GWAUNZA JA: This is an appeal
against the judgment of the Labour Court declaring null and void a disciplinary
hearing conducted by the appellant and in terms of which the respondents were
dismissed from their employment. Having found that the hearing was
conducted in a manner that violated the appellant's code of conduct in that
there were no workers' committee representatives present, the Labour Court
remitted the matter to the appellant for a fresh hearing to be conducted.
The facts of the matter are as
follows. The respondents were employed by the appellant in various
capacities, with the first respondent being a supervisor. On the night of
17 March 2009, 45 cases of buttercup margarine were stolen from the holding
area within the appellant's premises. Its security personnel caught sight
of a truck which was suspiciously parked near the holding area. The truck
sped away when the security personnel attempted to block it and in the process
three cases of margarine fell off it. The security personnel also
observed four people running into the holding area, and one of them was wearing
khakhi overalls.
A follow up was made and the only
people found in the holding area were the respondents and one Sergeant Musiiwa.
The latter was not an employee of appellant, but of a security company
engaged by it. The appellant alleged that the third respondent was
wearing khakhi overalls. Investigations conducted by the security
personnel revealed that the respondents and Sergeant Musiiwa were the only
people who were observed running into the holding area.
The respondents were charged in
terms of ss 2.4.4 and 3.2.3 (F) of the appellant's code of conduct, with-
- theft of 45 cases of margarine, and
- gross dereliction of duty.
A hearing was conducted by the Head
of Department, who found the respondents guilty as charged and dismissed
them. Aggrieved by the decision, the respondents sought to appeal to the
appellant's disciplinary committee as stipulated in s 5.2.2 of the code of
conduct. However, due to the fact that there was at that time no workers
committee in place, it was not possible to constitute a disciplinary committee
that met the requirements of the code of conduct. The matter was
referred to the labour officer in terms of s 101(5) and (6) of the Labour Act [Chapter
28:01]. The labour officer in turn referred the dispute to an
arbitrator for the determination of the appeal.
In their submissions before the
arbitrator, the respondents indicated that they were aggrieved at the
appellant's violation of the code of conduct and what they perceived to be an
unfair dismissal as there was no evidence to the effect that they had indeed
committed the offence in question.
The arbitrator dismissed the appeal
on both grounds and upheld the dismissal of the respondents. They
appealed to the Labour Court on the following grounds:-
- The arbitrator erred on a point of law by determining
that the employer had a right to violate a registered code of conduct, and
- The arbitrator erred on a point of law by basing her
analysis on hearsay evidence which could not be substantiated.
The Labour Court having upheld the
appeal as already indicated, the appellant has now filed this appeal on grounds
that essentially raise the following issues, namely:-
- whether the appellant violated its own code
of conduct by holding a hearing with a
panel that, in the view of the
respondents, did not meet the composition
requirements of the code of
conduct
- whether the court a quo erred at law in failing
to determine all the issues which were
before it on appeal.
The first issue calls into question
the correct interpretation of the provisions of the appellants' code of
conduct, in terms of which the disciplinary hearing was conducted.
In this respect, it is pertinent to note and emphasise that only one
disciplinary hearing was conducted by the appellant. This was the hearing
before the Head of Department, as provided at Step 2 of the organogram on page
20 of the appellant's code of conduct, titled “Disciplinary Structure and
Levels of Authority”. There seems to be some merit in the assertion by
the appellant that the court a quo fell into the error of confusing this
hearing and the one that could have been held following the respondent's
endeavour to appeal to the disciplinary committee as stipulated in s 5.2.2 of
the code. As indicated above, this latter hearing was aborted, since it
could not be properly constituted.
The respondents argue that at the
hearing before the Head of Department the participation of a workers' committee
representative was mandatory. This is the argument that found favour with
the court a quo, hence its ruling, now impugned by the appellant.
In disputing this contention, the appellant argues, quite correctly in my
view, that while step 2 of the structure indicates that the composition of the
hearing authority at that stage is the Head of Department and workers'
committee representatives, this is not to be read independently from
subsections 5.1.2 and 5.1.3 of the code. Subsection 5.1.2 relates
to the initial investigation and collection of written statements related to a
charge by the Head of Department. Subsection 5.1.3 relates to the subsequent
hearing before the Head of Department and reads in the relevant part as follows;
“The composition of the hearing
committee shall be as per diagram on page 20. The employee facing disciplinary
charges may be accompanied by the worker's committee representative” (my
emphasis)
In the organogram at page 20 of the
code the composition of this hearing committee is indicated as
follows;
“Head of Department.
Workers committee
Representatives”
It appears to me that while the
organogram gives a graphic presentation of the levels and composition of
disciplinary hearings, para 5 elaborates, in a narrative form, on the same
issue. Thus it is explained in both subsections 2 and 3 of paragraph 5
that the employee may be accompanied or represented by a workers'
committee representative at the hearing before the Head of Department.
This is not a mandatory provision. While it is not in dispute that
the absence of a workers' committee at the relevant time frustrated the desire
of the respondents to be represented at such hearing by workers' committee
members of their choice, the appellant, in my view, was within its rights to
reject the request by the workers to bring representatives from the disbanded
workers' committee. The latter no longer had the mandate to represent the
respondents. The respondents would have had a genuine grievance had the
employer denied them the right to be accompanied by members of a substantive
workers' committee. This, however, was not the case.
