Tichaona Jaravaza v Unifreight

IN THE LABOUR COURT OF ZIMBABWE               JUDGMENT NO. LC/H/239/2013
HELD AT HARARE ON 13 MARCH, 2013                    CASENO. LC/REV/H/59/12



In the matter between




TICHAONA JARAVAZA                                   –   Applicant

And

UNIFREIGHT                                          – Respondent



Before The Honourable L. Kudya, President

For Appellant       - Mr L. Chimutashu (Unionist)

For Respondent      - Mr R. Matsikidze (Legal Practitioner)



KUDYA, L.


      This is an application for review of the decision by the Respondent to

dismiss the applicant on charges of contravening its Code of conduct. Applicant

is said to have conducted himself in a disorderly manner and deliberately

refused to carry out an order in circumstances where he was held to be

insubordinate.



The facts of the case are as follows:

On 21 June 2012 Applicant was served with a notification to attend a

Disciplinary Hearing. On the same day when he appeared before the

Committee he was advised that his charges were that he had participated in a

work stoppage meeting which was not held according to the dictates of the law
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and that, when he was invited to submit a report to his superior about that

meeting he refused to do so thus demonstrating his insubordination to his

superior.




                                                JUDGMENT NO. LC/H/239/2013


      He was found guilty of the charges and was dismissed from employment.

He appealed internally and the appeal structures upheld his dismissal. It is

against the dismissal of his internal appeal that he has made this application for

review to this court.



      The basis of his review as contained in his application for review is

couched in the following words “Respondent violated Labour Act Chapter 28:01

as amended by applying its unregistered Code and ethics of natural justice . His

actions were contravention of SI 67 of 2012 “



In its response to the application Respondent argued that:

1. A review could be done even before completion of proceedings hence if

Applicant was of the view that an unregistered code of conduct was used he

should have raised it then than to wait until the disciplinary proceedings had

been concluded. The code is registered and applicable.



2. Applicant made an internal appeal on the same Code which he says was

unregistered. He is therefore estopped from denying the fact that the Code is

applicable and in any event,the Code in question is applicable.




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3.Quoting the case of Matoi          vs   ZISCO SC 231 /09 it maintained that an

unregistered Code would remain subservient            to the regulation   and its

observance or non-observance would remain irrelevant to the question of

whether the regulations have been duly complied with.



4. Quoting the case of Makuwaza vs National Railways of Zimbabwe 1997 it

was stated that the court could not substitute its discretion for the employer’s

where an unregistered code was used but where the grounds of suspension/

dismissal were established .


                                           JUDGMENT NO. LC/H/239/2013



4. Proper grounds of suspension and dismissal were established on a balance

of probability and they warranted a penalty no less than dismissal. In the result

the Respondent prayed that the application for review be dismisses with cost on

a Legal Practitioner client basis.



      A reading of the document styled heads of argument and supplementary

heads of argument by the Applicant showed that apart from the issue of the

registration of the code new issues were brought in. These were to do with the

fact that the applicant was not informed timeously of the hearing that is, he

appeared before the hearing on the very day he was served with the

notification hence did not have adequate time to prepare. The applicant was

tried without representation from the workers committee, these were never

invited to the meeting neither did they boycott as alleged. Respondent sought a

show cause order after the dismissal of the Applicant , which order was granted

by consent and it was agreed in that order that no job action took place hence

no one was incited to do such.

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        The powers of review of the court are set out in section 89 of the Labour

Act. Further to that , the grounds upon which a matter can be brought up for

review are also set out in section 26 of the High Court Act. It is also settled law

that whenever a party to the proceedings is brought before a tribunal the audi

alteram partem rule has to be observed. The tenets of this rule are clearly captured

in the case of Chirenga vs Delta Distributors 2003 (1) ZLR 517 (H)



            The charge which the person is facing should also be regular

otherwise nothing would flow from it, if it is irregular. It is also settled law that it

is not the duty of the court to craft charges See Zimasco Pvt Ltd vs Chizema SC

38/07


        “the court is not there to formulate charges or cases for litigants. In cases of this nature the
        court’s brief is to determine, on the basis of evidence placed before it, whether or not a case


                                                           JUDGMENT NO. LC/H/239/2013


        has been proved against the respondent .It needs no emphasis that he who alleges anything
        against another person must prove such allegation”.



