Following
charges of misconduct preferred against the respondent, the Hearing
Officer appointed by the appellant found him guilty of five counts of
conduct inconsistent with the fulfilment of the express or implied
conditions of his employment contract. Consequent upon that finding,
the disciplinary authority imposed the ultimate penalty of dismissal.
Dissatisfied
with the manner in which the proceedings had been conducted, the
respondent, as applicant, filed a review application seeking an order
setting aside his suspension and the proceedings that had taken place
before the Hearing Officer. After hearing argument from both parties,
the Labour Court found in favour of the respondent. Pursuant thereto,
the court made an order setting aside the dismissal of the respondent
and remitting the matter for a fresh hearing within a period of three
months.
It
is against that order that the appellant has appealed to this Court
seeking an order setting aside that decision and replacing it with
one dismissing the review application.
BACKGROUND
FACTS
In
view of the issues that arise for determination before this Court, it
is necessary to set out the factual background in some detail. The
facts of this case are these.
The
respondent was employed by the appellant as its General Manager,
Operations, a position that was also commonly referred to as Chief
Operations Manager. The appellant, a duly registered company in terms
of the laws of this country, is a subsidiary of Meikles Ltd.
On
24 April 2014, the respondent was placed on suspension with benefits
pending investigations into allegations that he had improperly
handled the purchase of a hundred cases of Famous Grouse Whiskey from
an entity called Fly Crew Investments. The suspension was at the
instance of Meikles Ltd. It was alleged that Fly Crew Investments did
not have a valid agreement with Meikles Ltd for the supply of
whiskey; that it was not the holder of a valid wholesale liquor
licence; and that it had not provided proof of the origin of the
whiskey.
On
9 May 2014, Meikles Limited preferred two charges of misconduct
against the respondent. It was alleged that he had, firstly,
improperly authorised the purchase of the whiskey from Fly Crew
Investments, and, secondly, that he had engaged in conduct that gave
a company known as Zimsource an unfair advantage over other suppliers
of mealie meal.
The
letter containing the charges also set down the disciplinary hearing
for 14 May 2014 at the Meikles Boardroom.
Apparently,
because of the senior position occupied by the respondent and the
fact that the Executive Chairman of Meikles Ltd, one John Moxon
(“Moxon”), was to be called as a witness, a decision was taken,
by Meikles Ltd, to appoint a senior legal practitioner as the Hearing
Officer. For her services, she was to be paid by Meikles Ltd.
On
14 May 2014, the respondent, accompanied by a legal practitioner from
the firm of legal practitioners representing him, attended the
hearing but requested for the postponement of the matter. This was on
the basis, firstly, that the legal practitioner representing him, a
Mr Muza, was out of the country in Hong Kong and, secondly, that he
had only been served with the notice of hearing on Friday 9 May 2014,
giving him very little time to prepare for the hearing. The parties
agreed that the hearing be postponed and be heard during the period
27-30 May 2014. As further agreed, the respondent, later that day,
confirmed, in writing, that he was waiving any rights he may have had
in respect of the fourteen (14) day period during which the matter
was required be determined in terms of the relevant Code.
On
20 May 2014, the respondent's legal practitioners wrote to the
Hearing Officer raising a number of concerns;
(i)
The first was that the letter containing the charges did not indicate
in terms of which Code, or sections of the Code, the respondent had
been charged.
(ii)
Secondly, that since the respondent was not employed by Meikles
Limited but by TM Supermarkets (Pvt) Ltd, the decision by Meikles Ltd
to suspend and prefer charges of misconduct was null and void.
(iii)
The respondent also took issue with the appointment of a legal
practitioner, an outsider, as the Hearing Officer.
The
respondent's legal practitioners demanded the reversal of the
disciplinary process and reinstatement of the respondent and gave the
appellant up to 22 May 2014 to comply.
By
letter dated 22 May 2014, Meikles Ltd lifted the suspension and
directed the respondent to report for duty the following day at
7:45a.m. The respondent's legal practitioners responded
immediately, advising that they had not been able to contact the
respondent but had ascertained from his wife that he would only be
back late on 25 May 2014, and that, consequently, he would only be
able to report for duty on 27 May 2014, as 26 May 2014 was a public
holiday.
