Tafadzwa Garakara V Easipark Harare (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/2/2020
HARARE, 16 FEBRUARY 2017
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE             JUDGEMENT NO. LC/H/2/2020

HARARE, 16 FEBRUARY 2017                                         CASE NO. LC/H/54/16

AND 10 JANUARY 2020

In the matter between :-

TAFADZWA GARAKARA						Appellant

And

EASIPARK HARARE (PRIVATE) LIMITED			Respondent

Before Honourable B.T CHIVIZHE, J

For Appellant:	 	Ms S. Banda (Legal Practitioner)

For Respondent: 		Mr B. Furidzo (Legal Practitioner)

CHIVIZHE, J:

This is an appeal against the determination by the Negotiating Committee finding the Appellant guilty of ‘Sabotage’ in terms of the National Employment Council for the Commercial Sector Code of Conduct (hereafter referred to as “the Code”).

The material background facts to the matter are as follows. The Appellant was employed by the Respondent as a Parking Marshall. On some date in June 2015 he was charged with sabotage and violence and other related offences under the provisions of the code. The allegations behind the levelling of the charges were that the Appellant had withdrawn his labour by engaging in an illegal collective job action. It was Respondents contention that from the 14th of January 2015 to 26th January, 2015 the Appellant had deliberately refused to report to his deployed precinct. He had failed to report for duty for the entire day on certain specific dates. It is common cause the Respondent referred an application for show cause order to this court on the 19th of January, 2015. The court in May 2015 issued a declaratory order to the effect that the collective job action was unlawful. The Respondent thereafter levelled disciplinary charges against the Appellant following findings by the Designated Agents and a recommendation of disciplinary action. The Appellant was thereafter found guilty of the charges. The maximum penalty of Dismissal was consequently imposed. The Appellant was aggrieved and noted an appeal under the provisions of the Code to the Mashonaland Local Joint Committee which falls under the National Employment Council for the Commercial Sectors. The Mashonaland Local Joint Committee dismissed the appeal and upheld the dismissal penalty imposed by the Respondent. The Appellant was still aggrieved and noted a further appeal to the Negotiating Committee of the Council against the decision of the Mashonaland Local Joint Committee. The Negotiating Committee in its decision handed down once again dismissed the appeal. The Appellant being undeterred, then filed the present appeal with this court against the Negotiating Committee decision.

I shall proceed to address the five issues arising out of the appeal grounds.

WHETHER THE PRESENCE OF MR PHILEMON AT THE DISCIPLINARY PROCEEDINGS WAS PROPER.

The Appellant submission was that the Negotiating Committee erred and misdirected itself in falling to find that the presence of Mr Philemon at the disciplinary hearing was procedurally irregular. The Code of Conduct itself did not make provision for the presence of a Legal Practitioner for the Respondent. Mr Philemon however had participated in the hearing, he had led the complainant’s evidence, he cross-examined witnesses, he led complainant’s witnesses and made oral submissions on preliminary issues. It was clear that he had actually participated in the hearing. His presence at the hearing had therefore prejudiced him. Mr Philemon presence had also shifted the scales of justice against him as the employee. The Appellant contention was that the presence of Mr Philemon at the disciplinary hearing therefore rendered the proceedings procedurally irregular. On this basis alone the court ought to set aside the disciplinary proceedings and direct a hearing de novo in order to address the procedural irregularity. The Appellant relied on authorities such as Madoda vs Tangada Tea Company Limited 1999 (1) ZLR 374 (S) which found it improper to include in the disciplinary hearing an official where the Code made no such provision; Minerals Marketing Corporation Zimbabwe vs Mazvimavi 1995 (2) ZLR 353 (S) where the Supreme Court found that the presence of a stranger in the disciplinary proceedings was highly improper and amounted to a procedural irregularity which rendered the proceedings voidable at the instance of the employee.

The Appellant further contended that the argument by the Respondent that Section 69 (4) as read with Section 45 (3) of the Constitution conferred an employer the right to legal representation at a disciplinary hearing was a futile argument. The right to a fair hearing as provided for in Section 45 (3) of the Constitution could not be extended to a juristic person. The Respondent was not accused of an offense and was not the one on trial. It is only the Appellant as the accused person who was entitled to legal representation in terms of Section 69 (4) of the Constitution. In any event the rights enshrined in the Constitution were not obsolete they can be limited under Section 86 of the Constitution in terms of a law of general application. In the present case the Code did not provide that an employer should have representation at the disciplinary hearing. The Appellant further argued that Section 69 (4) of the Constitution was also not applicable in casu as a Disciplinary Committee or Authority is not a court, tribunal as provided under the Constitution. The Appellant relied on Musarira vs Anglo America Corporation 2005 (2) ZLR 267 (S) which in turn referred to Dabner vs South Africa Railways and Habours 1920 AD where the court had found that a board of inquiry is not a court of law and there is no absolute right to legal representation at such a hearing which is mainly a domestic enquiry.

