Zimbabwe Leaf Tobacco (Private) Limited v Dereck Maponga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/216/2014
HARARE, 26 NOVEMBER 2013
CASE NO LC/H/576/2013
JUDGMENT NO LC/H/216/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/216/2014

HARARE, 26 NOVEMBER 2013 &		CASE NO LC/H/576/2013

11 APRIL 2014

In the matter between:

ZIMBABWE LEAF TOBACCO (PRIVATE)			APPELLANT

LIMITED

Versus

DERECK MAPONGA						RESPONDENT

Before Manyangadze J &Kudya J

For the Appellant	T Pasirayi (Legal Practitioner)

For the Respondent  CMucheche (Legal Practitioner)

MANYANGADZE J:

This is a review and an appeal arising out of the decision of the National Employment Council Tobacco Industry Grievance and Disciplinary Committee (“GDC”) handed down on 19 July 2013. The GDC set aside the dismissal of the respondent imposed by the appellant’s Disciplinary Hearing Committee and confirmed by the Works Council. The GDC remitted the matter for another investigation and hearing.

The brief factual background to the matter is as follows:

The respondent, an employee of the appellant, was also a member of a Football Club called Zimbabwe Leaf Tobacco Lytton Wolves (“the Club”). He held the position of Vice-Chairman of the Club.

After a disciplinary hearing held on 9 and 14 May 2013, the respondent was found guilty of violating the Tobacco Industry Code of Conduct, Statutory Instrument 322 of 1996. The misconduct charge, in terms of the cited Code of Conduct, was:

“dishonesty, theft, fraud, and related matters.”

Particulars of the charge were that he sold 5 kgs of meat that was meant for the Club’s after match braai and converted the money to his own use.

The dismissal was upheld by the Works Council on 5 June 2013. The record of the Works Council meeting shows that the chairman had to exercise a casting vote after management and workers representatives were deadlocked on the matter.

The reason for the deadlock was the question whether the respondent should be subjected to disciplinary proceedings under the Club’s Constitution or the NEC Conduct of Conduct. The respondent had in fact refused to participate in the disciplinary hearing, after he raised the issue that the applicant had no jurisdiction to discipline him for the alleged misconduct, as it occurred outside the workplace, and outside working hours, during a social soccer match.

As already indicated, the Works Council meeting was rescued from its impasse by the Chairman’s casting vote.

On 19 July 2013, the GDC remitted the matter for investigation in terms of the Football Club’s constitution, and any further proceedings in terms of the NEC Code of Conduct.

The Appellant filed an appeal against the GDC determination on 1 August 2013. It simultaneously filed a notice of application for review. The grounds for review are stated as follows:

“The decision of the national Employment Council for Tobacco Industry Grievance and Disciplinary Committee was so outrageous in its defiance of logic and accepted moral standards that no reasonable person who has applied his mind to the question to be decided would have arrived at that decision and on that basis grossly erred and misdirected itself in going beyond the four corners of the respondent’s notice of appeal before it and in that regard dealing with issues which were not before it.”

The grounds of appeal, which are more elaborate, are couched in the following terms:

“1.	The decision of the National Employment Council for the Tobacco Industry Grievance and Disciplinary Committee was so outrageous in its defiance of logic and accepted moral standard that no reasonable person who had applied his mind to the question to be decided would have arrived at the decision and on that basis the Grievance and Disciplinary Committee grossly erred and misdirected itself on points of law by:

Failing to appreciate that the appellant had jurisdiction in terms of the National Employment Council Tobacco Industry Code of Conduct SI 322/96 to discipline the respondent for the offence committed.

Failing to appreciate that the offence committed by the respondent was work related and on that basis it was competent for the appellant to charge the respondent under the code.

Failing to appreciate that the sole question to be decided in terms of the respondent’s appeal was whether or not the appellant had jurisdiction to carry out the disciplinary hearing of the respondent in terms of Collective Bargaining Agreement for the Tobacco Industry Code of Conduct SI 322/96.

Making a finding that some players who were members of the club had in the past been disciplined in terms of the Club Constitution when this issue was raised for the first time on appeal in circumstances where the merits of the matter were not before the committee as the respondent failed to place his defence on record before the internal Disciplinary Hearing panel and Works Council after he refused to participate on the basis that the matter could not be determined in terms of the Code of Conduct.

