Samuel Gorotoma v Cargo Carriers International Hauliers

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/150/2016
HARARE, 16 FEBRUARY 2016 &
18 MARCH 2016
CASE NO LC/H/883/2013
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/150/2016

HARARE, 16 FEBRUARY 2016 &			                    CASE NO LC/H/883/2013

18 MARCH 2016

In the matter between

SAMUEL GOROTOMA							APPELLANT

Versus

CARGO CARRIERS INTERNATIONAL				RESPONDENT

HAULIERS

Before the Honourable P Muzofa J

For the Appellant	T J S Chakabva  (Legal Practitioners)

For the Respondent     S Noormohamed (Legal Practitioners)

MUZOFA J:

The appellant was employed as a truck driver from 2008 until 2 October 2013 when he was dismissed. He then noted an appeal to this court.

The matter began with a letter that was handed to the respondent’s human resources department. The court was not favoured with a copy of the letter. The letter was purported to have been authored by some drivers. They set out certain grievances relating to starting times and finishing time. The appellant was one of the signatories. The appellant was a member of the worker’s committee.

After management received the letter the appellant was charged in terms of paragraph 6 of the respondent’s Code of Conduct for “Inciting or taking part in unlawful industrial action” from July 2013 to September 2013.

A disciplinary committee heard the matter and at decision making time there was a deadlock. The matter was referred to the Chief Executive officer (CEO) to make a decision in terms of the applicable Code of Conduct.

The Chief Executive Officer found the appellant liable and a penalty of dismissal meted.

Dissatisfied by the findings the appellant has approached this court on appeal.

Nine grounds of appeal were set out on the notice of appeal. These impugn the CEO’s decision by concluding that there was a collective job action, that the appellant was the author of the letter, that the CEO introduced new issues that were not before the disciplinary committee, that the appellant was not heard in mitigation, that irrelevant previous convictions were taken into account and that there was no evidence against the appellant, he was victimised for being a member of the workers’ committee.

I will address the grounds of appeal in turn.

The first ground of appeal impugns the CEO’s finding that there was a collective job action. It was submitted for the appellant to support the allegation that there was a collective job action and that the appellant incited or participated in such a collective job action.

I agree with the appellant. In terms of section 2 of the Labour Act [Chapter 28:10] (“the Act”) a collective job action is defined as “an industrial action calculated to persuade or cause a party to an employment relationship to accede to a demand related to employment and includes a strike, boycott, lock-out, sit-in or sit-out or other such.”

The undisputed facts are that there was a letter from drivers which among other things indicated that drivers will start work or driving at 0730 hours to 1700 hours. The complainant interpreted the letter as a challenge to management decisions by demanding to work the said hours. It was also shown `That on the alleged date the appellant commenced work at 0723 hours. The appellant’s contract did not set out the times he was expected to start and finish work. However it was agreed that drivers were supposed to plan their work between 0400 hours to 2100 hours. The appellant drove during the recommended time.

The complainant conceded that on the day in question the appellant’s transit time was a good performance. It was also conceded that the appellant did not engage on a go-slow. I say this because of what the complainant Mr Tawira said under cross-examination which was as follows:

“Mr Hute:	On the day in question Mr Gorotoma’s transit time was 9 hours 14 minutes. What wrong did he do? Is it not that he performed well?

Mr Tawira:	He did not do anything wrong with regards to transit time. His transit time was actually a good performance.

Mr Hute:	Apart from this day, confirm that there is no other day that Mr Gorotoma went on a go slow?

Mr Tawira:	If we had any other charges similar we would have charged him.”

That exchange demonstrated that the charge related to one day and apparently on that day the appellant’s performance was good. From the contract entered between the parties the real performance indicators were the hours worked which I believe are the transit times, it was supposed to be 47 hours. Specific routes had prescribed transit times. The appellant delivered in terms of his contract there is no way he could have been classified as a person on go slow.

In respect of the allegation that he incited other drivers there was no evidence. The letter written to management even if it was accepted that it was written by the appellant did not prove the charge. The letter was not addressed to the drivers, it was addressed to management. I did not hear the appellant to claim that in the event that management does not do something the drivers will engage in a collective job action to pressure management to accede to their demands. This is the underlying basis of a collective job action. The respondent failed to show this.

The complainant also confirmed that at no time did the appellant address the drivers with a view to encourage them to engage in a collective job action.

In my view as correctly stated the appellant was being persecuted for delivering a letter that management called illegal. It was not disputed that the appellant’s role was in a representative capacity, as a member of the worker’s committee.

In terms of section 24 (1)(a) of the Labour Act a workers’ committee shall represent the employees concerned in any matter affecting their rights and interests. If indeed the drivers had concerns about the driving time it’s a matter in their interest. The appellant together with other workers’ committee members had every right to deliver the concerns of their members to the respondent otherwise they would fall foul of section 9 of the Act. Holding the appellant accountable for delivering such a letter to the respondent is a limitation to the committee’s work. This is unacceptable and goes against the very grain of democracy in the workplace. That letter was supposed to herald engagement in respect of the issues raised. Preferring charges on the appellant is tantamount to silencing the workers. This should be condemned in the workplace.

In any event during the disciplinary proceedings there was no evidence of the other drivers who were incited to engage in the alleged collective job action. The CEO in his determination made other considerations that were not placed before the disciplinary committee. He fell into error, the appellant was not given an opportunity to respond to all the listed incidences. He was not charged in respect of those incidences and therefore cannot be liable. See Standard Chartered Bank v Matsika 1996 (1) ZLR 123 (S).

There was no evidence to found the charge preferred against the appellant. The appellant demonstrated that the decision was grossly unreasonable in view of the proved facts. On that basis this court can interfere with the decision of the CEO.

The foregoing disposes of grounds of appeal one, two, three, five, six and nine. The grounds of appeal are merited and therefore succeed.

It was also submitted that the CEO erred by holding that the issue of overtime had been finalized. This ground of appeal does not further the appellant’s case. A finding either way would not impact on the issue of the collective job action in view of my finding that no such collective job action was engaged in by the appellant.

The appellant submitted that the CEO considered aggravating circumstances without hearing the appellant’s submissions. The records of proceedings do not indicate that the appellant addressed the CEO in mitigation. I was not referred to any provision in the Code of Conduct which provide for such addresses. However it is a principle of justice that a party is heard before a decision that impacts on him is made. In this case it was not done.

It was also raised that the CEO took into account irrelevant previous convictions. Indeed the appellant had previous convictions the last one was on 23 August 2012 where he was charged for failure to comply with standing instructions and was given a written warning.

The CEO considered the matter in October 2013 over a year later. There was no evidence on the applicability of previous convictions. However what is clear is that the charges forming the basis of the previous convictions were not related or similar to the one before the CEO. It has been held that for a previous conviction to be relevant it must be for the same charge as the one under consideration. Standard Chartered Bank v Richardson 2000 (1) ZLR 153 (S). This was not the case in case.

The appeal is merited.

The appeal be and is hereby upheld.

The decision by the Chief Executive Officer be and is hereby set aside.

The respondent is ordered to reinstate the appellant to his position from date of unlawful dismissal without loss of salary and benefits alternatively payment of damages in lieu of reinstatement.

Masinire & Chakabva, appellant’s legal practitioners

Ahmed & Ziyambi, respondent’s legal practitioners