Salwire Fencing v Robert Zishiri

IN THE LABOUR COURT OF ZIMBABWE               JUDGMENT NO. LC/H/312/2013
HELD AT HARARE ON 04 APRIL, 2013                  CASE NO. LC/ H/217/2012
In the matter between



SALWIRE FENCING                               –              Appellant
And

ROBERT ZISHIRI                                –              Respondent




Before The Honourable L. Kudya, President
For Appellant      - L.T. Marime (Manager Accounts and Admin)
For Respondent     - T. Katsuro(Legal Practitioner)




KUDYA, L.

      This is an appeal against the decision of the National employment Council

for the Engineering and Iron and Steel Industry where it ordered that the

Respondent employee be reinstated by the Appellant employee without any loss

of salary or benefits from the date of his suspension or alternatively that he be

paid damages in place of the reinstatement.



      Facts of the case are that the Respondent was in the employ of the

Appellant as a machine operator based in Chinhoyi at the time when he

allegedly contravened the Industry Code of Conduct by being absent from work

for more than 5 days without lawful excuse. He was summarily dismissed by the
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General Manager without a proper hearing having been conducted to

determine his guilt or otherwise.



     He approached the labour officer where conciliation did not yield results

until he approached the N.E.C with his grievance of unfair labour dismissal. The

N.E.C deliberated that matter and concluded that indeed the Respondent had

been unlawfully dismissed since no proper hearing had been conducted in his

case. It ordered the Appellant Company to conduct a proper hearing in respect

of the case before dismissing the Respondent. The Appellant Company duly

conducted the hearing and once more dismissed the Respondent. Aggrieved by

the manner in which the hearing had been conducted the Respondent appealed

to the N.E.C which handed down the decision which is now the subject matter of

the instant appeal.



The Appellant’s grounds of appeal are basically that:-



      Despite the procedural irregularities in the handling of matter of the

Respondent, the facts and evidence on the matter justified his dismissal. The

Respondent’s response in turn is to the effect that;



   1) Appeal is fatally defective since it is based on facts not law

   2) The procedural irregularities in the case seriously prejudiced the

      Respondent hence his entitlement to his reinstatement.



      As regard the point in limine raised by the Respondent it is important to

note that apart from counsel for Respondent gainsaying that, appeals should be


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only on points of law in terms of Section 98 (10) of the Act ,he does not go

further to put that argument in the context of the instant case. Section 98 (10)

makes reference to arbitral awards yet in instant case there is no mention or

documents relating to an arbitral award.          In any event, a reading of the

Respondent’s heads demonstrates that he abandoned that part as he makes no

reference to it at all. In the result the court is satisfied that the point in limine is

without merit as it was not argued or substantiated.             It should therefore

accordingly fail.



      Reverting to the merits of the case, the Appellant concedes that the

matter was tainted with procedural irregularities.            The Respondent then

particularizes these as being the following



      1) Respondent was not served with documents in relation to the offence

          to prepare for his hearing contrary to the provision Section (5) 93) of

          the Industry Code. To that extent he could not adequately prepare for

          his case.

      2) Appellant lumped the days which it says Respondent was absent

          together with days when he was legally off duty hence it was not

          categorical what period the Respondent had offended. The lumping

          up this created the impression that Respondent has absented self for

          periods longer than what he indeed absented self for.

      3) Respondent was taken to be a habitual absentee, reference being

          made to previous years’ absenteeism some periods which by

          operation of law had prescribed and for which he has not been

          charged or tried on. That to an extent prejudiced him.


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      4) Respondent proffered an excuse for his absence but that was not

         examined or dealt with before the Appellant could conclude that

         indeed Respondent was guilty. Since he had proffered reasons it was

         his view that those reasons had to be explored before the matter was

         concluded. To that extent the finding that he was absent for no good

         reason was gross and outrageous that it defied common sense since it

         had not been tested whether the excuse had merit or not.

      5) The Appellant did not give due regard to Respondents mitigation as

         required by Section 12 (b) (4) which if it had could have led it to mete

         out a more corrective than punitive penalty on the Respondent.

      In the Appellant’s own concessions it admits that after it had been

ordered to discipline the Respondent afresh it bungled in the manner outlined

above when it sought to rectify what it had erred on earlier on. It however

maintained that to uphold the reinstatement order would send the wrong

message to the Respondent’s co-workers. In essence it does not seem to take

issue categorically with any of the procedural arguments raised by the

Respondent.



      That being the setup, the only question which this court has to deal with

is whether the N.E.C. exercised its discretion irrationally by ordering

reinstatement in the circumstances. This is a case where the Appellant had

been ordered to do the correct thing but went on to bungle it again. That, in the

court’s view is inexcusable. The repetition of the errors complained of by the

Respondent speak of lack of seriousness on the part of the Appellant.




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         In the court’s view even though in the light of the case of Tichawana

Nyahuma vs Barclays bank SC 67/05 the case should have been remitted

further the court appreciates the difficulty which the N.E.C. found itself in when

it was faced once more with the botched proceedings from the employer.

   The court is thus not persuaded that, the N.E.C’s decision was outrageous. It

is clear that, the Appellant in the excitement to comply with the re-hearing order

bungled the whole process to the prejudice of the Respondent. It cannot have

its cake and eat it too. It should thus stand by its fault. To that extent the court

is not persuaded that this is a case warranting interference with the N.E.C’S

decision.



IT IS THUS ORDERED THAT:

   1) Appeal being without merit be and is hereby dismissed.

   2) The decision of the NEC reinstating the Respondent is to stand.

   3) Each party to bear own costs.



Signed

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

President Labour Court
Zimbabwe Labour Centre- Respondent’s Legal Practitioners




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