Court name
Supreme Court of Zimbabwe
Case number
SC 96 of 2004
Civil Appeal 226 of 2003

Hubert Davies & Company (Pvt) Ltd. v Mutsindiri (26/03) (SC 96 of 2004, Civil Appeal 226 of 2003) [2004] ZWSC 96 (25 October 2004);

Law report citations
Media neutral citation
[2004] ZWSC 96




DISTRIBUTABLE (74)




















Judgment No
SC 96/04


Civil Appeal No 226/03

















HUBERT
DAVIES (PRIVATE) LIMITED v LUCIAN PANGANAI
MUTSINDIRI











SUPREME COURT OF
ZIMBABWE


SANDURA JA, MALABA
JA & GWAUNZA JA


HARARE OCTOBER 11 &
26, 2004








T. Biti, for the
appellant





D. Moyo, for the
respondent












SANDURA JA: This is an appeal against a judgment of the Labour
Relations Tribunal (“the Tribunal”) (now the Labour Court)
which
ordered the appellant company (“the company”) to reinstate the
respondent (“Lucian”) as its employee without loss of
salary and
benefits, or pay him damages in lieu of reinstatement.





The factual
background in this matter may be tabulated conveniently as follows:







  1. At the relevant time Lucian was employed by the company as a
    fitter and turner, and was governed by the Employment Code of

    Conduct and Grievance Procedures for the Commercial Sector (“the
    Code”).








2. On 14 August 1996 Mr F. Evans (“Evans”), the Workshop Foreman,
issued the first written warning for unsatisfactory work performance
to Lucian in the following terms:







“This letter serves as a first written warning under Group II
Offences of the Employment Code of Conduct for the following reason:





On Thursday 8th
August 1996 you machined a drum centre housing and when checked was
found to be over-size, which meant that the housing had to be
scrapped.





Please be advised that
you will machine a replacement housing in your own time and you will
replace the housing at a cost of $320.00”









There was no reply or protest from Lucian.







3. On 17 September 1996 Evans issued a second written warning to
Lucian for unsatisfactory work performance as follows:







“This letter serves as a second written warning under Group II
Offences of the Employment Code of Conduct for the following reason:







On Thursday, 5th September 1996, you machined a gear and
on the 9th September 1996, it was delivered to the
customer. A few days later an irate customer returned the gear to
us complaining that it
was not machined to his sample supplied.
Upon checking the gear I found (that) four critical dimensions were
incorrect. There
is absolutely no excuse when a journeyman is given
a sample by a customer to machine the exact component, that he
machines the component
differently to the sample supplied.”







Again, there was no reply or protest from Lucian.










4. On 8 November 1996, a third written warning for unsatisfactory
work performance was issued to Lucian by Evans as follows:







“This letter serves as a third written warning under Group II
Offences of the Employment Code of Conduct for the following reason:







On Wednesday, 6 November, you machined four pinion shafts and when
fitted two were found to be over-size.







Please be advised that since this is your third written warning under
Group II Offences of the Employment Code of Conduct, you are
dismissed with immediate effect.”










There is nothing in the record which indicates that Lucian
immediately reacted to the third written warning and disputed the
allegations
which had prompted the issuing of that warning.







5. On 8 November 1996, after Evans had issued the third written
warning, Mr R. Wellington (“Wellington”), the man appointed by
the Company as the Designated Officer in terms of the Code, wrote to
Lucian as follows:



“I refer to the letters of warning issued to you on 14 August 1996
and 17 September 1996, and your letter of dismissal (dated)
8
November 1996.





You are hereby
suspended without pay with effect from 8 November 1996.







You are also asked to appear before the designated officer on Monday
11 November 1996 at 9.00 a.m. to present your case.”










6. On 11 November 1996 Lucian appeared before Wellington and was
granted the opportunity to present his case. However, it appears
that he did not deny the allegations which had prompted the issuing
of the three written warnings. This appears from a report,
in the
form of a memorandum, prepared by Wellington for the Directors of the
company, the relevant part of which reads as follows:






“On investigation of
the above case concerning (Lucian), it was found that (Lucian) on
three occasions had failed to correctly perform
his duties as a
fitter and turner.





In the first instance
on 14 August 1996, a drum centre housing was machined oversize and
was scrapped, the cost being $320.00. It
was also brought to my
attention that (Lucian) had previously made errors similar to this
and had been warned. (Lucian) confirmed this when I interviewed
him
.





On 17 September 1996
and 8 November 1996 (Lucian) continued to make errors, even though on
each occasion he was issued with a written
letter of warning. On
questioning (Lucian) he confirmed all the points brought against him,
also stating that the machine shop was a place where one
would make a
mistake continually
. I found this statement to be false as
(Lucian) was once charge hand/foreman and would check that the work
carried out by those
under him was precisionally correct…





On questioning
(Lucian) it was found that he agreed with the allegations against him
and stated that mistakes happen
…” (emphasis added).









In that memorandum Wellington recommended that Lucian be dismissed.






