T N Harlequin (Pvt) Ltd v Newman Dzugari & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/774/2014
HARARE, 03 & 21 NOVEMBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/774/2014

HARARE, 03 & 21 NOVEMBER 2014		           	      CASE NO. LC/H/895/13

LC/H/896/13

LC/H/897/13

In the matter between:-

T N HARLEQUIN (PVT) LTD					Appellant

And

NEWMAN DZUGARI						1st Respondent

And

TRYMORE RUWIZHI						2nd Respondent

And

ARMATO TEMBO							3rd Respondent

Before Muzofa, J.

Maxwell, J

For Appellant		Mr. T.W. Nyamakura  (Legal Practitioner)

For Respondent		Mr. D. Chiwara (CPFWUZ)

MAXWELL, J:

This judgment is for three matters which were heard separately but with similar facts.  The Respondents were employed by the Appellant.  Allegations are that they were jointly charged and convicted of theft.  A penalty of dismissal was imposed.  Respondents appealed to the NEC for the Plastics Manufacturing Industry.  The NEC determined the matters individually resulting in three determinations being issued nullifying the dismissal of the Respondents and reinstating them without loss of salary and benefits.  Appellant was aggrieved and appealed against each of the determinations.  Three records were opened in this Court.

An application for consolidation of the matters having been turned down, the matters were placed before us.  The grounds of appeal which are the same in all the three matters are:

The NEC Appeals Committee erred at law and misdirected itself in reversing Respondent’s dismissal on the basis of an error by Appellant in quoting the proper provision of the employment code of conduct when Respondent was initially charged, when that issue had not been raised by the Respondent and in any event the charge remained theft which is provided for in the employment code of conduct.

The NEC Appeals Committee erred at law in ordering reinstatement when at law it ought to have ordered a rehearing assuming the decision of the employer could be impugned on the basis of an error in quoting the correct section in the employment code of conduct.

The NEC Appeals Committee erred at law in reversing the dismissal of Respondent on the basis of a technicality without evidence showing that he was prejudiced by the error in quoting the relevant provision in the employment code.

Respondents filed similar responses.  They averred that the NEC Appeals Committee’s decision was correct as the Appellant had cited the wrong charge according to the code of conduct.  They submitted that the remedy of reinstatement was appropriate as the procedures were not followed.  Further that the Appellant was not stopped by the Appeals Committee from doing a rehearing.

At the hearing of the first matter it was submitted for Appellant that the NEC made a finding that Appellant had failed to properly cite the charge against Respondents.  Appellant had referred to PART IX of the Code instead of Section 2 Part 7 (c).  The offence was theft.  It was submitted that there was no prejudice to the Respondents as they were aware that they were being charged of theft.  Appellant was of the view that as the NEC had not considered the merits of the matter, the remedy should be a remittal of the matter to the NEC for consideration of the merits.

Respondent’s representative argued that the NEC’s decision cannot be faulted.  He submitted that Appellant should have complied with the decision of the NEC and reinstitute the proceedings afresh.  He further submitted that there was a doubt that Respondent committed the offence as he had been acquitted by the criminal court.  Respondent’s representative also raised issues of procedural irregularities in the composition of the disciplinary committee.

During the hearing of the second matter, Appellant proffered the same arguments.  Respondent’s representative then indicated that the appeal was no longer opposed.  In his view, the information in the Court record was inadequate and a remittal to the NEC was acceptable.  He indicated that this position applied to all three matters.  The parties were invited to draft a consent order, which they did.  The draft order was amended as a result of the following considerations;

even though the NEC determination referred to the wrong citation of the charge, that was not the only issue deliberated upon.

the records of proceedings for Newman Dzugari and Armato Tembo states the following on Deliberations,

“In its deliberations, the following were noted:

Violation of the provisions of the NEC Code regarding who should preside over disciplinary matters.  Section 7 of the Code clearly state the composition of the disciplinary committee: two management and two workers committee representatives.  In the hearing of the matter at hand, Ms Daniels who is a management representative sits as the hearing officer/disciplinary authority.

Presence of legal practitioner representing employer at the workplace is intimidating particularly where the employees are low level employees who are not knowledgeable of the law.  Where such hearings are supposed to be simple and informal, the presence of the lawyer complicates the proceedings and at the same time leaving the weaker party unprotected.

The issues surrounding the missing shovels were not thoroughly investigated.

Lastly and most importantly, employer cited non-existent charges and penalties.  The hearing was conducted on the basis that Newman Dzugari/Armato Tembo had violated Section H paragraph (ix) of the NEC Plastics Code of Conduct.  Newman Dzugari/Armato Tembo was found guilty as charged and a penalty of dismissal was given.  The cited section does not exist in the NEC Plastics Code.  The whole process therefore becomes a nullity.”

No hearing was conducted for the matter of Trymore Ruwizhi as the Appeals Committee had realized that it is on all fours with the other two matters.  The committee therefore just issued a determination similar to the others.  When the determination of the Appeals Committee was communicated to the parties, reference was made to only the observation listed as 4 above.

In light of the four issues noted by the NEC Appeals Committee it will be inappropriate to remit the matter back to the Appeals Committee as this will not redress the observations made.  As was stated by MCNALLY JA (as he then was) in Dalny Mine v Musa Banda 1999 (1) ZLR 220 procedural irregularities should not be ignored but put right.  In this case this can be done by remitting the matter for a hearing de novo and in a procedurally correct manner.  In Air Zimbabwe (Pvt) Ltd v Chiku Mnensa & Another SC 89/04 the Supreme Court stated that a person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee.  He should escape such consequences because he is innocent.

Respondent’s representative submitted that Appellant should comply with the order of the Appeals Committee and then reinstitute disciplinary hearings.  Reinstatement without loss of salary and benefits is not appropriate in the circumstances of this case.  The Supreme Court has stated that reinstating an employee in the circumstances implies a finding that he is innocent of the charges of misconduct against him by the hearing officer.  See Standard Chartered Bank of Zimabwe Ltd v J. Chikomwe and 211 Others SC-77-2000.

The following order meets the justice of each case.

The appeal succeeds.

The order of the National Employment Council for the Plastics Manufacturing Industry Appeals Committee be and is hereby set aside and substituted with the following;

“(a)	The matter be and is hereby remitted to the employer for the institution of disciplinary procedures de novo within thirty (30) days of this order failure of which Respondents would be deemed reinstated without loss of salary of benefits.

(b)	Respondent reverts back to the position he occupied before the disciplinary hearing.”

Each party shall bear its own costs.

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

Maxwell J.

................................ I agree.

Muzofa J