The appellant, which did not have to
accede to what must have been another request by the respondents, nevertheless
did so and allowed them to be accompanied to the hearing by their fellow
workers. Given that neither the presence nor the absence of the
respondent's co-workers could have undermined the propriety of the proceedings,
in terms of the composition of the hearing authority, I find that the court a
quo misconstrued the provisions in question and, consequently, misdirected
itself in finding, as it did, that the hearing before the Head of Department
was improperly constituted. Nor do I find, as contended by the
respondents, that the proceedings could also be impugned on the basis of the
presence of other managers of the respondent. The Head of Department
in casu, one Mr D Kadzirange, sat as the hearing authority in terms
of the code. The other two managers who were present were not part of the
hearing committee, since one was a minute taker and the other represented the
complainant.
Although the respondents might have
suffered a setback in their quest for justice, occasioned by the appellant's
inability to properly constitute a disciplinary committee to hear their appeal,
they were able to initiate a process that later saw them arguing their case
before an arbitrator. The latter dealt with the matter as if it was an
appeal to her in the first instance. In the light of all this I do not
find merit in the contention, upheld by the court a quo, that the
respondents were denied the right to be heard.
I am satisfied, in the result, that
the procedures were correctly followed and that no basis has been laid for the
assertion that the appellant's code of conduct was violated. The
arbitrator was correct in her finding in this respect, and the court a quo
should have upheld it.
It is evident from its judgment that
the court a quo determined and dismissed the matter on the basis of one
technical point, that is, whether or not the hearing committee of the appellant
in this case, was properly constituted. As indicated above, the court's finding
on this point was based on a misconstruction of the relevant provisions of the
appellant's code of conduct. There was thus no need to remit the matter
to the arbitrator for a fresh hearing. Be that as it may, and since it is
generally accepted that labour matters should not be determined on the basis of
technicalities, the court a quo could still have properly considered the
other issues placed before it by the appellants (respondents in casu)[1].
In particular, the court should have addressed the ground of appeal that
impugned the arbitrator's reliance on 'hearsay' evidence. This brings in
the second issue arising from the appellant's grounds of appeal.
It is evident from the arbitrator's
award that she relied on circumstantial, rather than hearsay evidence, in
reaching the decision that she did. On page 3 of the award, the arbitrator
stated as follows;
“as much as evidence given to me by
the employer was circumstantial.(sic) It is glaringly clear that the 3
had something to do with the theft”
I have no doubt, given this
circumstance, that the respondents mistakenly labelled as 'hearsay' the
evidence that was placed before the arbitrator..
I have already expressed the view
that the arbitrator correctly interpreted the relevant provisions of the
appellant's code. As is apparent from the papers before the court, the
arbitrator adequately considered the merits of the case and reached a decision
that I am persuaded is unassailable, despite being premised on circumstantial
evidence. That being the case and in the interests of bringing finality
to this litigation, I am of the opinion that no real purpose would be served by
remitting the matter to the Labour Court for it to consider the same merits.
This Court has before it all the evidence relevant for a final
determination of the matter.
I am persuaded that the evidence
before the arbitrator, albeit circumstantial, was difficult to
challenge. The theft of the 45 cases of margarine, the truck (from which
a few cases of margarine fell off) that sped off after detection by security
agents and the sight of people running away from the truck and disappearing
into the appellant's holding area, were all facts that were not challenged by
the respondents. They and Sergeant Musiiwa were the only people who were
subsequently found inside the holding area. They failed to tender any
evidence to disprove the allegation that they were the people seen running to
the holding area by the appellant's security personnel. Nor could they
answer the question as to whether there was another entrance to the area, apart
from the one they were seen disappearing into. Thus the inference to be
drawn, and which in my view the arbitrator correctly drew from this evidence,
was that the respondents stage-managed and were active perpetrators in the
whole operation. This being a civil case, it is important to note that
the inference sought to be drawn from circumstantial evidence, while it must be
consistent with all proved facts, need not be the only reasonable inference.
This point is stressed in the South African case of AA Onderlinge
Assurance Bpk v De Beer[2]
where it was held that a plaintiff who relies on circumstantial evidence
does not have to prove that the inference which he asks the court to draw is
the only reasonable inference: he will discharge his burden of proof if he can
convince the court that the inference he advocates is the most readily apparent
and acceptable inference from a number of possible inferences.
Applied to the circumstances of this
case, there can, in my view, be little doubt that the appellant properly
discharged the burden of proving the respondents' culpability as charged.
When all is told, I find that the
appeal has merit and ought to succeed.
For reasons not apparent from the
record, the court a quo ordered that each party should bear its own
costs. Since the appellant has not specifically implored this Court to
substitute the Labour Court's order in this respect with a different order as
to costs, that order will be maintained.
It is in the result ordered as
follows:-
- The appeal be and is hereby allowed with costs.
- The decision of the Labour Court be and is hereby set
aside and substituted with the following:
“1. The appeal be and is hereby
dismissed.
2. Each party shall bear its
own costs.”
ZIYAMBI
JA: I agree
PATEL JA:
I agree
Coghlan Welsh & Guest, appellant's legal practitioners
G.H. Muzondo & Partners, respondents' legal practitioners
[1] See
Dalny Mine v Banda 1999 (1) ZLR 220 S
