Thomas Maramba v Bindura Haulage (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/278/16
HELD AT HARARE 8 MARCH 2016
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/278/16

HELD AT HARARE 8 MARCH 2016				CASE NO LC/H/REV/132/15

& 6 MAY 2016

In the matter between:

THOMAS MARAMBA					Applicant

And

BINDURA HAULAGE (PVT) LTD			Respondent

Before The Honourable P Muzofa, Judge

For Applicant			L Chimutashu (Trade Unionist)

For Respondent		F Mahere (Legal Practitioner)

MUZOFA, J:

This is an application for review of a decision made by the respondent.

The applicant was employed as a truck driver.  During the course of his duties it was alleged he committed some act of misconduct sometime in August 2015.  He was charged in terms of the applicable Code of Conduct.  He was found liable and dismissed with effect from 14 October 2015.  An internal appeal was unsuccessful.

Three grounds for review were set out on the notice for review.  The first issue raised was whether the respondent erred by considering a previous written warning the second issue was on the appropriateness of the respondent’s managing director standing in as complainant and subsequently whether the appeals authority was properly constituted.

The third ground for review was unclear.  The applicant raised issues on the merits of the case.  That he actually reported the oil leak and took measures to avoid oil leakages.

At the onset I must point that the third ground for review was not properly before the court as correctly pointed out by the respondent.  An application for review is distinct and separate from an appeal process.  An appeal addresses the merits of a case and an application for review is usually confined to the procedural aspects of the case. Appeals are provided for in terms of section 92 D and 92 E of the Labour Act while reviews are provided for in terms of section 92 EE of the same Act.

A party who wishes to note and appeal an application for review can do so at the same time in terms of rule 15 (3) of the Labour Court rules.  This is the only time the grounds of appeal and grounds for review can appear concurrently.

In casu applicant has approached the court on review.  He should therefore have confined himself to procedural issues of his case.

The third ground for review which seemingly address the merits of the case should therefore be struck off, it being improperly before the court.

The first ground for review has no merit.  The following facts were common cause between the parties:

that the applicant had a relevant previous conviction and was issued with a final written warning on 27 October 2014.

that the previous offence was similar to the offence he was facing in October 2015.

According to the applicant the final written warning lapsed in September 2014.  I do

not agree.  Simple calculation show that from 27 October 2014 twelve months later would be 27 October 2015.  The applicant was found guilty on 14 October 2015 well before the lapse of the applicable twelve months.  The applicant must have surely fallen into error in the calculation of the period.

The disciplinary committee was therefore correct to dismiss applicant by taking into account the final written warning. Dismissal was within its discretion, it did not exercise its discretion unreasonably.

It was not disputed by the applicant that the previous offence wherein he was given a final written warning was similar to the latter offence.  It is trite that dismissal is a peremptory progression for the commission of an offence in the same category for which a previous final warning has been given in terms of the applicable code.   See generally Standard Chartered Bank of Zimbabwe Ltd v Richardson 2000 (1) ZLR 153 (SC).

There was no procedural irregularity in this instance, the first ground for review is therefore dismissed.

The second ground for review relates to the composition of both the disciplinary committee and subsequently the appeals authority.

It was submitted for the applicant that the complainant was one of the managing directors.  This was irregular in that in terms of Section E.1 of the Transport Operating Industry Agreement (the code) Statutory Instrument 67 of 2012 an appeal against the decision of a disciplinary committee lies to the Chief Executive Officer.  A Chief Executive Officer is defined in the definition section of the code A4 as ‘managing director, partner or proprietor i.e. the person who is the highest authority in the enterprise/group of companies.’

To that extent T J Reid being a managing director was supposed to be an appeals authority and not a complainant.  Applicant had an immediate supervisor who could have been the complainant.

On that basis the appellant sought an order for damages since reinstatement was no longer tenable in the circumstances.

It is trite that where procedural irregularities are alleged.  The party alleging such irregularities must show that some prejudice befell him as a result of the procedural irregularities. See Nyahuma v Barclays Bank (Pvt) Ltd SC 67/05.  It is not all procedural irregularities which vitiate proceedings.

The code does not prescribe who should be a complainant.  To that end I find no procedural irregularities in respect of the disciplinary proceedings.

The appeals authority was one David White a general manager. Clearly this was in violation of section E.1 of the code that an appeal was to lie before a Chief Executive Officer.  According to the definition of a Chief Executive Officer a general manager is not a Chief Executive Officer, or a managing director to qualify to hear appeals.

The respondent submitted that the whole process from the disciplinary proceedings to the appeal gave applicant a fair and just hearing.  There was no prejudice that was caused on the applicant as a result of the improperly constituted appeals authority.

For the applicant it was submitted that the presence of the managing director as complainant lended some pressure on all the disciplinary committee members to convict and even the appeals authority.  This was the prejudice.

I cannot agree with the applicant, the allegation of the prejudice is farfetched.  There was no challenge on the merits of the case so the pressure to convict the applicant would not be a sustainable submission.  The facts were clear.

I am inclined to agree with respondent.  Indeed it would have been appropriate that some immediate supervisor be the complainant so that T J Reid would be an appeals authority.  However having said that, despite that anomaly the applicant received a fair and just hearing, the disciplinary committee was properly constituted.

The appeals authority was a fairly senior officer in the respondent company.   Clearly he was appointed to avert prejudice in having T J Reid handling the appeal.  The respondent should be warned though to comply with the code.

In such a case I prefer the approach taken by the court in the case of T Muswenya v Standard Chartered Bank SC 80/04.  In that case the court considered whether if indeed the procedural irregularities were committed would the outcome of the case be any different?

In casu even if another managing director had considered the internal appeal the outcome would have been the same.  I say this because the record of the disciplinary proceedings is clear.  There was evidence on the commission of the offence.  The final written warning was still live and was correctly taken into account.

There was no prejudice that befell the applicant as a result of a general manager hearing the appeal.

From the foregoing the following order is made.

The application for review be and is hereby dismissed.

Gill, Godlonton & Gerrans, respondent’s legal practitioners