CHEDA JA: On 20 June 2004 the
appellant wrote to the respondent offering him a job as a security shift
supervisor and proposed that he should start work on 1 July 2004. The
respondent accepted the offer of employment and was furnished with the detailed
conditions of service. His employment was subject to a three month probation
period.
On 7 September 2004 the
respondent was issued with a permit to drive company vehicles. On 20
October 2004 the respondent in the course of his employment was involved in an
accident while driving one of the company vehicles.
On 23 October 2004 he was
invited to a hearing and charged with misconduct based on the following
grounds:
- Negligent damage to the Mazda vehicle registration
723-513 B.
- Misuse of company property in that he travelled an
extra 132 km over and above the 300 km he was supposed to travel to and
from Masvingo.
- Giving false evidence, deliberately giving untrue,
erroneous and misleading information and testimony in relation to the
accident.
Following this first hearing the
respondent was found guilty of misconduct and a letter of dismissal from
employment was served on him the same day.
The respondent appealed to the
security manager and complained about a number of irregularities. The
security manager set aside the proceedings and ordered that the disciplinary
hearing be conducted de novo before Mrs Ellan Muchemwa, who was
appointed to hear the case.
Following the second hearing the
respondent was again found guilty of misconduct and it was decided that he be
dismissed from employment with effect from 15 November 2004.
It was after this hearing that the
respondent made a procedural error.
Although the dismissal letter
advised him that he could appeal to Mr Phil Plaisted if he so wished, he did
not do so. There was no good reason for not appealing to Mr Plaisted who
was the designated authority under the Code of Conduct to appeal to had
previously shown some appreciation of respondent's concerns. Instead he
appealed direct to the Labour Court. This was not permissible because the
company's code of conduct in S.I No. 165 of 1992 provides as follows:
"PART
A
- - 5 . .
- All disciplinary actions should at first seek
resolution within the laid down Company Code or National Code of Conduct
before going external for decision . .
PART D
Code
of conduct procedure
- Appeals procedure
- .
- When an employee wishes to appeal against disciplinary
action which has been taken against him he shall appeal to the designated
authority within a period of five working days following the imposition of
the penalty and must state the grounds for the appeal, in writing.
Out of time appeals may only be considered when there is reasonable excuse
for the delay;
- .
- The designated authority shall make a determination in
respect of the appeal within five working days and the form enclosed
accordingly. The decision of the designated authority shall be
final."
Even in relation to the grievance
procedure the Code shows the need to exhaust domestic remedies first. It
reads as follows:
Guidelines for a grievence procedure
- Appeals
- - (d) .
- Should the aggrieved employee
still be dissatisfied with the head of department's decision, he may
appeal to the manager in writing, within seventy-two hours stating the
grounds of the appeal.
- The manager will review the case and make a decision
within seventy-two hours and endorse the case records accordingly.
The manager's decision shall be final."
These provisions are mandatory
because they are worded as follows:
"All
disciplinary actions should at first .
The appeal shall be heard by .
The designated authority shall .
The employee . shall appeal to the
designated authority . ."
The respondent in this case did not
follow these procedural steps laid down in the Code of Conduct.
In conclusion I find that the
Labour Court did not have the jurisdiction to hear the matter. It should
have simply referred the matter back so that the proper procedure be
followed. The respondents also challenged the charge against him saying
it had been changed from the one preferred against him earlier. In the
previous hearing the respondent had been charged with:
- Negligent damage to the Mazda vehicle registration No
723-513B
Misuse of company property in that
you traveled an extra 132 km over and above the 132km you were supposed to
travel to and from Masvingo.
Giving false evidence, deliberately
given untrue erroneous and misleading information and testimony in relation to
the accident.
Following the complaint he made to
Mr Plaisted the proceedings on these charges were set aside.
In the second hearing before Mrs
Muchemwa he was charged with:
- Wilful disobedience to a lawful order;
Misuse and damage to company
property.
The finding that the respondent was
guilty of misconduct cannot be faulted.
He drove at night against
instructions. He misused the employer's property. The mileage he
traveled exceeded that of the authorized journey by 132 km.
His argument that there was no log
book does not assist him as the mileage was recorded at the time the vehicle
was fueled. He has not challenged the recorded mileage or shown that it
was incorrectly recorded.
There is a summary in the labour
court record which is not very clear and is not dated. It also refers to
proceedings and pages which are not in the record.
Assuming the labour court decided to
re-hear the matter, as it was entitled to in terms of s 90(2) of the Act, the
conclusion it arrived at is not supported by the evidence. There was
sufficient evidence on the record to show that the respondent had driven the
appellant's vehicle at night and had misused the vehicle by traveling a
distance that exceeded the authorized one by 132 kilometes.
The finding that he was guilty of
misconduct should have been allowed to stand.
In view of the above, the appeal is
allowed with costs.
The decision of the labour court is
set aside and is substituted by the following order -
"The appeal is dismissed with
costs."
MALABA DCJ: I agree
GARWE JA: I agree
Gill, Godlonton & Gerrans, appellant's legal practitioners