This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.
There were no appearances for the second and third respondents.
FACTUAL BACKGROUND
The appellant was employed by the first respondent as its Chief Executive Officer (hereinafter “CEO”) between the period 2009 until the dissolution of its Board in 2013.
The appellant had been employed on a contractual basis with his subsisting contract having been renewed in May 2011.
On 14 November 2013, the then Acting Secretary for Information, Media and Broadcasting Services, wrote to the appellant placing him on leave with full pay until further notice. The letter stated, that, the appellant was placed on leave due to the exacting challenges faced by the first respondent which required urgent intervention through a full audit of its affairs. The appellant was barred from visiting the first respondent's premises or issuing any instructions to its staff.
On 30 January 2014, the appellant was notified of the allegations of misconduct against him which were said to have been unearthed during the audit. The initial decision to place the appellant on paid leave was rescinded and substituted with leave without pay pending determination of the allegations against him.
On 18 November 2014, the appellant was duly served with a notice by the first respondent's legal representatives, to attend a disciplinary hearing to be presided over by the second respondent.
The appellant faced 32 charges of misconduct which were contained in a schedule attached to the notice of the hearing.
When the disciplinary proceedings began, the first respondent abandoned 21 of the charges against the appellant, leaving only 11.
At the hearing, the appellant argued, that, it was not competent for the first respondent to undertake disciplinary proceedings based on allegations flowing from an expired employment contract.
This argument was based on his interpretation of the Labour (National Employment Code of Conduct) Regulations 2006 (hereinafter “SI15/2006”).
Counsel for the appellant contended, that, for a person to be properly charged with misconduct, he or she must still be an employee in terms of a subsisting employment contract at both the time of the commission of the offence and institution of misconduct proceedings.
He further submitted, that, what were now termed acts of misconduct had been properly approved by the first respondent's Board.
Counsel further submitted, that, the integrity of the disciplinary proceedings was further thrown into doubt by the direct role played by the Minister of Information Media and Broadcasting Services, who initiated his suspension.
The first respondent disputed the appellant's contention that it sought to improperly charge him in terms of an expired employment contract.
It averred, that, the parties were engaged in a continuous employment relationship which was highlighted by the renewal of the appellant's contract in May 2011. Counsel for the first respondent placed reliance on the Lesotho case of Limkokwing University of Creative Technology Lesotho (Pty) Ltd v Mosia Nkoko and Anor LC/REV 58/12, whose import was that an employment relationship becomes continuous where the contract of employment is renewed immediately upon the expiry of a preceding one.
Accordingly, he argued, since the acts of misconduct in question were committed during the subsistence of an employment relationship between the parties, the appellant was properly charged.
The disciplinary hearing, chaired by the second respondent, found the appellant guilty of misconduct in respect of 7 of the 11 charges levelled against him. These were counts 1, 2, 3, 6, 7, 21 and 23 on the charge sheet.
It is not in dispute that the second respondent did not pronounce the verdict of dismissal against the appellant. This was, rather, done by the first respondent.
Dissatisfied with the disciplinary hearing's decision, the appellant filed an application for review in the Labour Court.
The basis of the application was that there was gross irregularity, gross irrationality, and illegality in the manner that the disciplinary proceedings were conducted and the decision reached.
In particular, the appellant alleged gross irregularity and irrationality, or, alternatively, illegality based on its review grounds 1.1 – 1.4. He went on to allege gross irrationality, and, alternatively, illegality and procedural irregularity on the basis of a second set of review grounds, that is, grounds 3 - 3.5.
While the manner the review grounds are formulated is somewhat confusing, it is apparent that the appellant effectively submitted two sets of review grounds, each with its own alternative grounds for review.