The Respondent submission was that being a legal persona it was entitled to be represented even though the Code made no such provision. The Respondent argument was based on Section 69 (4) as read with Section 45 (3) of the Constitution which allowed for the right to legal representation for every person i.e. juristic as well as natural persons.

The Respondent contention was that the constitution being the supreme law of Zimbabwe overrode the provisions of the Code. It was also Respondent contention that in any event it was clear from the record that Mr Philemon had only been present as the Prosecutor. He did not in any way influence the Designated Officer in arriving at his findings and making recommendations to the employer.

The Respondent further contended that the absence of the employer’s express right of legal representation in disciplinary proceedings could not be taken to mean the right was excluded. In other words the case was not one that called for the invocation of the expressio unisexclusio alterius rule as suggested by Appellant. It could not have been the intention of the crafters of the Code. The Respondent argument was further fortified by Section 69 (4) of the Constitution as read with Section 45 (3) of the Constitution as referred to above. The Respondent further contended that the right of legal representation could not be limited by Section 86 (3) (e) of the Constitution. The decision of the Negotiating Committee on this point was clearly unassailable.

Section 69 (4) of the Constitution provides as follows:

“(4)	Every person has a right, at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.”

Section 45 (3) of the Constitution clearly shows that juristic as well as natural persons are entitled to the rights and freedoms as set out in Chapter 4 of the Constitution. Section 45 (3) reads as follows;

“45. Application of Chapter 4

…

…

Juristic   persons   as   well   as   natural   persons   are   entitled   to   the   rights   and freedoms  set  out  in  this  Chapter  to  the  extent  that  those  rights  and  freedoms can appropriately be extended to them.”

The argument by the Appellant that Respondent being a juristic person was not entitled to legal representation ought to therefore fail. The further argument that section 69 (4) of the Constitution was inapplicable as Disciplinary Committee and Authority is not a court, tribunal, forum as provided in the Constitution also ought to fail. In Zimbabwe United Passengers Company (ZUPCO) vs Onson Mashinga SC 42/2017 the term “forum” was defined to cover meetings between an employee and an employer, clearly the definition can be extended to actual disciplinary proceedings.

The Appellant also submitted that even if the Respondent had rights under section 69 the rights in the Constitution were not absolute as they can be limited under section 86 of the Constitution through a law of general application. In this case the code did not provide that an employer could have representation at the disciplinary hearing.

The Appellant’s argument clearly cannot be sustained. The right to a fair trial as enshrined in section 69 (4) is an absolute right. It is therefore not subject to any limitation. This is apparent from section 86 (3) (e) of the Constitution referred to by Respondent. Section 86 (3) (e) of the Constitution reads as follows;

“86. Limitation of rights and freedoms

3.	No law may limit the following rights enshrined in this Chapter, and no person may violate them ---

…

…

…

…

the right to a fair trial;”                                     ”

Assuming I am wrong in taking this approach it is a trite position at law that the right to be legally represented depends on the provisions of the Code itself. A party has a right to legal representation if the Code provides for it. See MMCZ vs Mazvimavi 1995 (2) ZLR 353 (S). The Code of Conduct in casu clearly excludes the right of representation for the employer whilst providing for the right of representation of an employee by a legal practitioner. The clause provides as follows;

“4. INVESTIGATION OF OFFENCES

Where it appears to a Designated Officer that an employee has committed an offence, he shall forthwith investigate the circumstances of the alleged commission of the offence, and, in particular, shall:

4.1 …

4.2 …

4.3 …

4.4 AFFORD the employee the chance of presenting his/her case either personally or with a chosen representative, and calling witnesses in his defence; the employer shall release such witnesses to enable them to attend the hearing for the purpose of giving evidence.’’

It would therefore follow that the presence of Mr B. Philimon Respondent’s legal practitioner was clearly irregular and forbidden. The enquiry however does not end there. In the same case in MMCZ VS Mazvimavi referred to supra the Supreme Court held that allowing persons other than those specified in the Code to sit and participate in disciplinary proceedings is a procedural irregularity voidable at the instance of the employee concerned. An employee in such a position has to establish prejudice suffered as a result of the irregular composition of the Disciplinary Committee. In this case the Appellant was unable to establish clearly what, if any, prejudice he suffered as a result of the irregularity.

WHETHER THE NEGOTIATING COMMITTEE ERRED AND MISDIRECTED ITSELF IN UPHOLDING THE APPELLANT’S CONVICTION IN THE ABSENCE OF EVIDENCE.

