REPORTABLE ZLR (100)

Judgment No. SC 126/04

Civil Appeal No. 349/98

PROTON BAKERY (PRIVATE) LIMITED v

MIKE TAKAENDESA

SUPREME COURT OF ZIMBABWE

SANDURA JA, MALABA JA & GWAUNZA JA

HARARE, NOVEMBER 8, 2004 & JANUARY 27, 2005

T Biti, for the appellant

The Respondent in person

GWAUNZA JA: This is an appeal against a judgment of the Labour Relations Tribunal, in terms of which the appellant was ordered to reinstate the respondent to his former employment without loss of salary and benefits, or pay him damages in lieu of reinstatement.

The appellant gives as its main ground of appeal, the following:

“1.1 The learned Chairman erred as a question of law in finding as a fact

that the Appellant never made an application for permission to

terminate respondent’s contract of employment, consistent with s 3 of

the Labour Relations Termination (General Condition of Employment)

Regulations SI 371/85, and that appellant never suspended the

respondent.

1.2 The finding of fact that the application had (not)been made was grossly

unreasonable as to constitute a question of law particularly given

(that);

a) in all the proceedings in the court a quo it had always been common

cause that in fact an application had been made consistent with SI

371/85;

b) in any event during the hearing before it, the Tribunal itself did not

raise the issue with the appellant to afford him the opportunity to

provide an explanation as to how the application was made, and to

produce copies of same, if available.”

In elaboration of this ground of appeal the appellant asserts that the hearing in the court a quo lasted five days, during which evidence was heard from witnesses called by both parties; that pages 1 to 118 of the record of the proceedings contain evidence on the merits of the case and that the parties had been asked to and did, file detailed closing submissions meant to assist the court in making its determination. The appellant charges, however, that the court a quo disregarded all this evidence, which was essentially addressing the merits of the case, and instead, made a factual finding on a matter that had not been argued before it. On the basis of that sole finding, it is further argued on behalf of the appellant, the court a quo had reached the determination now being appealed against.

The evidence before this court shows there is substance in the appellant’s assertions. As correctly pointed out by the appellant, the issue before the court a quo was whether or not the respondent had abandoned his work station and whether that abandonment amounted to a breach of the implied or express provisions of his contract of employment.

Evidence on this issue was led before the Labour Relations Officer who first heard the matter, then again before the Senior Labour Relations Officer who entertained the respondent’s appeal. More detailed evidence on the very same issue, was, as already indicated, heard before the court a quo. At no time during these various hearings of the matter was the question ever raised or argued, whether or not the appellant had – verbally or in writing – suspended the respondent before seeking permission to dismiss him.

It is clear from the judgment of the learned Chairman of the Labour Tribunal, that his finding concerning the matter of the respondent’s suspension was

based on his own reading of the record. He noted as follows at p 2 of the judgment:

“My reading of the record (of appeal) does not reveal that the appellant was ever written a letter suspending him from employment. In stating this observation, I am not unaware that a suspension does not have to be in writing. The record does not even say that the appellant was verbally suspended”.

The appellant argues, in the light of all this, that the action of the court a quo in reaching a material decision on its own, amounted to gross irregularity justifying interference by this court on the principles that have now become trite¹.

I am, for the reasons outlined below, persuaded by this argument.

Firstly, the respondent himself never took issue with the way he was made to leave his employment. If anything, as several excerpts from correspondence emanating from him showed, the respondent considered himself as having been suspended before permission to dismiss him was sought. He must have had a basis for this attitude.

Secondly, it was never put to the appellant that it had not properly suspended the respondent before applying for leave to dismiss him. Had this been done, the appellant would have been given an opportunity not only to explain the process it had gone through in seeking to terminate the respondent’s employment, but also, if necessary, to proffer documentary or other evidence to support its assertions.

Thirdly, the two Labour Relations Officers who heard the matter both proceeded on the premise that the respondent had properly been suspended and that the appellant was at the time of the hearings seeking permission to dismiss him. It is in my view safe to assume that the two Labour Relations Officers must have had a reason for proceeding on that premise.

Fourthly and most importantly, the court a quo had ample opportunity in the 5 days during which viva voce evidence was led on the merits of the case, to solicit evidence on the specific issue of the respondents suspension, if, as now appears, it considered such evidence decisive. The court, however, did not solicit this evidence. Instead, it went on mero motu and after the event, to pick on a procedural irregularity neither raised nor argued before it, and base its determination solely on that technicality. This it did to the exclusion of the not insubstantial evidence placed before it on the merits of the case.

As correctly contended on behalf of the appellant, this Court has in the past emphasised the need to avoid determining matters on the basis of technical irregularities in labour disputes, particularly where such irregularities can be cured by the leading of evidence². Evidence in casu could easily have been led on the technicality in question.

The misdirection on the part of the court a quo is left in no doubt. It is my view, so serious as to leave this Court with no option but to interfere with the determination of the lower court.

Having said that, I still deem it pertinent and necessary to consider the merits of the case, as argued in the court a quo.

The allegations levelled against the respondent were that on 9 January 1994, he had abandoned his place of work before a relief operator arrived and without obtaining the authority of his supervisor. As a result, when a bread making machine broke down there was no one in attendance, leading to an interference with the bread making process, and the loss of 105 dozen loaves of bread. This conduct was deemed to be inconsistent with the fulfilment of the express or implied terms of the respondent’s contract of employment. It is recorded that the respondent himself acknowledged it was company policy that an employee doing the type of work that he was doing, was never to leave his post until his relief operator arrived. He did not deny abandoning his post before a reliever arrived.

It is also recorded that the worker’s committee representing the respondent in proceedings before the Labour Relations Officer conceded that the respondent had acted wrongly by abandoning his post. Both the Labour Relations Officer and, on appeal, the Senior Labour Relations Officer, were satisfied on the evidence placed before them, that the respondent was guilty of the misconduct alleged, hence their decision to grant, and confirm the granting of, permission to dismiss the respondent.

I am satisfied the decisions were correct.

The respondent, in his heads of argument has quite properly not sought to persist with his original defence to the charge. He has instead, seized on the lifeline extended to him by the court a quo, and restricted himself to the new defence that he had not been properly suspended by the appellant before dismissal. For the reasons already stated this was, for him, not a competent defence.

When all is considered, therefore, I find the appeal has merit and must succeed.

In the premises it is ordered as follows;

1. The appeal be and is hereby allowed with costs.

2. The decision of the court a quo is set aside and

substituted with the following;

“The appeal be and is hereby dismissed with costs”.

SANDURA JA: I agree

MALABA JA: I agree

Honey and Blanckenberg, appellant’s legal practitioners