The court a quo did not advert to the second set of review grounds (nor the alternative thereof), but, determined the matter on the basis of the first set which alleged irregularity in the proceedings as follows:
1. A number of charges levelled against the appellant related to alleged acts of misconduct arising from a contract of employment which had expired;
2. The first respondent, at all material times, either directed or approved all acts of the appellant which were then later deemed as misconduct on his part;
3. The proceedings were initiated by the Minister of Information Media and Broadcasting Services who was not a party to the contract of employment; and
4. The first respondent improperly imposed a penalty before the disciplinary proceedings were completed, contrary to SI15 of 2006 and section 12B(4) of the Labour Act [Chapter 28:01].
The appellant consequently sought nullification of the disciplinary proceedings and reinstatement as an employee of the first respondent.
The court a quo dismissed the appellant's application for review.
It held, that, the acts of misconduct in question were committed during the subsistence of the parties employment relationship.
The court found, that, the appellant did not adduce any evidence to disprove the claim that he enjoyed a continuous employment relationship with the first respondent during the period 2009 to 2013. It stated, that, the renewal of the contract, in May 2011, did not vary the essential terms of his employment as he remained both the Principal Accounting Officer and Chief Executive Officer (CEO) of the first respondent.
For this finding, the court cited an excerpt from the case of Van Der Post v Twyfelhock Diamond Prospecting Syndicate (1903) 20 SC 213 to the effect, that, where several or a series of contracts between the same parties are concluded to effect a single purpose, they should be treated as one contractual document.
The court a quo also relied on Air Zimbabwe v Chiku Mensa & Anor SC89-10 as an authority supporting its decision to uphold the outcome of the disciplinary proceedings.
It was stated in that case, that, a person guilty of misconduct should escape the consequences of his misdeeds because he is innocent, not because of a failure to conduct proceedings properly by another employee.
In relation to the appellant's third ground of review, the court held, that, the disciplinary proceedings conducted by the second respondent were not vitiated by virtue of the Minister of Information and Media Broadcasting (and not the first respondent, his former employer) having authored the letter of suspension. The court took the view, that, the absence of a letter of suspension was, in any case, not fatal to the conduct of disciplinary proceedings. It cited in this respect the following sentiments of the court in Shumbayaonda v Ministry of Justice Legal and Parliamentary Affairs and Anor SC11-14:
“…,. Suspension is not a prerequisite to the holding of disciplinary proceedings, and, a disciplinary hearing does not have to take place during the period of suspension….,.”
Finally, in so far as the final ground of review was concerned, the court a quo quoted the part of the second respondent's written decision of 15 April 2015, that specifically convicted the appellant of acts of misconduct 1,2,3, 6,7, 21 and 23. The excerpt also indicated that the second respondent had dismissed some preliminary issues raised on behalf of the appellant. A chronological analysis of the events that then ensued satisfied the court a quo, that, the first respondent had not 'prematurely concluded' the disciplinary proceedings, as alleged by the appellant.
In the final result, the court a quo reached the decision that the disciplinary proceedings against the appellant had not been irregularly conducted.
Aggrieved by the judgment of the court a quo, the appellant approached this Court on appeal. He prays that the decision of the court a quo be set aside and substituted with an order granting the application for review and setting aside both the disciplinary proceedings and his dismissal. His grounds of appeal are set out as follows:
1. The court a quo erred and misdirected itself in law in holding, that, under the Labour National Employment Code of Conduct Regulations, 2006, S.I.15 of 2006, the appellant could be charged with, and convicted of alleged acts of misconduct arising from an expired contract.
2. The court a quo erred in law in failing to find that the first respondent, through its various agents, either directed or approved all the acts of the appellant which were then later construed as misconduct. The court a quo ought to have found, that, the first respondent could not regard, as misconduct, the actions it either directed or approved.
3. The court a quo erred and misdirected itself in law in failing to hold, that, it was not competent for the first respondent to impose the penalty of dismissal before its own appointed disciplinary authority had made a determination on the appropriate penalty.
4. The court a quo fell into an error of law in failing to find that the appellant's conviction was contrary to the evidence that was placed before the disciplinary authority....,.