7. On 23 January 1997 Mr K.A. Battye (“Battye”), the company’s
Chief Executive, wrote to Lucian as follows:



“I advise that on 11 November 1996 I received a memo from the
Designated Officer, Mr Wellington. To be fair to you, I take this
opportunity to enclose a copy of the memo from Mr Wellington which
summarises the case against you. In terms of Clause 6.1 of our
registered code of conduct, I take this opportunity to invite you to
present your side of the story to me on Tuesday the 28th
January 1997…”









8. On 31 January 1997 Battye wrote to Lucian as follows:



“Having reviewed the evidence, and subsequent to your hearing in
front of me on Tuesday the 28th January 1997, I can find
no reason to disagree with the findings of the Designated Officer,
and you are herewith dismissed with effect
from 8 November 1996.”









9. In his notice of appeal to the Tribunal Lucian stated that the
appeal was in terms of s 101(7)(b) of the then Labour Relations
Act
[Chapter 28:01] (“the Act”). He based his appeal on two main
grounds. The first was that the hearing (presumably the
one before
Wellington) was conducted after he (i.e. Lucian) had been dismissed;
and the second was that the disciplinary committee
was not duly
constituted in accordance with the NEC Engineering Code of Conduct.





10. On 15 January 2002
the Tribunal heard Lucian’s appeal and reserved its judgment, which
was handed down some time later. In
the result, the appeal was
allowed and the Tribunal ordered the company to reinstate Lucian or
pay him damages in lieu of reinstatement.







Aggrieved by that result, the company appealed to this Court.





In my view, the
Tribunal erred and its decision cannot be allowed to stand. I say
so for three main reasons.





The first is that
Lucian’s appeal was not properly before the Tribunal and should not
have been entertained. I say so because
in terms of the Code an
employee who is aggrieved by the decision of the company to dismiss
him has the right to appeal against that
decision, not directly to
the Tribunal, but to the Local Joint Committee of the National
Employment Council for the Commercial Sector
(“the N.E.C.C.S.”)
through the Senior Designated Agent.





If the employee is
aggrieved by the decision of the Local Joint Committee, he has the
right of appeal to the Negotiating Committee
of the N.E.C.C.S.
through the Chief Designated Agent. It is only when he is
dissatisfied with the decision of the Negotiating Committee
that he
can appeal to the Tribunal.





It, therefore, follows
that Lucian did not have the right to appeal directly to the
Tribunal, and his appeal should not have been
heard.





The second reason why
the Tribunal’s decision cannot be allowed to stand is that the main
ground on which Lucian’s appeal to the
Tribunal was based, i.e.
that the disciplinary committee was not duly constituted “in
accordance with the N.E.C. Engineering Code
of Conduct”, was
misconceived. That is so because the Code applicable is the one for
the commercial sector, and not the one which
governs the engineering
sector and which is set out in the Collective Bargaining Agreement :
Engineering and Iron and Steel Industry,
published in Statutory
Instrument 301 of 1996. That was accepted by the Tribunal.





The only other ground
of appeal relied upon by Lucian and set out in his notice of appeal
to the Tribunal was that the disciplinary
hearing had been conducted
after he had already been dismissed. In my view, that ground was
also misconceived.





Whilst it is true that
when Evans issued the third written warning he indicated in his
letter that Lucian had been “dismissed with
immediate effect”,
that was not an effective dismissal because in terms of the Code
Evans did not have the power to dismiss Lucian.





That is why Wellington
proceeded to suspend Lucian without pay in terms of the Code, and
followed the procedure set out in the Code
which led to Lucian’s
dismissal by Battye, the company’s Chief Executive. In the
circumstances, Lucian was dismissed, not by
Evans, but by the company
acting through its Chief Executive, after the allegations against him
(i.e. Lucian) had been investigated
in terms of the Code.





Thus, both grounds of
appeal relied upon by Lucian in his appeal to the Tribunal had no
substance.





The third and final
reason why the Tribunal’s decision cannot be allowed to stand is
that on the merits Lucian had no defence.
On three occasions when
he was issued with a written warning for unsatisfactory work
performance he did not challenge the allegations
levelled against
him.





Indeed, it is clear
from Wellington’s memorandum to the Directors of the company that
when Lucian was questioned about the allegations
of unsatisfactory
work performance he agreed with all the allegations and added that
mistakes had occurred.





The Tribunal should
not, therefore, have determined the matter on the basis of what it
perceived to be procedural irregularities.
This point was made by
this Court in Dalny Mine v Banda 1999 (1) ZLR 220 (S) at
221B-E. I have no doubt that if the Tribunal had considered the
matter on the merits, assuming that the
matter had been properly
before it, it would have dismissed Lucian’s appeal.





In the circumstances,
the following order is made:







  1. The appeal is allowed with costs.



  2. The order granted by the Labour Relations Tribunal is set aside and
    the following is substituted:




“The appeal is dismissed with costs.”




















MALABA JA: I agree








GWAUNZA JA: I agree





















Honey & Blanckenberg, appellant's legal practitioners


Mhiribidi, Ngarava &
Moyo
, respondent's legal practitioners