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