Tel-One Private (Limited) V Batsirai MEKI

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/406/13
HARARE 23rd MAY & 30th AUGUST, 2013
CASE NO LC/H/101/10
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/406/13

HARARE 23rd MAY & 30th AUGUST, 2013		   CASE NO LC/H/101/10

In the matter between:-

TEL-ONE PRIVATE (LIMITED)			Appellant

And

BATSIRAI MEKI					Respondent

Before The Honourable G Mhuri, Senior President

For Appellant :	Mr A.K. Maguchu(Legal Practitioner)

For Respondent:	Ms Nyama and

Mr Peresu (Legal Practitioners)

MHURI, G:

Respondent was charged with four acts of misconduct arising out of an act of unlawful re-connecting telephone lines of clients whom Appellant had disconnected for defaulting in their payments for services rendered.

The charges were:-

Category 3.8(iv)

Unbecoming or objectionable behaviour i.e. to say – abuse of office or position

Category 3.8(viii)

Conducting oneself or behaving in a manner that brings or is likely to bring the name of the Corporation into disrepute or to tarnish the image of the Corporation.

Category 4.23

Gross disregard of standing procedures/rules including disregarding standing rules/procedures resulting in potential financial loss/prejudice to Corporation

Category 4.24

Illegal installations or tampering with phones and/or unauthorised transfers of phones.

Respondent was found guilty by the Regional Hearing Committee of four out of the five charges initially preferred. A dismissal penalty was imposed. Aggrieved, Respondent appealed to the National Hearing Committee which set aside the penalty of dismissal and substituted it with a 3 months suspension without pay and benefits.

It is against the National Hearing Committee’s penalty that Appellant noted this appeal.

By consent, on the 23rd May 2013 Respondent amended her notice of response to read;

“In limine

The decision of the Regional Hearing Committee was unreasonable in that it was a result of unfair splitting of the charges by Appellant.

ON THE MERITS

The Appellant does not have a right of appeal in terms of the code of conduct

The appeal lacks merit

The National Hearing Committee analysed all the facts before it and came to a satisfactory well-reasoned conclusion

It was Respondent’s submission that there was splitting of charges by Appellant in that all the 4 charges arose out of a single transaction. As a result of the splitting of the charges, Respondent was prejudiced in defending herself, and that the penalty of dismissal imposed by the Regional Hearing Committee was as a result of it viewing all the charges as aggravated.

It was therefore Respondent’s prayer that the Court looks at all the 4 charges, and see which one is appropriate, determine whether the 3 months suspension or dismissal is appropriate and then expunge the remaining 3.

From Respondent’s submission and prayer on the preliminary issue, I find that Respondent is trying to cross appeal though the back door, a procedure I cannot allow. Respondent ought to have raised this issue of splitting of charges right at the onset of these proceedings. She did not raise it before the Regional Hearing Committee, she did not raise it as a ground of appeal to the National Hearing Committee. She did not raise it in her response to the appeal either until the date of hearing of the appeal when she sought an amendment. I was not persuaded by the response that it is because she was a self actor. Before the Regional Hearing Committee it was established that when she was to be served with the charges letter, she refused indicating that she wanted to seek advice from a Unionist. This was in the presence of worker representatives. In reply to Appellant’s submissions on the point, the Respondent then conceded, rightly so in my view that the issue of splitting of charges is not and cannot be a point in limine but a defence in respect of the sentence.

Secondly, is it proper for this Court to determine which charge out of the 4 charges would be the appropriate one and then confirm which of the penalties is the correct one. I do not think so. See the case of:- ZIMASCO (PVT) LTD. V JAMESON CHIZEMA SC 38/07 in which the point was made that the Labour Court cannot substitute charges.

The second point in limine raised by Respondent is that in terms of its Code in particular Section 9, Stage 2 Appellant has no right of appeal against the decision of the National Hearing Committee. Stage 2 reads as follows:-

“The decision of the National Hearing Committee is final and any employee who is not happy with the decision of the National Hearing Committee can appeal to the Labour Relations Tribunal within 14 days from the date of receipt of the National Hearing Committee’s decision”

It was Respondent’s submission that Appellant is an employer and by virtue of the expressio unius est exclusion rule Appellant has no right of appeal.

Respondent submitted further, that a Code by its very nature is an agreement between the employer and employee that their relationship will be governed in a certain manner.

Reference was made to Clause 4(c) and 5(d) of the Code and the signing by both parties on the last page of the Code. It was Respondent’s contention that by signing the Code, the employer agreed to the limitations of its right of appeal to the Labour Relations Tribunal (Labour Court).