Making a finding that the reason for the failure by the respondent to place his defence hearing was because the Workers Committee had refused to participate in the hearing as the appellant had failed to follow provisions of the Club’s Constitution when this issue was not before the Grievance and Disciplinary Committee.

Making a finding that the Constitution of the Lytton Wolves is discriminatory by barring members of the Workers Committee and ruling that it must be amended when this issue was not before the Committee.

Referring the matter back for investigations to be instituted in terms of the team’s Constitution and thereafter for the matter to be heard in terms of the Employment Code of Conduct if an offence is established in circumstances where there is no reason in fact or law in which the team’s Constitution could be utilized to determine the disciplinary matter as it does not contain any disciplinary mechanisms and procedures.”

It seems to me the grounds for review and appeal essentially read the same. What is stated in the grounds for review is infact what is stated in greater detail in the grounds for appeal. In the grounds for review, there is only an averment that the GDC went beyond the four corners of the respondent’s notice of appeal. In the grounds of appeal, the appellant then demonstrates the manner and extent to which the GDC went beyond the perimeters of the notice of appeal. In other words, the appellant’s grounds of appeal are elaborating its grounds of review.

In view of this observation, I consider it convenient to deal with the grounds of appeal. They inevitably address the grounds for review.

The main, if not the sole, question on which this appeal turns is whether or not the appellant had jurisdiction to discipline the respondent in terms of the NEC Tobacco Industry Code of Conduct.

The appellant contended that it had such jurisdiction, on the basis that the Club was 100% owned by it, and that the respondent was a member thereof of by virtue of his employment with the appellant.

Further to that, the appellant averred that the misdeed perpetrated by the respondent was work-related. It does not matter that it was committed outside the work place or outside working hours.

On the other hand, the respondent’s contention was that Lytton Wolves, as a Football Club, is a voluntary association with a separate legal persona. It has its own constitution, in terms of which the respondent should be disciplined. The respondent argued that the fact that Lytton Wolves is wholly owned by the appellant does not remove its status as a separate and distinct legal persona from the appellant. It is therefore capable of running its own affairs, including disciplining any of its errant members.

According to the respondent, incidents that occur during soccer matches, such as the one he was allegedly involved in, fall outside the purview of the NEC Code of Conduct. It is up to the Club’s Executive to deal with such incidents, guided by its Constitution.

The appellant mainly relied on the case of Makwiro Platinum Mines v Paradzai SC-46-04in its contention that the conduct complained of was work-related. The respondent sought to distinguish the Makwiro case from the instant one, arguing that the village where the misconduct occurred had no Constitution that gave it a separate legal persona.

In the Makwiro casesupra, the Supreme Court had occasion to determine the question whether the Mining Company had jurisdiction to discipline an employee who committed an act of misconduct in a mining village compound erected by the company for its employees, known as Makwiro Platinum Mines Village.

The employee behaved in an unruly, disorderly and threatening manner, disturbing the peace of fellow employees. The uncouth behaviour continued late into the night, stopping only when the employee was removed from the village. It was contended on behalf of the employee that the employer had no jurisdiction to discipline him for the misconduct, as it was committed outside the work place.It was also argued that the village had its own rules in terms of which the employee’s misconduct should have been dealt with.

ZIYAMBI JA, in concluding that the misconduct was work-related, remarked that:

“His undisciplined behaviour created a stressful atmosphere and made it impossible for the other employees to get any sleep, factors which could adversely affect his co-employees as regards the services which they rendered to their employer. In the second place, he threatened to ill-treat the son of a workmate, who was his subordinate at work. Ill-treatment of a subordinate by his superior is likely to have adverse effects on the victim and his work to the detriment of the employer.”

On the village rules the employee argued should be used to discipline him, the learned judge of appeal, disagreeing with the findings of the Labour Court, stated:

“The Labour Court also found that the appellant should have been disciplined in terms of the village rules. As the respondent submitted, these are in-house rules designed to ensure proper administration of the village and do not enjoy the status of a registered Code of Conduct. Accordingly, the conduct of the respondent being work related, the only test to be applied is whether the respondent’s conduct amounts to misconduct as defined in the Code of Conduct. If it does, the employer is entitled to proceed in terms of the Code of Conduct. This is the prerogative of the employer.”

It is clear the court, in the Makiwrocase, did not, separate the accused’s conduct at the village from his work. The conduct created a stressful atmosphere which had the potential to adversely affect co-workers’ productivity at work.

