Court name
Supreme Court of Zimbabwe
Case number
SC 46 of 2004
Civil Application 36 of 2004

Makwiro Platinum Mines v Paradzayi (36/04) (SC 46 of 2004, Civil Application 36 of 2004) [2004] ZWSC 46 (08 September 2004);

Law report citations
Media neutral citation
[2004] ZWSC 46
















DISTRIBUTABLE
(44)


Judgment
No. SC 46/04


Civil
Application No. 36/04











MAKWIRO
PLATINUM MINES v PRITCHARD PARADZAYI











SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA


HARARE,
JUNE 29 & SEPTEMBER 9, 2004








T
Bhatasara
, for the
appellant





The
Respondent in person









ZIYAMBI JA: This
is an appeal against a decision of the Labour Court. The respondent
was found guilty by the Disciplinary Committee
of the appellant of
disorderly behaviour and indiscipline in contravention of the Code of
Conduct for the Mining Industry SI 165/92
(“the Code of Conduct”).
Since he had been issued with a final warning about three weeks
earlier for a similar offence and
warned of the consequences, he was
dismissed from the appellant’s employ. He appealed to the Labour
Court on the grounds that
the Code of Conduct did not apply and that
he ought to have been disciplined in terms of the Village Rules.









The following facts
were common cause at the hearing before the Labour Court:






The respondent and
his fellow employees were living in a compound erected by the
appellant for the accommodation of those of its employees
who are on
duty at the mines. The village is called Makwiro Platinum Mines
Village.







On 10 March 2002 at
about 8.40 pm, the respondent, who was booked in the village from 6
to 13 March 2002, stormed into the canteen
in a drunken state and,
shouting at the top of his voice, used abusive language to James
Mketwa the Village Manager and a workmate.
He then threatened to
ill-treat the son of James Mketwa, who works in his department and is
his subordinate at work. From there,
the respondent proceeded to
the television lounge where his workmates were watching the news,
continuously shouting at the top of
his voice. His work-mates tried
without success to restrain him. Two of the workmates then dragged
the respondent to his room
upon instructions from the Village Manager
and locked him there. The respondent responded by shouting louder
and threatening to
break down the door. He persisted in this unruly
conduct making it impossible for his workmates to sleep until about
11 pm when
he was removed from the village and taken to his home in
Chegutu.










Before the Labour
Court, the respondent contended that since the alleged acts of
misconduct occurred when he was away from work, he
ought to have been
disciplined in terms of the village rules. This contention found
favour with the Labour Court which found as
follows:





“I
agree with the appellant’s submission and further add that in the
event that the respondent’s village supervisor had failed
to deal
with applicant, he was at liberty to call for the assistance of the
Zimbabwe Republic Police. This to me was a clearly
an issue that
fell outside the respondent’s Code of Conduct. The fact that the
village is a property of the respondent did not
necessarily justify
the application of the respondent’s Code of Conduct on acts done by
appellant when not on duty. The appellant’s
conduct had nothing
to do with his services under the respondent. This is a case where
the conduct of the appellant was not work-related.
(See
Zimpak
Private Limited v Tawanda

Mugarabi
SC 196/94).”












It was submitted on
behalf of the appellant that the conclusion that the misconduct was
not job related was based on reasoning that
is bad in law and
constituted a failure to hear and determine according to law.







Indeed, the case to
which the learned Senior President of the Labour Court referred seems
to point to a conclusion contrary to the
one arrived at by the court.
In that case, the respondent, who was the chairman of the workers’
committee at his place of employment,
complained of favouritism
accorded to female employees by the telephonist of the appellant
regarding the use of the telephone.
The two women made insulting
remarks about him at the workplace and he threatened, at the work
place, to beat them up after working
hours so that management would
have no jurisdiction over the matter. After work, the respondent
came upon the two women, shook them
and threatened to assault one of
them although he did not actually hit her. The Tribunal having
concluded that the assault having
taken place outside the work
premises was not work-related, KORSAH JA who delivered the judgment
of the Court said:






“It
seems to me that to accept this proposition as law would be to create
a fertile ground for violence outside the work place which
may have
its origins inside the workplace and a working relationship”;






and,
after recounting the evidence,:





“In
my view, the conclusion that the ensuing assaults were not
job-related was based on reasoning that was bad in law and
constituted
a failure to hear and determine according to law.”












The finding by the
Labour Court that the respondent’s conduct had nothing to do with
his services under the respondent and was therefore
not work-related
is not supported by the facts on record. In the first place, the
appellant was on duty that weekend; that is the
purpose for which he
was booked in the village. 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 service 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.







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.







The respondent’s
position is aggravated by the fact that he had been given a final
warning in respect of similar behaviour some
three weeks earlier and
was aware of the consequences of repetition of such behaviour. In
my view the employer ought not to be
obliged to condone the
repetition of the very actions for which the respondent had been
given a final warning.








Accordingly,
the appeal is allowed with costs.






The order of the
Labour Court is set aside and substituted with the following:





‘The
appeal is dismissed with costs’.








CHIDYAUSIKU
CJ: I agree.








MALABA
JA: I agree.








Kantor
& Immerman
,
appellant's legal practitioners