UCHENA JA: The appellant appealed to this court against
the whole judgment of the Labour Court. The
appellant was the respondents' employer.
It dismissed them from employment for wilfully losing two beds and
mattresses, part of a consignment it had assigned them to deliver to Rusape and
Mutare. The circumstances under which
the respondents lost the appellant's property are fully explained in their
evidence which, in spite of the evidence given by its own witnesses and the
views expressed by members of the disciplinary committee, the appellant found
hard to believe.
It
is not disputed that on 12 August 2010 the appellant assigned the respondents
the duty to deliver beds and mattresses to Rusape and Mutare. They left Harare at about 6.00pm. At about 21.00 hours the respondents phoned
one Makuyo, the appellant's clerk, advising him that part of the appellant's
property had been stolen by thieves as they slowly negotiated a steep rise at a
place called Mafusire along the Harare-Mutare Highway. Makuyo instructed them to proceed with their
journey to Mutare.
The
respondents reported the theft to Headlands Police. Police officers from Headlands Police station
accompanied them to the Mafusire area to try and recover the stolen property. They were not able to recover anything. The police advised them to put up at the
police station so that they could again search for the stolen property in the
Mafusire area the next morning. The
respondents put up at the police station and a search was conducted the
following morning. The search did not
yield any positive results. The
respondents proceeded on their journey to Rusape and Mutare where they
delivered the remaining beds and mattresses.
On
their return to Harare the respondents were charged with misconduct for
negligence in terms of s 2.2 (c) and wilful loss of employer's property in
terms of s 2-3 (c) of The National Employment Council for the Furniture
Manufacturing Industry's Employment Code of Conduct duly registered on 19
November 1992.
The
respondents gave evidence before the disciplinary committee. A motorist stopped them after the Mafusire
steep rise and told them that the doors of their truck were open and that he
had seen people carrying beds similar to those in their truck into a mountain
at the Mafusire area. Due to confusion,
they did not take the details of the motorist, but immediately phoned Makuyo,
the appellant's clerk and reported the theft to Headlands Police Station. The Police escorted them back to the Mafusire
area that night and the following morning.
D
Matsika, E Moses, M Chatsiwa and F Makuyo testified for the appellant. Matsika told the disciplinary committee that
he received a phone call from Makuyo who reported to him that he had received a
report of theft of the appellant's property at the Mafusire steep rise. He further told the disciplinary committee
that an assistant accompanying their other lorry which was travelling behind
the respondents confirmed the theft. When
asked why the respondents had not taken the details of the motorist who alerted
them of the theft, Matsika said, “it is strange from an academic point of view
but considering the type of people involved it is possible.”
Moses
who apparently loaded the beds and mattresses told the disciplinary committee
that, “the beds can only slip out if the ropes are untied and if the vehicle is
at an uphill position.” He further told
the committee that, “if the beds are loaded on top they can slip out with ease.”
He told the committee that in view of the
way the beds were packed it was not possible for one person to off load them without
assistance.
Chatsiwa,
a security officer, went to the scene of the alleged theft to make observations.
He opined that it would have taken time
for one to open the truck's doors, untie the ropes and off load the two beds
and mattresses. He questioned
respondents' failure to take the details of the motorist who alerted them of
the theft. When it was put to him that
the respondents knew that the truck doors were open but just wanted to use that
possibility as a defence he said; “it was difficult as there was no one to
cross examine”.
Makuyo
confirmed that he received a theft report from the respondents on the night of
the incident. He also confirmed
receiving confirmation from one Jonah who was travelling in another truck
belonging to the appellant on the same route that he had seen some people
carrying beds into the mountain at the Mafusire steep rise. He further told the disciplinary committee
that there is a small space at the back of the truck from which thieves could
have cut locks with a bolt cutter to steal from the moving truck.
Mr Chiwaridzo, who
chaired the disciplinary committee, and the majority of members of his
committee initially recommended that the respondents be found guilty of
negligence and be given written warnings. He, on p 62 of the record, said:
“The
facts of this matter are common cause and shall not be repeated herein. I shall
confine myself to the findings of other members of the panel whose findings on
the negligence of the defendants I concur with in toto. The defendants were
negligent and as a result lost the company's property thus prejudicing the company
to the tune of $1 810.”
