Samson Magadu v Eastern Highlands Plantation Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MC/35/13
MUTARE 27th SEPTEMBER, 2013
CASE NO
JUDGMENT NO LC/MC/35/13
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/MC/35/13

MUTARE 27th SEPTEMBER, 2013			        CASE NO LC/MC/26/13

AND 25TH OCTOBER, 2013

SAMSON MAGADU							Appellant

EASTERN HIGHLANDS PLANTATION LTD				Respondent

Before The Honourable G Musariri, Judge:

For Appellant:		Mr. M. Chisveto, Unionist

For Respondent:		Mr. D. Tandiri, Attorney

MUSARIRI, G:

On 3rd April, 2013 the Honourable D. Mudzengi made an arbitration award.  He ruled against Appellant’s claim of unfair dismissal from employment by Respondent.  Appellant then appealed to this Court against the award.  I will deal with the material points raised in the appeal seriatim.

Suspension

Appellant stated that at the time of his suspension he was on vacation leave.  Therefore he could not be properly suspended from employment, so he argued.  Respondent pointed out that nothing in the statutes or precedents was invoked in support of this contention.  Thus the contention was unsustainable.  I am persuaded to agree with Respondent.  In any event the suspension of an employee is a matter of procedure.  Its propriety should be challenged by way of review rather than appeal.

Code of Conduct

It is common cause that Respondent used the Tea Growers’ Code of Conduct in this case.  Appellant noted the relevant National Employment Council (NEC) promulgated its own Code in a statutory instrument.  Appellant argued that the NEC Code prevails over the employers’ Code and as such Respondent used the wrong Code.  This argument was not fully developed.  It was not clarified which came first the employers’ or the NEC Code.  Neither was it clarified whether the National Employment Council approved the registration of the employers’ Code.  In any event, this complaint should also have been raised by way of review as it relates to procedure/s.

Internal Remedies

Respondent contended that Appellant did not exhaust internal remedies before lodging his complaint with a Labour Officer.  Appellant stated that he tried to appeal but was thwarted by lack of co-operation by Respondent and by the resignation of members of the Workers Committee.  The Code used provides for an internal appeal.  There is no credible evidence that Appellant made use of that provision.  In fact the contrary appears to be case if one has regard to the record.  There is a letter dated 11th August, 2012 by Respondent which denies receipt of any appeal by Appellant.  Then on 13th August,.2012 Appellant referred the matter to the Designated Agent/Labour Officer of the NEC.  The letter does not talk of his internal appeal but rather his “intention” which was allegedly thwarted.

Merits:

Appellant was charged with conduct inconsistent with implied terms of his contract.  This arose from his conduct during a disciplinary hearing.  He was part of the disciplinary panel.  A written statement by a witness, S. Jochoma, is filed of record.  The relevant part read,

“Again I could not give my submissions as Mr. S. Magada (Appellant) shouted at me to stop proceeding with my submissions since 14 days had lapsed.  He was also blocking me from speaking using his palm with hands always raised towards me.  I can say Mr. S. Magadu had taken control of the whole process, overriding the Chairman.”

The Chairman of the disciplinary panel, F. Domboka, also provided a statement.  It confirmed the “disruptive” behaviour of Appellant.

Appellant wrote an apology dated 2nd August, 2012.  It read, in part, as follows –

“Sir I am very sorry if I offended you in the hearing of Paul Nyaruwata.  To my senses I thought I was doing my duty as a workers ... unknowingly that in the other hand it was going to put me into ...pit.”

Appellant was required to sit in the disciplinary panel to determine charges of misconduct against a fellow employee.  In that capacity he was supposed to show impartiality.  However he turned himself into the employee’s advocate.  In a zealous attempt to defend his “client” he behaved in a rude, disorderly and disruptive manner.  He did the opposite of what was required of him.  It is no defence to say that he was not engaged in duties under his employment contract.  He certainly had an implied duty to conduct himself in a civil and orderly manner at the workplace and towards his fellow employees.  I am satisfied that that charge of misconduct was proved on a balance of probabilities.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

............................................

G. MUSARIRI

JUDGE