The Appellant submission was that the decision of the Negotiating Committee was substantively incorrect for the reason that the Appellant had been convicted in the absence of evidence to prove his guilt. The Appellant submission was that the Designated Officer had failed to prove that the Appellant intentionally disrupted services on the 14th of January, 2015. His submission was that on the 14th of January, 2015 he was addressed by his Superiors at a morning parade. The evidence in the record showed that Mr Chigiji addressed the workers at the parade and this had delayed his attendance at his work station. There was also evidence to show that the employees were facing challenges with the implementation of gadgets that had been recently introduced and they had been given only 2 hours training. It was Appellant’s contention that his delay in reporting to work station was therefore occasioned by the employer.

The Appellant also disputed that evidence led pointed to his deliberate act of sabotage. Instead his submission was that during the days after the 14th of January, 2015 there was evidence to show Respondent had deployed City Parking Marshall to work at Respondents work station. He was thus constrained to conduct his work and could not cash in at the end of the day. The Appellant submission was that the Respondent itself had sabotaged him from performing his duty at the relevant period. There was thus no evidence led by Respondent to prove the act of sabotage on his part. The finding by the Negotiating Committee upholding his conviction was therefore misdirected.

The Respondent counter-submission on this point was that the Appellant was properly found guilty on the charge of sabotage. The Labour Court through its judgement LC/H/APP/226/15 had declared the collective job action as unlawful. The record was also very clear that evidence had been led to support the charge levelled of sabotage as defined in the Code.

It is trite position at law that an appeal court cannot lawfully interfere with the decision of the employer on the facts. In Zinwa vs Joseph Mwoyounotsva SC 28/15 it was held as follows;

“it is settled that an appellate court will not interfere with factual findings made by a lower court unless the findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or put otherwise the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it or that the decision was clearly wrong.”

The charge levelled against the Respondent is that of Sabotage which is defined in the code to mean

“Any wilful act by an employee to interfere with normal operations of the employer’s business by damaging any plant, machinery, equipment, raw materials or products or by interrupting any supplies of power, fuel materials or services necessary to operations”

It is clear upon a perusal of the record of proceedings that the Appellant’s guilt was established on a balance of probabilities by the Respondent. Evidence was led from Mr Chigiji who testified that he had been summoned on the 14th of January to come and address the employees Appellant included. He had duly attended at the parade arena. He had instructed the employees to take up their gadgets and report at work. This was between 0730hrs and 0750hrs. The Appellant and his workmates had refused to obey the lawful instruction. Further evidence had been led through Appellant supervisor to show that Appellant also wilfully withdrew his labour on diverse dates after the 14th of January, 2015. The end of day financial reports tendered in evidence clearly showed that Appellant interfered with the normal operations of Respondents business thus committing sabotage. The Appellant himself had also during the hearing confirmed that he was not at his work station during the period outlined. The ground of appeal on this point clearly cannot stand.

WHETHER THE NEGOTIATING COMMITTEE ERRED AND MISDIRECTED ITSELF IN UPHOLDING A DETERMINATION NOT SUPPORTED BY REASONS.

The Appellant submission under this ground was that the Negotiating Committee fell into error in upholding the determination by the Designated Officer which determination was not supported by reasons. It was Appellant contention that the Designated Officer was as a tribunal obligated to provide reasons for its judgement on the issues argued before it. Reference was made to various authorities. The Designated Officer was said to have failed to state why he had come to the conclusion that Appellant was guilty or why he had dismissed application made before him.

The Respondent counter position was, contrary to submissions by the Appellant, the Designated Officer had given reasons for his decisions/recommendations. It was his detailed analysis of the evidence that had led to the decision by the Respondent to clearly find Appellant guilty on the charges. The letter of Dismissal penned by the Respondent captured the reasons. The Respondent further submitted that the Negotiating Committee had also given reasons for its decision although the reasons were captured in point form. On the basis of the Supreme Court decision in Jassel Jasine Nyemba vs CMED Private Limited SC 351/14 however the fact that the reasons were written in point form was immaterial what was important was that the reasons were available as the basis of the decision.

The Respondent also raised a further point that the ground of appeal was being raised for the first time in the appeal. On this basis the ground ought to be clearly dismissed as improperly taken before the court. The court agrees totally with the Respondent on this point. The record shows that the Appellant had the opportunity to raise the issue in his first appeal to the Mashonaland Local Joint Committee. He did not. He also did not raise the issue before the Negotiating Committee to whom he appealed next. Having failed to raise the issue in the hearings a quo he was clearly precluded from raising the issue before this court. For this reason the ground stands to be dismissed as I hereby do.

WHETHER THE NEGOTIATING COMMITTEE ERRED AND MISDIRECTED ITSELF IN UPHOLDING A DETERMINATION WHICH WAS MADE WITHOUT CONSIDERING MITIGATION.