He
thus agreed with the initial findings of the members of the disciplinary
committee. For reasons which have not
been placed on record, he subsequently changed the last part of the committee's
recommendations and recommended that the respondents be dismissed from
employment. This seems to be the reason why Susan Cakana, the appellant's Head,
Group Human Resources Manager, by letters dated 15 September 2010, dismissed
the respondents from employment.
Other
members of the disciplinary committee held different views but converged on a
finding of guilty of mere negligence for which they recommended written
warnings.
Mrs L Chimbade
recommended written warnings after commenting on the incident as follows:
“It
is just sad that when the two were stopped by a certain motorist who advised
them that the truck's doors were open and that he had seen some beds at
Mafusire they did not take his details for reference purposes. History says
Mafusire area is known for robberies and as such the two were supposed to be on
guard, but in this case they were not very careful.”
She
obviously believed the respondents and merely concluded that they were not very
careful in view of the history of the Mafusire area.
Mr
M Rukawo recommended a reprimand which in my view is another way of
recommending a written warning. He, in
respect of Fungai Katswairo, the first respondent, said he “failed to exercise
due care and custody of the consignment”. In respect of the second respondent
he said, “As the driver's assistant he was supposed to be extra vigilant at
places such as Mafusire where known acts of banditry occur”. He believed the respondents' story and merely
thought they should have been extra vigilant because of the notoriety of the
Mafusire area.
Mr
L Magwagwa, another disciplinary committee member, after giving a reasoned
analysis of the Mafusire steep rise being three kilometres long and its history
of robberies including previous theft of the appellant's property at the same
place, recommended that the respondents be found not guilty. He was however of the view that if they are
found guilty a lenient sentence should be imposed. It seems to me he had in mind a minimum
sentence which, in the circumstances of this case, is a written warning.
The
majority of the members of the Hearing Committee convicted the respondents of
negligence in terms of s 2.2 (c) of the Code for which they recommended written
warnings. The Chairman's subsequent recommendation that they be dismissed from
employment resulted in Susan Cakana writing letters to the respondents
dismissing them from employment.
The
respondents appealed against their convictions and dismissal to the National
Employment Council for The Furniture Manufacturing Industry of Zimbabwe, (the
NEC Appeals Committee). The NEC Appeals
Committee, after finding that the disciplinary committee had recommended that
respondents be found guilty of negligence and be given written warnings, but
had subsequently been inexplicably dismissed, upheld their appeal and ordered
their reinstatement. It further ordered
that if reinstatement was no longer possible, the respondents be paid agreed
damages in lieu of reinstatement and that upon failure to agree on damages,
either party may approach it for quantification.
The
appellant appealed to the Labour Court which did not believe the appellant's
assertion that the document which recommended that written warnings be given
was a draft. It found, that there was no explanation for the existence of two
sets of recommendations from the disciplinary committee. It found no fault in
the decision of the NEC which it upheld.
The appellant appealed to
this court against the whole judgment of the Labour Court. Its appeal is premised on the following
grounds of appeal:-
“1. The learned President
erred and/or misdirected herself in law in failing to have regard to the facts of
the matter and arrived at findings on the facts so outrageous which findings no
reasonable tribunal applying its mind to the facts of the matter and the law
could possibly have arrived at.
2.
The Learned President erred and /or
misdirected herself in law in arriving at findings on the facts which findings
constitute misdirections at law, in that she failed to consider and pay
requisite regard to the following undisputed facts;
a) That
the beds had been loaded onto the Appellant's truck in a manner which would not
have permitted their removal unless the ropes which secured them had been
deliberately untied;
b) That
the doors of the truck had been locked and secured and could not be unlocked
from outside while the truck was in motion.
c) That
Appellant had never accepted Respondents' explanation that the truck had been
attacked by thieves and Appellant's beds removed from the truck while the truck
was in motion and without the knowledge of the Respondents;
d) The
evidence as to the respective responsibilities of Respondents during the
journey;
3.
Having found that the record before her
showed that there were two sets of minutes of the disciplinary hearing, the
President erred in accepting the set of minutes which favoured the Respondents
when it is undisputed that both sets of minutes are unsigned. The rejection of
the minutes recommending dismissal of Respondents is seriously flawed having
regard to the facts of the matter and the highly improbable explanation for the
loss of Appellant's property advanced by Respondents.
4.