        Stemming from the above, the question which has to be answered in this

case is whether indeed before the Applicant was dismisses he had been

afforded all the rights to a fair hearing, was brought on clear charges ,there was

evidence supporting his conviction and the penalty meted was just in the

circumstances?



        Before answering any of the above questions, it is clear form a reading of

the notice of review that the ground of review stated therein is void for

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vagueness. To that extent the Respondent had moved the court to dismiss the

case at the outset for want of clear grounds of review.



      Whilst the court concedes that the manner in which the review grounds

are couched leave a lot to be desired it has however been persuaded by the fact

that the mischief of the Labour Act enshrined in section 2 is to try to advance

social justice .Taking into account that the representation for the Applicant is

from a Unionist who may not have an appreciation of the finesse in regard to

pleadings the court was prepared to indulge same and proceed to decide the

matter on the merits the anomaly notwithstanding .



      The same sentiment relate to the snowballing character which the

grounds of review took where some of them were not in the notice of review.

What however is pertinent to observe is the fact that, indeed the facts of the

case demonstrate irregularities which in the court’s view can not be ignored by

the court. This is so if one takes into account the fact that the very charges

which formed the basis of the Applicant’s dismissal are also the same issues

which the parties at conciliation agreed were non-issues. To that extent the

Applicant was prejudice by being dismissed on the facts which his employer

later conceded did not constitute a job action.
                                             JUDGMENT NO. LC/H/239/2013

      On the niceties of the registration of the Code the parties seem to agree

that the Code was registered in 2002 and then amended in 2012. The question

which then falls for decision is what should then have guided the Respondent

during the period when the Code had not been re- registered?



      The court is satisfied by case quoted by Respondent’s counsel that unless

there is evidence that the suspension or dismissal was not backed by evidence
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the issue of registration alone would not suffice to make the proceedings in a

particular case irregular .



         In the instant case as has already been observed, the basis of the

dismissal was on the wrong premise that there had been a job action. Since it

was agreed later that there was no job action it therefore meant that a

dismissal on the basis of a non- event and an unregistered Code is

unsustainable.



         On the issues of representation, it appears from the record of

proceedings that Applicant did not challenge the Respondent on that aspect at

the hearing. In fact he confirmed the fact by his statement that the

representatives had said they could not come to represent him

Whether or not the Respondent had to compel them to come is a different

issue.



         What is however pertinent to observe is the fact that the Applicant rights

were not observed when he was rushed through a hearing without adequate

notice and almost summarily dismissed. Worse still is the fact that the dismissal

in question was controverted by the conciliation report. It is the court’s view

that these are not irregularities which can just be swept away.



         In the case of Air Zimbabwe vs Chiku Mnensa and Mavis Mwarwenye

SC 89/04 it was stated that an employee should not escape consequences of his

misconduct by pleading a procedural irregularity , such must be put right by

remittal
                                               JUDGMENT NO. LC/H/239/2013


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for rehearing in a procedurally correct manner or leading of evidence before

the court seized with the matter . Were it not for the conciliation report the

court would have been persuaded to remit the matter so that the matter could

be reheard but in view of the conciliation letter it is clear that the crux of the

matter lay in the job action which was agreed not to have been.



         In that light a remittal would not serve any meaningful purpose .The

justice of the case in the court’s view dictates that the dismissal decision be set

aside and substituted by and order reinstating the appellant to his former

position without loss of pay and benefits from the date of his suspension or

alternative order of damages.



IT IS THEREFORE ORDERED THAT



1. The application for review being with merit be and is hereby upheld with

costs.

2. The proceedings leading to the Applicant’s dismissal are set aside.

3. Respondent is to reinstate the Applicant to his original position without loss

of salary and benefits form his date of dismissal.

4. If reinstatement is no longer tenable the Respondent is to pay Applicant

damages in place of reinstatement. The parties have to agree on the quantum

failing which either party can approach this court for quantification of the same.



L. Kudya

President -Labour Court




T.G.W.U. Appellant’s Representatives
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Matsikidze and Mucheche Legal Practitioner – Respondent’s Legal Practitioners




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