The term “employee” is not defined in the Code. Under the interpretation Section of the Code, “member” means an officer or employee of the Corporation. Under the interpretation section of the Labour Act [CAP 28:01] employee is defined as;

“any person who performs work or services for another person for remuneration or reward on such terms and conditions as agreed by the parties ...........”

Employer is defined as ;

“any person whatsoever who employs or provides work for another person and remunerates or expressly or tacitly undertakes to remunerate him ..............”

In casu it is not an issue that Respondent is the employee and Appellant the employer. The issue is whether Appellant as an employer has a right of appeal to this Court against a decision of the National Hearing Committee.

In order to determine this issue, one has to look at the Code that binds both parties, (the employer and employee) and in particular the terms used therein and in interpreting them ascertain the intention of the parties from the language used.

Part III Clause 8 of the Code provides for the Inquiry and Disciplinary Procedure. In these proceedings, the employee who is the subject of disciplinary proceedings is referred to as a member and the official conducting investigations on behalf of the Corporation (employer) is the Controlling Officer. It is to the Controlling Officer that the Secretary/Advisor shall communicate the determinations of the Regional Hearing Committee and National Hearing Committee (Clause 8.2.2.(6)(g) and Clause 8.2.3.(d) and Clause 8.2.4(d).

Clause 8.2.4. provides for the proceedings of the National Hearing Committee.

Clause 8.2.4.(3) provides :-

“the hearing/review shall be conducted on record ............ Parties may be called to present their grounds of appeal and/or clarify unclear points”

Sub clause (4)(a) reads:-

“At the commencement of a National Hearing Committee meeting the Chairman:-

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

may call upon the member to elaborate on the grounds of appeal

shall invite (the respondent) to answer to the grounds of appeal

(b)	After the National Hearing Committee is satisfied with the presentations/submissions from both sides, the two parties shall be asked to leave .............

(c) 	...........

(d) 	The Secretary/Advisor shall in writing communicate the decision of the National Hearing Committee to both parties ...................

(Underlining is for emphasis)

Clause 9 provides for the Appeal Procedure. It reads:-

“N.B. There is no appeal against a verbal warning and/or a first written warning issued by a Controlling Officer in accordance with this Code”

It is clear from the above that neither the employee nor the employer can appeal against the issuance of a verbal or a first written warning.

STAGE 1 reads

“Any employee who is not happy with the decision of the Regional Hearing Committee can appeal to the National Hearing Committee within 2 days of receipt of decision of the Regional Hearing Committee”

STAGE 2 reads

“The decision of the National Hearing Committee is final and any employee who is not happy with the National Hearing Committee can appeal to the Labour Relations Tribunal within 14 days from the date of receipt of National Hearing Committee’s decision”

It is Clause 9 under these two stages that the word employee is now used. In all the preceding clauses, the words member (referring to the employee), respondent (referring to the Corporation’s representative) parties (referring to the employee and Corporation’s representative) sides (referring to the employee and Corporation representative).

The use of these different terms in the various clauses is a clear indication by the drafter of their intention

“According to the golden rule” of interpretation the language in the documents is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument”

Per JOUBERT J.A.

COOPERS LYBRAND AND ORS.

V

BRYANT 1995 (3) SA 761 (A) at 767 D – F

“words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to”

Per McNally J.A.

CHEGUTU MUNICIPALITY

V

MANYORA 1996 (1) ZLR 262 (S) at 264 D – E

Using this cannon of interpretation, it is no doubt in my mind that by specifically using the word “employee” the drafter’s intention was not to afford the employer the right to appeal against the decision of the National Hearing Committee.

I find that the expressio unius est exclusion alterius rule applies in casu. The express mention of the word “employee” in Clause 9 excludes employer. If it was the intention of the drafters to afford the employer a right of appeal, they could have specifically stated so by the use of such words as “any party” instead of “any employee”.

The Code of Conduct is an agreement between two parties (employers and employees) where they agree to be bound by the provisions therein contained.

In Clause 5 management bound themselves to

manage and conduct the business of the Corporation subject to the provisions of the law and this Code

maintain order, discipline efficiency and promote demote, suspend discharge a member for proper cause in accordance with the provisions of this Code

take all reasonable steps to ensure that they and all those who act in their capacity observe this Code and use agreed procedures

and on the other hand the Union/Member representatives bound themselves to

co-operate with management in establishing effective disciplinary procedures

ensure that members familiarise themselves with the provisions of the Code

This Code is still valid and binding on the parties. It is for the parties to amend it if they are of the view that certain provisions need amendment.

Having found that Appellant has no right of appeal to this Court, the appeal must be struck off the roll.

Accordingly it is ordered that the appeal be and is hereby struck off. Appellant to bear the costs.

Dube, Manikai & Hwacha – Appellant’s Legal Practitioners

Honey and Blanckenberg – Respondent’ Legal Practitioners