The learned President erred in her
interpretation of section 6 (1) (d) of the Labour Act Chapter 28:10 and in
finding that that section had any application to the facts of the matter before
her and in thereby finding that Respondents' lives were placed at risk by
Appellant in contravention of that section. This finding having regard to the
facts of the matter represents a
serious and gross misdirection on the part of the learned President.
5.
The learned President's finding that the
Appellant acted unfairly in charging Respondents with misconduct having regard
to the facts of the matter is seriously flawed, and amounts to a serious misdirection.
6.
The learned President erred in dismissing
Appellant's appeal which dismissal represents a serious misdirection on the
facts and the law.”
The
issues which fall for determination are;
(a)
Whether the decision of the court a quo is so outrageous in its defiance
of logic that no reasonable tribunal, applying its mind to the facts of the
matter and the law, could have arrived at such a decision.
(b) Whether the court a quo correctly interpreted section
6 (1) (d) of the Labour Act.
(c) Whether the disciplinary committee's recommendation that the
respondents be dismissed from employment was lawfully made.
THE
COURT A QUO'S DECISION ON QUESTIONS
OF FACT
The
evidence led before the hearing committee which the NEC Appeals Committee and
Labour Court relied on does not disclose how it could be said that the court a quo misdirected itself in the manner
alleged in grounds of appeal Nos. 1, 2, 5 and 6.
The
respondents' evidence was, as has already been indicated, substantially corroborated
by evidence led from the appellant's witnesses and was accepted by the
disciplinary committee.
The
appellant's own evidence confirms that its grounds of appeal attacking the
court a quo's findings on questions
of fact are an abuse of the court's process. In terms of s 92F (1) of the Labour Act an
appellant can only appeal to the Supreme Court on a point of law. The appellant abused the possibility of
questions of fact being brought on appeal under the guise that the Labour Court's
decision is so outrageous in its defiance of logic that a reasonable tribunal
could not have made such a decision. Such
grounds of appeal should only be raised when they are supported by evidence. Raising them for purposes of sneaking an
appeal on questions of fact to this court is an abuse which this court will
frown upon. Grounds of appeal 1, 2, 5,
and 6 challenge the court a quo's
assessment of the evidence led on how the appellant's property was lost. They should be struck out as they are not
properly before the court. They raise questions
of fact which this court cannot entertain. See the case of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 at 220 D-F.
INTERPRETATION
OF SECTION 6 (1) (D) OF THE LABOUR ACT
In
its ground of appeal No 4 the appellant raised the issue of the interpretation
of s 6 (1) (d) of the Labour Act. The court
a quo held that the appellant took
advantage of its own failure to provide security for the respondents thereby
exposing them to the risk of being pounced upon by robbers at the Mafusire
steep rise. It reasoned that the charges
arose from the appellant's failure to provide the respondents with security
because the Mafusire area is notorious for robberies.
Section
6 (1) (d) provides as follows:
“(1) No employer shall—
(d)
require any employee to work under any
conditions or situations which are below those prescribed by law or by the
conventional practice of the occupation for the protection of such employee's
health or safety; or …….” (emphasis added)
Mrs Zindi,
for the appellant, submitted that the court a
quo erred because s 6 (1) (d) refers to conditions prescribed by the law. She
further submitted that the court a quo did not refer to any law which provides
for the respondents' safe working conditions. I agree that the court a quo incorrectly applied the provisions of s 6 (1) (d) to the
circumstances of this case as it did not refer to any law which prescribes the
safe working conditions which should have been provided. Section 6 (1) (d) does not only rely on safety
prescribed by law but also on the occupation's conventional practice. Such conventional practise must however be
proved before an employer can be said to have failed to provide safe working
conditions in terms of the conventional practise. Section 6 (1) (d) does not therefore apply to
circumstances not prescribed by law or by proven conventional practice. This however is not the determinant issue in
this appeal.
WHETHER,
THE DISCIPLINARY COMMITTEE'S RECOMMENDATION THAT THE RESPONDENTS BE DISMISSED
FROM EMPLOYMENT WAS LAWFULLY MADE
The court a quo's and NEC Appeals Committee's
decisions relied on the recommendation for a written warning which the
appellant sent to the respondents to enable them to prepare for the hearing of
their appeal to the NEC Appeals Committee. The respondents produced those minutes before
the NEC. The recommendation for
dismissals which the appellant now relies on was not placed before the NEC
Appeals committee. It was only raised before the Labour Court and is not
consistent with the recommendations of the members of the disciplinary
committee. The NEC Appeals Committee in its decision commented on the disciplinary
committee's recommendation as follows:
“The committee further asked why Mrs Susan Chakana,
the Group Human Resources Manager had to terminate the duo when M. T.