On
23 May 2014, i.e. the following day, TM Supermarkets (Pvt) Ltd, the
appellant in this case, then suspended the respondent without pay and
benefits in terms of the Labour (National Employment Code of Conduct)
Regulations, 2006 (S.I.15 of 2006) (“the National Code”). The
appellant simultaneously preferred a total of five charges alleging
conduct inconsistent with the fulfilment of the express or implied
conditions of his employment contract. The charges were based on the
same set of facts that had given rise to the two charges previously
preferred against him and which had subsequently been withdrawn.
Attached to the charges were various documents which the appellant
indicated were to be used during the hearing. The letter set the
matter down for hearing on Friday 30 May 2014.
On
28 May 2014, the respondent's legal practitioner wrote to the
appellant, advising that he would be engaged in the Labour Court on
30 May 2014 and that he would therefore be unable to attend the
hearing on that date. He further indicated that he would be available
to appear before the Hearing Officer on either 4 June 2014 or 10 June
2014.
Following
receipt of that letter, a Colonel Dyke and a Mr T. Mpofu,
representing the appellant, communicated with the respondent's
legal practitioner during which tentative dates, in particular 11
June 2014, were discussed. The respondent's legal practitioner
reiterated that he was not able to attend the hearing set for 30 May
2014. No confirmation of the new hearing date was made by the two
gentlemen.
In
a letter dated 30 May 2014, the appellant confirmed the discussion
between the respondent's legal practitioner and its
representatives, namely, Colonel Dyke and Thabani Mpofu, on the need
for a postponement of the hearing that had been scheduled for 30 May
2014 to a future date. In the letter, the appellant advised that the
matter would now be heard on 3 June 2014. As 30 May 2014 was a
Friday, this effectively gave the respondent only one business day
i.e Monday, 2 June, to prepare for the hearing.
On
2 June 2014, the respondent's legal practitioners once again wrote
to the appellant re-iterating that he would be in the Labour Court on
3 June 2014 and expressing surprise that, despite previous
discussions, the matter had been set down for 3 June 2014. In the
letter, he again sought a postponement.
It
is what happened on 3 June 2014, the date of hearing, that gave
genesis to the proceedings before the Labour Court.
On
that day, the respondent, and a legal practitioner from the firm
representing him, appeared before the Hearing Officer. A request for
the matter to be postponed was refused. Instead, the Hearing Officer
stood the matter down for an hour, indicating that witnesses, some
from as far afield as Victoria Falls, were in attendance. The
respondent's legal practitioner, Mr Muza, eventually appeared
before the court at 12 noon. At that stage he raised a number of
objections. Firstly, that the respondent required a copy of the order
for 300 bags of mealie meal that formed part of the charges against
him. He also required the procedure manual, a summary of the
employer's evidence and access to the respondent's laptop, which
was in the appellant's custody, in order to prepare his defence.
Expressing the view that the respondent was merely trying to
facilitate a postponement of the matter which had been denied, the
Hearing Officer ordered that the hearing proceed. She was of the view
that since the employer was to call a total of six (6) witnesses, it
was unlikely that the matter would get to the defence case by the
close of business that day, and, accordingly, directed that the
documents be furnished by the close of business so that the
respondent would have the opportunity to prepare his defence
“especially after hearing the evidence of the witnesses called by
the employer.”
There
were three other objections raised after the ruling by the Hearing
Officer that the matter proceeds.
The
first was that the Hearing Officer should recuse herself because she
was not an employee of the appellant; that there were other suitable
persons within the company who could conduct the hearing; and that,
in any event, as she stood to be paid for her services by the
appellant, she was likely to be biased against the respondent.
It
was also submitted that the involvement of Thabani Mpofu, who was an
outsider, vitiated the proceedings.
Whilst
accepting that Thabani
Mpofu's
status within the appellant did not appear to be clearly articulated,
the Hearing Officer concluded that Thbani
Mpofu
was working for the appellant on what appeared to be a consultancy.
She accordingly dismissed all the objections raised, including the
objection that the suspension was unlawful because, at the stage when
the respondent was again suspended, on 23 May 2014, he had not yet
been reinstated.
After
the several rulings by the Hearing Officer, the respondent's legal
practitioner complained that he and his client were very unhappy
about those rulings, in particular, that the hearing proceeds in the
absence of the documents requested. He complained that they were not
in a position to cross-examine witnesses without those documents. He
also questioned the set down of the matter when it had been made
clear in several correspondence that he would not be available on 3
June 2014. He further complained that the hearing was an ambush.
That
notwithstanding, the Hearing Officer gave the green light for the
appellant's first witness to be called.
