Securatech Alarms v Gamariel Guyo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/210/2013
HELD IN HARARE, MAY 29, 2013 & 27 SEPTEMBER, 2013
CASE NO. LC/REV/H/102/2012
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/210/2013

HELD IN HARARE, MAY 29, 2013 & 27 SEPTEMBER, 2013	CASE NO. LC/REV/H/102/2012

In the Matter Between

SECURATECH ALARMS					       	APPLICANT

And

GAMARIEL GUYO				       			 RESPONDENT

Before The Honourable E. Makamure         : Judge

FOR THE APPLICANT     		: Mr L. Godobi (Human Resources Manager)

FOR RESPONDENT		  	: Mr T. Mhlanga (Trade Unionist)

MAKAMURE  J.

This is an application for review of the decision of the National Employment Council for Electronics, Communications and Allied Industry (NEC).  The decision of the NEC (page 8 of the record) states as follows in part:

“Findings of the NEC Appeals Committee based on supplied evidence and further investigations.

The unfortunate incident of 22 May 2012 seems to stem from circumstances involving more than just the accused ...”  (Emphasis added)

The facts of the case are as follows:

The appellant is in the business of providing security (guards).  On or about the 22nd of May 2012 one of the appellant’s clients raised an alarm.  This meant that something was wrong.  The respondent was on duty.  He was party to a team that went to check the premises in question.  Two other people who included a driver were the other members of that team.  Upon arrival at the scene it was observed that the main gate or entrance to the premises was locked.  However, the screen door to the building-which door is further from the main entrance – was observed to be partially open.  Further the lights were still on inside the building.  Ordinarily that screen door would have been closed and locked and the lights would have been switched off.  The respondent then made a report that everything was in order (see p. 27 of the record).  The team left the premises.

Another alarm from the same premises was later raised.  The appellant’s team together with a relative of the clients went to the premises together.  It was the second time that the team went to the same premises.  They found that the clients had been robbed after having been gagged and their hands tied. While at the same premises, the respondent made his observations.  His attitude is that there was no proof of injuries to the clients in question in support of their assertion of having been gagged and tied.  Further the respondent is of the view that the other members of his team ought to have been charged together with him.  The respondent avers that it was improper for him to have been charged alone and yet at the material time he was in the company of other employees.

It must be pointed out that it is the prerogative of the employer to prefer charges of misconduct.  In the case of Lancashire Steel (Pvt) Ltd v Elijah Zvidzai SC 29/95 the Supreme Court held that the fact that other employees (who were not charged) may have been guilty is not at law relevant as long as the commission of an offence has been proven against the person charged.

From the facts it is clear that the respondent’s report was misleading.  The respondent gave the impression that all was well when in fact that was not the position.  The client needed assistance and yet the respondent gave the impression that everything was alright.  It was the duty of the respondent to ensure the safety of the clients.  The respondent failed in his duty.  It is regrettable that the respondent wants or wanted proof of physical harm having occurred to the clients for him to believe their plight.  The respondent’s primary role was to protect the interests of his employer by ensuring the safety of the clients.  The fact that an alarm was raised placed an obligation on him to find out at least why a door which ought to have been closed was not.  He should have investigated why lights which were supposed to have been off were still on.

The respondent has submitted that the grounds of review are not clear.  That is so.  However, the applicant clarified the position.  The Court has taken a robust view of the matter in the interests of justice and finality to litigation [See Ndebele v Ncube 1992(1) ZLR 288(S)].  Firstly, it is observed that the representative of the appellant is not a legal practitioner.  As such the Court took the view that it may have been difficult for him to articulate the grounds.  However, when asked to explain himself he was able to aver that the procedure adopted by the Appeals Committee was improper.  It is clear from the findings of the Appeals Committee that the committee made further investigations without giving the employer a chance to comment on its findings on the “further investigations”.  That procedure was improper as it prejudices the party who did not have a second chance.  Further and in view of the evidence on record it is clear that the respondent committed an offence.  So rather than being bogged down with technicalities the Court was of the view that the matter could be finalised on the basis of the record and the addresses presented [See Dalny Mine v Banda 1991(1) ZLR 220].

I am therefore satisfied that it was improper for the NEC to decide on the basis of evidence which was not tested during the initial hearing.  Further it is clear that on a balance of probabilities the offence committed by the respondent was proved.  There is therefore merit in the application.

Accordingly, it is ordered that the application for review be and is hereby granted.  There shall be no order as to costs.

Human Resources Office, Representatives for the Applicant.

Electronics Communications Allied, Workers Union, Representatives for the Respondent.