Sithabile Hwengere v Unifreight

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/795/14
HELD AT HARARE 5TH NOVEMBER 2014
CASE NO LC/H/724/12
& 21ST NOVEMBER 2014
JUDGMENT NO LC/H/795/14
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/795/14

HELD AT HARARE 5TH NOVEMBER 2014      CASE NO LC/H/724/12

& 21ST NOVEMBER 2014

In the matter between:-

SITHABILE HWENGERE					Appellant

And

UNIFREIGHT						Respondent

For Appellant	Mr L. Chimutashu – Transport and General Workers Union

For Respondent	Mr I.R Mutindindi (Legal Practitioner)

CHIVIZHE, J.

The present matter was brought as an application for review conjoined with an appeal.

The background facts to the matter are as follows;

The Appellant was employed by the Respondent in the engineering Department. She was arraigned before a Disciplinary Committee on the 12th of July, 2012 to answer to two charges viz

Contravention of part III Section 3.3 subsection 3.3.5 (iv) as read with part VII Section 7.5 subsection 7.5.1 of the Unifreight code of conduct, disorderly behaviour

Contravention of Part III Section 3.3.5 (vi) as read with Part VII Section 7.5 subsection 7.5.1 of the Unifreight code of conduct, deliberately refusing to carry out an order in circumstances where the offender is clearly being insubordinate.

The allegations were that on the 16th of May, 2012 there was a work stoppage at Respondent workplace. It was the Appellant’s position that on the date and particular time of work stoppage she was not at work. She had sought authority from her superior to be absent in order to attend to some personal matters. A witness was called and confirmed the position. The Disciplinary Committee consequently found the Appellant not guilty on the first charge. In regards the second charge however on the basis of proven evidence that the Appellant had been requested by the Technical Director to submit a written individual report pertaining to work stoppage and had failed to submit the report Appellant was found guilty. The Appellant on her own admitted that she did receive the letter of request from the Technical Director but had failed to respond because she was of the view that having being absent during the work stoppage she had no obligation to respond to the request. The Disciplinary Committee on the basis of her evidence found Appellant guilty of the charge of deliberately refusing to carry out an order in circumstances where the offender is clearly being insubordinate. The Disciplinary Committee consequently imposed the dismissal penalty.

The Appellant, exercising her right under the Code of Conduct noted an appeal to the Executive Director Personnel and Training. In a letter dated 9 August, 2012 the Human Resources Director dismissed Appellant’s appeal and upheld the dismissal penalty. Still dissatisfied the Appellant then noted the present application for review and appeal with the Labour Court.

The application for review has been noted on the following grounds

The decision to dismiss was so gross and unreasonable in its defiance of logic as to send a sense of shock.

The disciplinary committee was not properly constituted as there was no worker representation.

The Tribunal a quo misdirected itself in upholding that the Appellant had been correctly charged when in actual fact the code in terms of which she was charged had been suspended and or hand not been approved.

The Respondent position is that the relevant code of conduct was registered on the 13th of June, 2012. It was further amended on the 13th of August 2012(copies form part of the record).

The Appellant clearly raised a valid ground for review. The court is fully persuaded that the disciplinary proceedings conducted against the Appellant in terms of the Unifreight Code of Conduct were nullity. This is the reason I say so.

It is clear upon perusal of the record that the original workplace Code of Conduct was indeed registered on the 13th of June, 2000. Through the introduction of Section 101(1)(i) by the Labour Relations Amendment Act of 2005 there was shift in power relations between the employment council and works council. Where the works Council had previous higher status that the employment council under Section 101(1) however the works council could no longer apply for registration of a code in respect of the industry, undertaking at workplace without first referring the code to the employment council for approval.

Section 101(1b) specifically covered a situation where there was already in existence a workplace code and an employment council one was then subsequently registered. Under Section 101(1b) of the Labour Act the code registered by the employment council shall supersede that of the Works Council unless the Work Council refers it to the employment council for approval.

Section 101(1b) to that extents reads as follows;

“Where a code is registered by a Works Council in respect of any industry, undertaking or workplace represented by employment council and the employment council subsequently registers its own code, the code registered by the employment council shall supersede that of the Works Council, unless the works council refers it to the employment council for approval”

It is clear in order for the workplace code such as in casu to remain binding by virtue of Section 101(1b) that code had to be approved by the employment council for approval. The record clearly shows that the Unifreight code being a code originally registered by the Works council would need to be approved.  Such approval was sought and obtained on the 25th of July 2012 from the National Employment Council for the Transport Operating Industry. It follows that before such approval could be obtained the Unifreight code was an invalid code. The code could not be relied upon to level disciplinary charges against the Appellant. The Respondent ought to have relied on the employment council registered code i.e Statutory Instrument 67 of 2000. It is trite that where an employer has relied on an invalid code of conduct the dismissal of the employee is also invalid. See Zimbabwe Newspapers (1980) Limited Vs Ndhlovu 2000 (1) ZLR 127 SC.

Having come to this conclusion it is no longer necessary for this court to determine the rest of the grounds for review or the appeal for that matter. The disciplinary proceedings commenced by the Respondent being based on an invalid code of conduct clearly ought to be set aside and the Appellant reinstated to her previous position without any loss of salary and benefits

It is accordingly ordered as follows;

The application for review succeeds.

The disciplinary proceedings instituted by the Respondent being premised on an invalid Code of Conduct at the time be and are hereby set aside.

The Respondent shall reinstate the Appellant with effect from date of unlawful dismissal without any loss of salary and benefits

In the event that reinstatement is no longer an option, Respondent shall pay Appellant damages in lieu of reinstatement quantum of which is to be agreed upon by both parties failing which either party can approach the Labour Court for quantification of damages.

Matsikidze & Mucheche, respondent’s legal practitioners