Wellington Makuvara v Zimbabwe Platinum Mines

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/160/2016
HARARE, 10 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/160/2016

HARARE, 10 FEBRUARY 2016			          	       CASE NO. LC/H/172/15

AND 18 MARCH 2016

In the matter between:-

WELLINGTON MAKUVARA						Appellant

And

ZIMBABWE PLATINUM MINES					Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mr K. Gama (Legal Practitioner)

For Respondent		Mr A.K. Maguchu (Legal Practitioner)

MAXWELL, J:

At the hearing of this matter respondent raised a point in limine which is the subject of this judgment.

This is an appeal against the decision of the respondent’s Appeals Committee to uphold the dismissal penalty meted on appellant by the Disciplinary Committee.  Appellant was a Boilermaker with the Respondent.  He was charged with negligence or responsibility for a wrongful act or omission that causes accidents, injury or death at work.  He was accused of failing to make an assessment of the specific risks that could befall him and his assistant when they were using a crane to lift a damaged chute.  He was found guilty and dismissed from employment.

Appellant noted an appeal to the Appeals Committee.  He was not successful and thereafter approached this court.  The grounds of appeal are;

The Committees erred by finding appellant guilty as charged when respondent had alleged only a minor breach of proven company rules/policy or procedures.

The Committees erred by dismissing appellant when the allegations made against him amounted to a minor breach of company policy warranting a verbal warning.

The Committees erred by not considering the highly mitigatory factors cited by appellant in assessing sentence.

Appellant prayed for the guilty verdict to be set aside alternatively that he be given a final written warning.  He also prayed that the dismissal be set aside and that he be reinstated without loss of salary and benefits or, if reinstatement is not possible, that he be paid damages in lieu of reinstatement the quantum of which is to be agreed upon by the parties within seven days or be determined by the Court.

In response Respondent stated that appellant was not convicted of a minor offence as the Code of Conduct classifies omission that causes accidents, injury or death at work as a serious offence that warrants a penalty of dismissal.  Respondent also stated that appellant admitted to the existence of the specific pre-task risk assessment and also that he did not follow the procedure therefore he cannot allege that the procedure was not proven.  Respondent further stated that the penalty of dismissal was not unreasonable as it is prescribed in the code.  Regarding the third ground of appeal, respondent stated that it is improper as it raises procedural issues which should be dealt with on review.  Respondent prayed for the dismissal of the appeal with costs.

In heads of argument respondent pointed out that there are no valid grounds of appeal except the one challenging the penalty.  I find merit in respondent’s submissions.  As correctly stated in respondent’s heads of argument, this Court is sitting to determine whether the Appeals Committee correctly determined the three issues that were placed before it.  Any issue that was not raised before the Appeals Committee cannot be properly placed before this Court.  See UTC v Chikanda SC 7/99 James Kandoma v Shades of Black Cosmetics (Pvt) Ltd SC 115/04.

An examination of the grounds of appeal vis-à-vis the issues raised before the Appeals Committee confirms Respondent’s submission.  Whether or not the charge related to what can be termed a minor breach was not before the Appeals Committee.  Neither was the issue of whether or not the company rules/policy or procedures were proven.  The Committee cannot be faulted for not dealing with an issue that was not placed before it.  See C. Kambuzuma and Twenty-Two Others v The Athol Evans Hospital Home Complex SC 118/04.  It therefore follows that the first and second grounds of appeal are improperly before this court.

The third ground of appeal criticizes the Committee for not considering the highly mitigatory factors cited by the appellant in assessing sentence.  In the words of the respondent, it speaks to the Appeals Committee as not having carried out a particular process as to it having carried out the process but arriving at a wrong conclusion.  Allegations of procedural impropriety should be raised on review.  See Blue Ribbon Foods Limited v Dube N.O. & Anor 1993 (2) ZLR 146.  As stated by Gubbay CJ (as he then was) in Muringi v Air Zimbabwe Corporation & Anor 1997 (2) ZLR 488.

“Judicial review, as the phrase implies, is concerned not with the correctness of the decision but with the decision-making process.”

See also Dandazi v Wankie Colliery Co Ltd 2001 (2) ZLR 298.  In terms of the rules of this Court, SI 59/06, review proceedings are governed by Rule 16 whilst appeal proceedings are governed by Rule 15.  Ground number three therefore should have been brought under review proceedings and cannot be dealt with on appeal.

Resultantly all the grounds of appeal are improperly before the Court and cannot succeed.

Wherefore I order as follows:

The point in limine, being with merit, be and is hereby upheld.

The appeal be and is hereby struck off the roll with costs.

Gama & Partners, appellant’s legal practitioners.

Messrs Dube, Manikai & Hwacha, respondent’s legal practitioners