The Appellant submission was that the Negotiating Committee erred in upholding his conviction in circumstances where the Designated Officer had not considered mitigating factors. Section 12 B(4) of the Labour Act [Cap 28:01] makes it mandatory for the Designated Officer to consider both mitigating and aggravating factors before passing a verdict or penalty. Although dismissal is the maximum penalty under the Code the Appellant submission was Respondent ought to have properly weighed the factors first before arriving at its verdict.

The Respondent submission was that it was clear from the record that the employer had called upon Appellant to make his submissions in mitigation for consideration before the passing of the final sentence. The Appellant had duly made the submission. The Appellant submission in mitigation had been considered by the Respondent but in view of the seriousness of the charge i.e. sabotage and that it is an offence that ordinarily goes to the root of the employer/ee relationship the employer returned a dismissal penalty. The Respondent relied on case authorities i.e. Toyota Zimbabwe vs Posi SC 55/07; Specsis College vs Chiseri SC 2/13 to support its position.

It is clear upon a perusal of the record the Appellant did present mitigating factors to the Designated Officer and Disciplinary Officer. It is however the position at law as espoused in Mashonaland Turf Club vs George Mutengadura SC 15/12 that the Labour Court has not been conferred unbounded power to alter a penalty of dismissal imposed by the employer. The Labour Court can only interfere with the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of contract of employment where the party has established a misdirection or unreasonableness on the part of the employer in imposing dismissal penalty. The Appellant failed in casu to establish both. The court in the circumstances cannot lawfully interfere with the penalty imposed. The ground of appeal stands to be dismissed.

WHETHER THE NEGOTIATING COMMITTEE MISDIRECTED ITSELF IN FINDING THAT CHARGES WERE PROPERLY LEVELLED IN TIME.

The last ground of appeal is that the Negotiating Committee erred and misdirected itself by dismissing the preliminary issue that disciplinary proceedings were convened out of time. The Appellant submission is that in terms of Part II of Section 4 of the Code the Designated Officer is required to ‘forthwith’ investigate the circumstances of an alleged act of misconduct. He is further required to give his decision in 14 days. The Appellant further submission is the word ‘forthwith’ has been defined in Standard Chartered Bank vs Matsika 1996 (1) ZLR 123 (S) to mean “as soon as reasonably possible in the circumstances”.

In this case the alleged misconduct having occurred between the 14 January 2015 and 26 January 2015 the Respondent had however convened proceedings only in June 2015 a period of 5 months. The delay according to Appellant was unreasonable and certainly not in compliance with the Code. This alone rendered the proceedings null and void. It was Appellant’s further submission that the Designated Officer also erred in accepting the Respondents submissions that the proceedings could only be convened after the show cause order had been granted by the Labour Court in May 2015. The Respondent however was not precluded from convening the disciplinary proceedings even in January 2015. Appellant relied on authorities in Telone (Private) Limited vs Communications & Allied Services Workers Union 2006 (2) ZLR 136 (3) and ZIMPOST (Private) Limited Communications and Allied Workers Union 23/09.

The Respondent submission on this point is that the Disciplinary proceedings cannot be set aside on the basis that they were held out of time. The facts in the record revealed that the Respondent was only able to convene disciplinary proceedings after the Labour Court had through case number LC/H/APP/226/15 confirmed the Show Cause Order. The Labour Court had then in line with section 107 (3) of the Labour Act authorized the Respondent to, inter alia, institute disciplinary action based on each employee’s participation in the unlawful collective job action. As the employees were 183 in number the Respondent had an onerous task of sifting through all evidence to determine the level of participation of each of the 183 employees involved. The Respondent realised that it could only lawfully carry out individual hearings. The delay was therefore justified. The facts in the record show that the Respondent delayed in convening disciplinary proceedings in this case. This was clearly in breach of clause 4 of the relevant Code of Conduct. The Respondent however tendered a plausible explanation before this court for the delay in convening disciplinary hearings. In any event a delay in convening disciplinary hearing being procedural irregularity it is trite position at law that in order for the irregularity to vitiate proceedings one must establish prejudice. See Barclays Bank vs Nyahuma (citation). The Appellant, in casu, failed to establish what prejudice, if any, he had suffered as a result of the delay in convening of disciplinary proceedings. On this basis the ground must also fail.

Lastly it is clear that the Respondent having been convicted of a very serious charge that went to the root of employment a penalty of Dismissal was imposed on him by the employer. This court sitting as an appeal court cannot lightly interfere with the employer’s discretion to impose a dismissal penalty in such circumstances. The court can only interfere in the event of a gross misdirection or unreasonableness. See Mashonaland Turf Club vs Mutangadura SC 5/2012. The Appellant has not alleged either. The appeal therefore clearly stands to be dismissed.

In the result it is ordered as follows;

The appeal be and is hereby dismissed with costs.