Whether or not the court a quo erred at law by holding that it was competent for the first respondent to dismiss the appellant before the Disciplinary Committee had made its determination
The appellant submitted, that, the first respondent pronounced the penalty of dismissal improperly, having done so before the disciplinary committee had made its determination on that issue.
In the appellant's heads of argument, and in oral submissions before the court, counsel for the appellant sought to expand the scope of this ground of appeal by impugning the determination and pronouncement of the penalty by the first respondent rather than the disciplinary authority. Counsel for the appellant contended, that, he was challenging both the timing of the penalty and the medium by which the penalty was determined and pronounced.
He submitted that there was no distinction between the two....,.
A quo, the appellant's ground of review, concerning the timing of the pronouncement of the penalty of dismissal, read as follows:
“The first respondent arrived at a decision on the penalty before the disciplinary proceedings were completed, in contravention of SI15/2006 as well as section 12B of the Labour Act (Chapter 28:01).”
The appellant, in his third ground of appeal in casu, elaborated on this argument by stressing that the first respondent had imposed the penalty of dismissal before its own appointed disciplinary authority had made a determination on the appropriate penalty.
The court a quo, as already indicated, made the finding, that, the first respondent had not 'prematurely concluded' the disciplinary proceedings when it pronounced the penalty of dismissal. The court stated as follows:
“The applicant filed his closing submissions (actually, submissions in mitigation) on 8 May 2015. On 19 May 2015 the submissions were considered by the Board. It was then resolved that the contract should be terminated with effect from 30 January 2014. The decision was communicated on 21 July 2015 through a letter dated 17 July 2015. It is therefore not correct to say the Board prematurely concluded the disciplinary proceedings….,.”
This finding by the court a quo echoed the first respondent's response to the allegation by the applicant in his founding affidavit that the former had arrived at a verdict before the disciplinary authority had done so.
The first respondent responded as follows in its opposing affidavit:
“This is denied. Retired Judge James Devittie handed down his determination on 22 April 2015.
The applicant filed his submissions in mitigation on 8 May 2015.
Thereafter, on Tuesday 19 May 2015, the ZBC Board of Directors sat and considered the nature of the offences with which applicant had been found guilty, and the submissions in mitigation filed by applicant. The ZBC Board of Directors resolved that a penalty of dismissal met the justice of the case.
Applicant's conduct, particularly acts of theft, go to the root of the employer-employee relationship.
The penalty of dismissal was handed down subsequent to the completion of the disciplinary hearing and after considering the judgment by Justice Devittie and whether there were any mitigatory circumstances….,.”
The above excerpts capture a factual conspectus which is not disputed by the parties.
The excerpts also make it abundantly clear that the first respondent, and the court a quo, subscribed to the view, that, the disciplinary proceedings were 'completed' upon the pronouncement of the guilty verdict by the disciplinary authority.
That being the case, according to that view, the first respondent, through its Board, was at large to thereafter step in and consider the appellant's submissions in mitigation and other factors, determine, and pronounce what it considered to be the appropriate penalty.
In addition to the timing of the event, the appellant takes issue with this conflation of the roles played by the first respondent and the hearing authority in a situation where the latter ought to have, itself, completed the proceedings.
It is contended, that, the proceedings could only have properly ended with the disciplinary authority hearing the parties submissions in aggravation and mitigation, and, thereafter, considering and pronouncing the appropriate penalty.
Counsel for the appellant contended, in this respect, that, the first respondent 'usurped' the responsibility of its own disciplinary authority and 'completed' the disciplinary proceedings itself.
He asserted, further, as follows in the appellant's heads of argument:
“A proper reading of SI15/2006, in the light of the lawmaker, shows, that, an employer who has appointed a disciplinary authority must live with its decision. It is unlawful for the employer to split the disciplinary process into two phases, namely, conviction and sentence, with the disciplinary authority handling the conviction phase while the employer takes over at the sentencing stage.”
The court finds there is merit in the appellant's submissions as outlined above.
