Murowa Diamonds v Union Makumbe

The respondent was employed by the appellant as a security shift supervisor on 1 July 2004, subject to a three-month probation period. On 7 September 2004, he was issued a permit to drive company vehicles. On 20 October 2004, he was involved in an accident while driving a company vehicle. On 23 October 2004, he was charged with misconduct on three grounds: negligent damage to the vehicle, misuse of company property (traveling an extra 132 km beyond the authorized 300 km journey to and from Masvingo), and giving false evidence about the accident. Following the first disciplinary hearing, he was dismissed. The respondent appealed to the security manager, who set aside the proceedings and ordered a new hearing before Mrs Ellan Muchemwa. The second hearing resulted in dismissal with effect from 15 November 2004, with the charges reformulated as: (1) wilful disobedience to a lawful order, and (2) misuse and damage to company property. Instead of appealing to the designated authority (Mr Phil Plaisted) as required by the company's Code of Conduct under S.I. No. 165 of 1992, the respondent appealed directly to the Labour Court.

• Whether the Labour Court had jurisdiction to hear the matter when the respondent failed to exhaust internal appeal procedures as required by the company's Code of Conduct
• Whether the reformulation of charges between the first and second disciplinary hearings constituted a procedural irregularity
• Whether there was sufficient evidence to support a finding of misconduct justifying dismissal
• Whether the Labour Court's decision to overturn the dismissal was supported by the evidence

The appeal was allowed with costs. The decision of the Labour Court was set aside and substituted with an order dismissing the appeal with costs.

Where an employer's Code of Conduct contains mandatory provisions requiring employees to exhaust internal appeal procedures before seeking external remedies, failure to comply with such provisions deprives the Labour Court of jurisdiction to hear the matter. Provisions in a Code of Conduct worded using imperative language such as "shall" and "should" are mandatory and must be followed. An employee who bypasses the designated internal appeal authority and proceeds directly to the Labour Court commits a procedural error that is fatal to the employee's case. The proper course for a labour court in such circumstances is to refer the matter back so that proper procedures can be followed, rather than to assume jurisdiction and decide the matter on its merits.

The court observed that even assuming the Labour Court had been entitled to rehear the matter under s 90(2) of the Act, its conclusion was not supported by the evidence on record. The court noted there was a summary in the labour court record which was not very clear and was not dated, and which referred to proceedings and pages not in the record. The court commented that there was sufficient evidence to establish misconduct: the respondent had driven at night against instructions and had exceeded authorized mileage by 132 km. The court observed that the respondent's argument about the absence of a log book did not assist him since mileage was recorded when the vehicle was fueled and he had not challenged the accuracy of those recordings. The court also noted that the reformulation of charges between hearings, while raised by the respondent, did not ultimately affect the validity of the misconduct finding.

This case establishes important principles regarding the exhaustion of domestic remedies in employment disputes in Zimbabwe. It confirms that where an employer's Code of Conduct contains mandatory provisions requiring internal appeals procedures to be followed, employees must exhaust these remedies before approaching external tribunals such as the Labour Court. The case demonstrates that labour courts lack jurisdiction to hear matters where procedural requirements for internal dispute resolution have not been satisfied. The judgment reinforces the hierarchical nature of dispute resolution in employment law and the importance of adhering to contractual dispute resolution mechanisms. It also clarifies the extent of review powers of labour courts and the evidentiary standards required to sustain findings of misconduct in employment dismissal cases.