Mandizha v T.M. Supermarkets (Pvt) Ltd & Anor (HH 54 of 2004) [2004] ZWHHC 54 (16 March 2004)

HH 54-2004 HC 7251/01 Ref HC 18381/99 WILSON MANDIZHA versus T. M. SUPERMARKETS (PRIVATE) LIMITED T/a TM SUPERMARKETS HIGH COURT OF ZIMBABWE HUNGWE J HARARE 21 January 2002 and 17 March 2004 Applicant in Person Mr T. Biti, for the respondent HUNGWE J: Applicant was employed by the respondent at its Kamfinsa Branch as a Section Manager. On 2 February 1999 an incident occurred as a result of which the branch manager confronted the applicant. He left the supermarket after he was told to produce duplicate till slips which he had taken from his charges. He did not report for work until on the 22nd February 1999 when he came demanding his wages. Respondent had reported the matter to police on 7th February 1999. He was arrested that day. On 15 December 1999 he filed this application seeking an order setting aside his suspension from employment with the respondent and reinstatement into his employment without loss of benefits together with payment of applicant’s full salary, bonuses and benefits he should have received for the period of his suspension. Respondent made application to dismiss applicant to the Labour Officer on 22 February 1999. The basis of this application was that as there was a code of conduct in place at the respondent’s place of business binding the parties to this dispute, his suspension in terms of the provisions of Statutory Instrument 371 of 1985 Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations was unlawful. He contended that by adopting the wrong procedure, the act of suspension was a nullity and should be so declared. In response the respondent took the point that the application for review being made almost 10 months from the date of suspension is way out of time as no condonation for the failure to comply with Rule 259 was made. Applicant then sought and was granted leave to file a court application for condonation. HH 54-2004 Both matters were then argued on the same date. In HC 7251/01 applicant sought to explain the reason for the delay in filing his application for review. He states that he was suspended on 22 February 1999 without pay or other benefits on suspicion that he had committed fraud and theft by conversion. He believed that the application to the labour relations officer, which respondent had indicated would make, would be copied to him as the letter of suspension did not disclose the grounds of suspension. He believed too that the labour matter was being held in abeyance pending the resolution of the criminal proceedings against him. In opposing the application the respondent points out that there is no reasonable explanation for the delay in excess of ten months. Applicant absconded and only pursued this application after he had been acquitted in the criminal trial. It points to the fact that although he was suspended on 22 February 1999 he only filed the application on 15 December 1999. There is no explanation as to what prevented him from filing the application earlier. After he did so he did not pursue the matter until May 2001 the same year he was acquitted. The period of delay for which an explanation is called is that preceeding the filing of the application. About that period, he states that he was labouring under a mistaken view of his status until he consulted the trade union. He does not say when he consulted the trade union. One would have expected him to have consulted his union soon after his suspension. If that is so one would have expected him to have been made aware of the validity or otherwise of his suspension. It is possible that he approached the trade union late. If that is the position it is all the more reason why this fact ought to have been disclosed so that the court is placed in a better position to assess his bona fides. It would appear that the only reason he has now sought to pursue this application is that he believes the acquittal in the criminal court strengthens his application for an order of reinstatement. Condonation is not granted as a matter of course. It is granted on good cause shown. In the present case had applicant filed for condonation without having to be reminded by the respondent, his bona fides would have been much more apparent. I am not satisfied by the explanation put forward for the late filing of the application for condonation. However, he is a self-actor. He may well have acted out of pure ignorance of procedure. His case deserves to be heard. HH 54-2004 I would have refused the grant of condonation for the failure to comply with Rule 259 had I not decided to allow the applicant to put forward his case on the merits. Having allowed applicant audience, I considered the merits of his case. The issues which I have to resolve are (a) whether the suspension of applicant is valid; (b) if not so, whether he should be reinstated with full pay and other benefits as prayed in the order he seeks. Respondent argued that it correctly filed an application for permission to terminate applicant’s employment with it in terms of section 3 of S. I. 371 of 1985 as applicant, being a section manager, was not covered by its employment code of conduct. It argued that by virtue of his duties applicant was a managerial employee, and as such, was not covered by the code of conduct. In order to determine the extent of its cover one looks at the code. The Code of Conduct in Part 1 under “General” it is provided thus: “3.1 This Code of Conduct is made in terms of Statutory Instrument 379/1990 Labour Relations (Employment Code of Conduct) Regulations, 1990 and shall apply to all commercial sectors under the purview of the Collective Bargaining Agreement for the Commercial Sectors and to employers and employees defined in that Agreement.” (my own underlining) The code of conduct refers to the definitions given in the Collective Bargaining Agreement : Commercial Sectors as “that Agreement”. The agreement is S. I. 45 of 1993. In section 2 titled “Application” it provides thus: “2(1) This agreement shall apply to – a) b) all employers in the commercial sectors; and all employees in that undertaking in any occupation where wage or salary is $20 000-00 per annum or less; in Zimbabwe.” There is no dispute as to the emoluments of the applicant at the time $27 600-00 per annum. It seems to me that applicant is not such an employee as was envisaged to be covered by the Agreement. Even accepting that applicant was an employee, he still is excluded by this definition, from being covered by the code of conduct. I find on the basis of the above that in fact at the relevant time, applicant was not covered by the code of conduct. Having come to that conclusion, the next necessary issue to decide is whether notwithstanding this finding, it can be said that the suspension of HH 54-2004 the applicant is null and void. The avents surrounding the applicant’s suspension amount to this. On behalf of the respondent, the branch manager suspected that applicant had committed a dismissable offence. He confronted him about the charge or discrepancy and the absence of till slips to compare with. Applicant literally absconded. He put himself beyond everyone’s reach till his reappearance on 22 February 1999. He was arrested. The cause of his arrest was not the charges later preferred against him but because he had turned violent when demanding his wages on 22 February 1999. These charges were then immediately preferred against him. It seems to me to be splitting of hairs to argue that he did not know the basis of his suspension. He had been confronted. That led him to abscond. He knew what was afoot. After he absconded, police who were seeking to question him on these allegations could not locate him nor did he respond to notices sent to him by registered post to all his known addresses. He deliberately avoided contact with the relevant parties to this dispute. If the respondent or the labour officers failed to set the matter down for hearing timeously it can only be the applicant’s fault. I therefore find that the matter filed in the labour office was properly filed by the applicant. It did not proceed due to the tactics adopted by applicant. That matter is properly before the labour office. It was held back by this application for review. That Matter must proceed before the labour officer. In the circumstances, the present application is dismissed with costs. Honey & Blanckenberg, respondent’s legal practitioners.