OLIVINE INDUSTRIES (PRIVATE) LIMITED
(1) B. SHONHIWA (2) F. GARATSA (3) P. ZARANYIKA
SUPREME COURT OF ZIMBABWE
ZIYAMBI JA, GWAUNZA JA & PATEL JA
HARARE, SEPTEMBER 25, 2014 & MARCH 31, 2015
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.