While it is inelegantly formulated, the import of the disciplinary procedure laid out in section 6 of the Labour (National Employment Code of Conduct) Regulations, S.I.15/2006 is that disciplinary proceedings against an employee facing misconduct charges are conducted by the employer or a disciplinary authority appointed by it.
The tone of section 6(4)(b) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 makes it clear, that, where a disciplinary authority is appointed, it is expected to conduct the hearing as set out therein, including hearing submissions in mitigation, as well as determining and imposing the 'ultimate' penalty.
The hearing, in other words, is only completed after the 'ultimate' penalty is imposed.
The impression created in the end is that the disciplinary authority, once it starts the hearings, enjoys a great measure of autonomy in the conduct of the hearing until it has completed the process.
Considerations of fairness and the interests of justice in disciplinary proceedings support this procedural route.
It is also a route that is emphasized in various authorities on the subject.
In a section of the book 'Workplace Law' 11th Ed…., by the learned author JOHN GROGAN, that addresses the requirements of fair disciplinary hearing, the following is stated:
“As in criminal proceedings, the decision of the presiding officer should be made in two distinct stages. First, the guilt of the accused employee should be determined on the evidence, without reference to the employee's disciplinary record….,. Secondly, and after the verdict is decided, a penalty must be determined which is appropriate to the offence and the particular employee….,.”…,.
The above caption underlines three procedural issues:
(i) Firstly, the decision, must be that of the presiding officer.
(ii) Secondly, the decision consists of two parts - the verdict and the penalty.
(iii) Thirdly, and to that extent, a 'decision' that ends with just the verdict would not be complete.
What should and generally happens after a guilty verdict is pronounced, is aptly articulated as follows in what is termed 'corporate disciplinary hearing templates for misconduct' by the learned author MICHAEL OPPERMAN in his book 'A Practical Guide to Disciplinary Hearings'…,:
“Stage 5 – Mitigation, Aggravation and Sanction
1. If the employee is found guilty, the employer may formulate arguments in aggravation and the employee may advance arguments in mitigation of the offence, for purposes of the sanction to be imposed;
2. This process will be in the form of a mini-hearing and is removed from the facts of the main hearing;
3. The (disciplinary) panel will then adjourn once more and consider a sanction befitting the verdict and the arguments in aggravation and mitigation.”…,.
It would follow from what is set out above, that, after it pronounces a verdict of guilty, only the disciplinary authority is mandated to move on to the part of the proceedings that relates to mitigation, aggravation, and sanction.
Accordingly, the assumption of this mandate by someone, who, as happened in casu, did not preside over the proceedings nor participate as a member of the disciplinary panel, would be highly irregular.
That the person happened to have been the employer of the appellant, and, therefore, an interested party in the proceedings, could only have served to compound the irregularity.
The first respondent, as the employer, chose to appoint the disciplinary authority that presided over the proceedings. All that it had to do, after that, was to let the disciplinary authority conclude its work by imposing the penalty that it would have adjudged appropriate under the circumstances.
Only thereafter could the first respondent have properly taken the matter on and proceeded to determine the appellant's fate.
The evidence on record shows, that, the appellant expected the convening, by the hearing officer, of the 'mini-hearing' on 'Mitigation, Aggravation, and Sanction' that is listed by the authority cited above, as the final stage in disciplinary proceedings.
The chairperson of the disciplinary hearing, on or about 25 June 2015 received a letter to this effect from the appellant's legal practitioners, Messrs Mawire JT & Associates:
“Re: ZBC (Pvt) Ltd vs Happison Muchechetere: Mitigation Hearing
We refer to the above matter in which you availed your determination on the verdict on 22 April 2015. We filed our written mitigatory submissions on 7 May 2015. We now enquire as to when you intend to invite the parties for a mitigation hearing. Our client is now anxious to have the matter completed.”…,.
While there is no record of any response to the letter, by the chairperson of the disciplinary authority, the letter terminating the appellant's employment removes any doubt as to what then ensued.