In casu, it is necessary to closely examine the relationship between the Club and the appellant company. The Club’s constitution is quite instructive in this regard. The section that describes aims of the Club is pertinent. It reads:

”AIM

Introducing social status from shop floor to the highest level without production disruption.

Offering entertainment to workers on weekend to overcome stress and any other work related pressures.

Exercise to have health body and mind for the betterment of production, promoting HEALTH AND SAFETY values.

Promote communication and social conduct with members of the society.

Evoke discipline at all levels and always respect

Support our MISSION STATEMENT (Providing a challenging and stimulating work environment for our employees)

Help and Improve ZLT values on CONTINUOUS IMPROVEMENT & TEAMWORK AND ACCOUNTABILITY.

Motivate others on sporting activities to promote N.O.S.A five star systems and maintain N.O.S.A required standards at all levels.”

A look at the objectives of the Club, as clearly spelt out in this section of its Constitution, shows that they are all about ZLT i.e. the appellant Company. It is about upholding and promoting its values. Paragraph (7) in particular, emphasizes “accountability”, among other core values.

From a perusal of the Constitution, it is difficult to dissociate the Club from the company. There is no clause that confers upon it a separate legal persona. The Constitution does not create a body corporate. Even the Club’s important property, like the soccer kit, “remains ZLT property until ZLT management decides to dispose”.

In the “CONCLUSION” clause, it is even made clear the club has no perpetual succession apart from the ZLT. It reads, inter alia:

“the team will continue to operate as long as ZLT is still operating”.

In my view, the company and the Club are inseparably interlinked and intertwined. I am not persuaded that the situation is distinguishable from the one in theMakiwro case,supra.

The conduct of the respondent, in the circumstances, can reasonably be said to be work-related. As to whether it amounts to misconduct as defined in the Code of Conduct that must be determined by a disciplinary hearing held in terms of such Code.

The GDC’s determination was not on the merits of the misconduct allegations. It was on the question of whether or not the appellant had jurisdiction to discipline the respondent. The GDC did not resolve the issue in definitive terms. It remitted the case for investigations in terms of the Club’s Constitution, with the possibility of further action under the Code of Conduct. It therefore left the question hanging, and cannot reasonably be said to have decided the issue in the appellant’s favour, as argued by the respondent.

The difficulty created by the GDC’s remittal is that it is not clear and specific on who has jurisdiction. This is the very question it had been called upon to determine in the appeal before it. In my view, it avoided the question, and took a somewhat middle of the road approach. This createsuncertainty as to how the decision of the GDC should be implemented. If investigations are carried out in terms of the Club’s Constitution, who drives the process? Does the Constitution have clear and adequate procedural mechanisms for such a process? Is there no possibility of a turf war between the Club’s Executive, of which the respondent is a member, with the appellant company’s management, on how the investigation should be carried out?

In short, the GDC determination leaves more questions than answers.

There was need to rule definitively on the question of who had jurisdiction, and remit specifically to that authority, for a proper disciplinary inquiry.

The other aspects of the GDC’s decision, as correctly pointed out by the appellant, were extraneous to the appeal before the GDC. These concerned the discriminatory nature of the Club’s Constitution and the order to amend it. These issues were not within the four corners of the appeal. They were the basis of the notice of review. As already pointed out, the appellant included these, in more detail, in its grounds of appeal. This, in my view, effectively rendered the review redundant. The setting aside of the GDC determination, on the basis of the grounds argued on appeal, would make it unnecessary to consider the review.

Having regard to all the circumstances of this case, the proper course of action is to set aside the GDC decision, and remit the case specifically for a disciplinary hearing to be conducted by the appellant company in terms of the NEC Code of Conduct.

In the result, it is ordered that:

The appeal be and is hereby allowed.

The determination of the GDC be and is hereby set aside.

The matter be and is hereby remitted for disciplinary proceedings to be conducted by the appellant company in terms of the NEC Tobacco Industry Code of Conduct, S I 322 of 1996.

The disciplinary proceedings should be completed within ninety (90) days from the date of receipt of this order.

Each party shall bear its own costs.

R F MANYANGADZE

JUDGE

L KUDYA	-	I agree.

JUDGE

Gill, Godlonton&Gerrans, appellant’s legal practitioners

Matsikidze&Mucheche, respondent’s legal practitioners