinced that the exercise

of the prerogative was actuated by bias, malice or was grossly unreasonable in

the circumstances. See case of AG v Howman 1988(2) ZLR 402 (SC). A reading

of the record of proceedings in the instant case shows that the Works Council

considered all the mitigatory and aggravatory features in the case and

concluded that, notwithstanding the length of service by Appellant and his

family circumstances dismissal was appropriate.



       Appellant was said to have been on a final written warning on almost

similar facts. Surely what other penalty could have met the justice of the case

for a person who erred again in similar circumstances. The potential prejudice

which was proved was sufficient to have the Appellant visited with the dismissal

penalty. In essence, the court is not satisfied that there is any misdirection

which has been shown to have been on the part of the Works Council to

warrant interference by this court. Accordingly, these 3 grounds should also fail

as they have not been proven by the facts of the case.



Ground 8

      This deserves brief mention in view of the court’s ruling on ground one

and the other grounds relating to the merits of the guilty verdict. It is of no

moment as it was withdrawn. However, even if it was not a withdrawal issue,

the facts show clearly that there was repetition of acts as envisaged by the

section which the Appellant was charged with and such repetition indeed




                                                                                  7
                                                     JUDGMENT NO. LC/H/295/2013


exposed Respondent to potential loss. The ground therefore also lacks merit

and it has to be dismissed.



In the final analysis, it is clear that all the grounds of appeal raised are without

merit. They should all accordingly fail.



IT IS THEREFORE ORDERED AS FOLLOWS:

1. That appeal lacking in merit on all the grounds be and is hereby dismissed.

2. The decision of the Works Council that Appellant is guilty and dismissed is to

stand.

3. No order as to costs.




L. KUDYA ----------------

President -Labour Court


United Food and Allied Workers Union of Zimbabwe, Representative for the Appellant.

Dube, Manikai and Hwacha Legal Practitioners, Representatives for the Respondent.




                                                                                    8