As already indicated, the letter advised the appellant, that, following the verdict of guilty pronounced by the disciplinary authority, the full Board of the first respondent, on 19 May 2015, sat to consider the submissions made on his behalf in mitigation and resolved that termination of his contract of employment would 'meet the justice of the case.'
The first respondent, through its Board, as argued for the appellant, clearly jumped the gun, as it were, and assumed a responsibility that was properly meant to be discharged by the hearing authority.
In that way, the first respondent interfered with ongoing proceedings and irregularly brought them to an end.
This clearly cast into serious doubt the fairness of the proceedings post the pronouncement of the guilty verdict by the disciplinary authority.
It does not escape notice that the Board, having taken over a quasi-judicial role that it should not have done after the parties had filed submissions in aggravation and mitigation, is said to have related only to the appellant's submissions in mitigation and not the respondent's own submissions in aggravation.
This circumstance ran counter to the accepted procedure where an independent tribunal weighs and balances the mitigating and aggravating features of the offence in question against each other, before reaching and pronouncing an appropriate penalty.
The appellant had the right to have his submissions in mitigation considered and assessed by the same authority that had presided over the disciplinary proceedings, before pronouncement, by it, of the penalty. By the same token, the first respondent should have allowed its own submissions in aggravation to be heard and assessed by the same hearing authority.
Although not argued, the point must also be made, that, section 69 of the Constitution of Zimbabwe Amendment (No.20) Act 2013, guarantees the right of a litigant to a fair hearing before an independent and impartial court or tribunal.
The first respondent was a party to the proceedings and had an interest in seeing the appellant dismissed from his employment. Having taken over a crucial part of the disciplinary process from the independent hearing authority, the court finds, that, the first respondent, through its Board, crucially undermined the fairness of the sentencing part of the disciplinary proceedings. This could only have been to the detriment of the appellant.
Conduct that conjures the much-condemned circumstance, where someone is seen to act as both a prosecutor and judge in the same cause, flies in the face of the time-honoured adage 'justice must not only be done, but must be seen to be done.'
The court therefore finds, that, in all respects, the conduct of the Board, as outlined, constituted gross irregularity whose effect was to render the part of the disciplinary proceedings that pertained to 'mitigation, aggravation, and sanction' a nullity.
The conduct was without any legal basis, and therefore surpassed the bounds of what would ordinarily be regarded as a procedural faux pax meriting disregard or condonation by a tribunal or court in the determination of labour matters.
The court a quo accordingly erred in its finding that the following excerpt was applicable:
“…, a person guilty of misconduct should not escape the consequences of his misdeeds because of a failure to conduct proceedings properly by another employee. He should escape such consequences because he is innocent: Air Zimbabwe v Chiku Mensa & Anor SC89-10.”
The disciplinary authority in casu was prevented from conducting 'the proceedings properly' by the employer, who, acting on some undefined basis, stepped in midstream of the disciplinary proceedings, and purported to complete the process itself.
Accordingly, the 'sentencing' stage of the proceedings cannot stand and must be vacated. It is important that the disciplinary authority be allowed to properly complete its mandate.
DISPOSITION
What was before the court a quo were review proceedings.
Of the appellant's two valid grounds of appeal, the first lacks merit and will be dismissed. The second ground of appeal, being meritorious, will be upheld.
The court a quo, acting on the basis of a wrong procedural principle, erred in its finding, that, the disciplinary proceedings properly ended with the pronouncement of the guilty verdict against the appellant.
In the result, it is ordered as follows:
1. The appeal succeeds, in part, with each party bearing its own costs.
2. The judgment of the court a quo is set aside and substituted with the following:
'(a) The applicant's first, second, and third grounds for review are dismissed;
(b) The appellant's fourth ground for review is upheld.
(c) The matter is remitted to the disciplinary authority for it to consider the parties submissions in mitigation and aggravation, and, thereafter, to pronounce the appropriate penalty against the applicant.
(d) Each party shall bear its own costs.'