Chiwaridzo, the designated officer who was chairing the hearing had recommended
for written warnings (sic) on last paragraph of the minutes of the hearing. The
Respondents could not comment on the matter.”
The
appellant was the respondent before the NEC Appeals Committee. It is therefore the party which could not respond
when the NEC Appeals Committee raised this issue. If the second set of minutes which recommended
dismissal was available, the question arises as to why it was not presented and
explained during the hearing of respondents' appeal to the NEC. The impression is thus created that the
appellant in its determination to dismiss the respondents subsequently created
the second set of minutes. If the
appellant had the second set of minutes in its possession when it appeared
before the NEC, a second question arises as to why it did not comment on the
matter by simply producing the second set of minutes and proffering the
explanation it later sought to give to the Court a quo. The question posed by
the NEC Appeals Committee is simple. It wanted to know why Cakana terminated
the respondents' contracts of employment when Chiwaridzo the designated officer
had recommended written warnings. It is
inconceivable that, the appellant, armed with another set of minutes in which
dismissals were recommended, would have failed to comment. It is also inconceivable that with the
dismissal recommendation on file, the appellant would send to the respondents
the minutes of proceedings which recommended written warnings and be stuck when
asked to explain.
In its heads of argument
the appellant argued that the court a quo
failed to properly consider its grounds of appeal to the Labour Court. The issue of the two sets of minutes appears
as ground of appeal No 3 which reads as follows:
“Under its analysis before its determination the
Appeals Committee avers that the Designated Officer, who was Chairman during
the hearing, had recommended for Written Warnings assuming that the element of
negligence was established. This averment is inaccurate. In fact, in his ruling
the Designated Officer holds that “in the circumstances, I find the defendants
guilty as charged” and in the last paragraph that “I recommend that the
Defendants Fungai Katsvairo and Winston Mhonda, be DISMISSED effective the 13th
day of September 2010”. Had the Designated officer not made this ruling
Respondents would surely not have been dismissed and there would have not been
any reason for them to appeal to the NEC against the Designated Officer's
ruling.”
The
appellant is referring to its grounds of appeal to the Labour Court as an
explanation for the existence of the two sets of recommendations made by the
disciplinary committee. Grounds of
appeal are not evidence and cannot explain anything. They merely present to the court of appeal what
the appellant alleges are misdirections of the court a quo. An explanation for
the existence of two versions of the minutes of the disciplinary committee
could only have been presented by way of acceptable evidence. No explanation of the existence of the two
sets of minutes of the same disciplinary proceedings was placed before the
court a quo. The appellant failed to explain when the issue
was raised by the NEC Appeals Committee. This issue therefore remains unexplained as
the Labour Court correctly noted.
It was argued on behalf
of the respondents before the NEC Appeals Committee that, in terms of s 4 (5)
of the Code; the Chairman of the disciplinary
committee was not entitled to vote. Section
4 (5) of the Code, provides as follows:
“The
decision of the committee shall be by majority
vote:
Provided
that the Chairman shall not be entitled
to vote except in the event of an equality of votes when he shall, in absolute
good faith, have a casting vote.” (emphasis
added)
The
second disciplinary committee's recommendation which was used to dismiss the
respondents from employment was not made in terms of s 4 (5). The Chairman voted when he was not entitled to
as there was no equality of votes. He
unprocedurally and unilaterally sought to overturn the disciplinary committee's
earlier decision when there was no equality of votes. The circumstances warranting his casting vote
did not arise in this case. The majority
decision was that the respondents were guilty of ordinary negligence for which
a written warning was recommended. That
is the legally binding decision in terms of s 4 (5). The Chairman's subsequent recommendation that
the respondents be dismissed from employment when there was no equality of
votes is a legal nullity.
The
court a quo therefore correctly
upheld the NEC Appeals Committee's decision.
In the result the appeal is dismissed with costs:
GARWE JA:
I agree
MAVANGIRA JA: I agree
Messers Mtetwa & Nyambirai, appellant's legal
practitioners
Messers Mudimu Law Chambers, respondent's legal
practitioners