At that stage, the respondent and his legal practitioner then walked
out of the hearing.
After
the respondent and his legal practitioner had walked out, various
witnesses were called at the instance of the appellant. In a
determination dated 6 June 2014, the Hearing Officer found the
respondent guilty of all the charges preferred against him. An
invitation to the respondent to address in mitigation of the
punishment to be meted out was ignored. In a ruling dated 11 June
2014, the Hearing Officer imposed the ultimate penalty of dismissal.
APPLICATION
FOR REVIEW BEFORE THE LABOUR COURT
Dissatisfied,
the respondent, as applicant, filed an application for review before
the Labour Court seeking the setting aside of the suspension and
disciplinary proceedings. The basis of the application was that:
(a)
The decision by the hearing authority to allow access to certain
documents and the laptop only at the end of the first day of hearing
was irrational in that it compelled the respondent to conduct his
case without the documents which the hearing authority had agreed
should be furnished.
(b)
The disciplinary process was conducted in circumstances which
exhibited a real possibility of bias.
(c)
John
Moxon
could not properly depose to an affidavit on behalf of the appellant,
a separate legal entity from Meikles Ltd, which he was Executive
Chairman of.
(d)
Inadequate notice of the hearing set for 3 June 2014 had been given.
(e)
The suspension was irregular as it was effected by one Colonel Dyke
whose position within the appellant was unknown.
(f)
The re-suspension effected on 23 May 2014 was null and void because,
as of that day, he had not been fully reinstated; and
(g)
In the absence of an agreement on the date and time of reinstatement,
the finding that he should have made himself available for work first
thing on 23 May 2014 was irrational.
The
application for review was opposed by the appellant on a number of
grounds.
(i) First,
that John
Moxon
could properly depose to an affidavit on behalf of the appellant.
(ii)
Second, that the failure to cite the authority that made the decision
was a fatal omission.
(iii)
Third, that the respondent had failed to exhaust domestic remedies
provided for in section 8(6) of the Code of Conduct which allows a
party aggrieved by a decision or manner in which his matter is
handled to refer the case to a labour officer.
(iv)
Fourth, that the failure to file a supporting affidavit to the
application exhibited mala fides on the part of the respondent.
(v)
The appellant further averred that, had the respondent genuinely
wanted to use the various documents in his defence, he should have
requested for them prior to the hearing, and that, “in any event
they were going to be furnished to him before presenting his
defence.”
(vi)
The appellant further averred that the appointment of a legal
practitioner as Hearing
Officer
was permissible in terms of the law. Further, that the respondent
wanted the Hearing
Officer
to set the matter down on a date that suited his convenience.
(vii)
It also disputed that the respondent was not given adequate notice of
the hearing, having known of the charges since 23 May 2014.
(viii)
Lastly, it stated that, once the respondent had been re-instated, he
should have reported for work immediately.
After
hearing argument on the issues raised in the review proceedings, the
Labour Court made a number of findings.
(i)
First, that the opposing affidavit filed by John
Moxon,
Chief Executive Officer of Meikles Ltd, complied with the Rules,
notwithstanding that the employer was TM Supermarket (Pvt) Ltd, a
subsidiary of Meikles Ltd.
(ii)
Second, that the failure to cite the Chairperson of the disciplinary
committee was not a fatal irregularity since it was clear that the
Hearing
Officer
was appointed by, and acted at the behest of the appellant.
(iii)
Third, that Colonel Dyke had the authority to act on behalf of the
appellant, and, consequently, his involvement in the process was not
irregular.
(iv)
Fourth, that although the respondent walked out of the disciplinary
proceedings, he had the right to seek the review of that part of the
proceedings that took place in his presence.
(v)
Fifth, that it was an irregularity for the Hearing
Officer
to proceed with the hearing after directing that the documents and
laptop that the respondent required be made available at a later
stage in the proceedings.
(vi)
Lastly, that the involvement of persons not employed by the appellant
was not necessarily irregular.
The
court found that the appellant had satisfactorily explained the
involvement of Colonel Dyke. There was also nothing irregular in the
appointment of a legal practitioner as Hearing Officer even though
she was to be remunerated by the appellant at the end of the day. The
court ultimately found that the failure to provide the documents and
laptop were a reviewable irregularity and that a perception of bias
had been created. On that basis, the court set aside the order
dismissing the respondent and directed the remittal of the matter to
the appellant.
The
present appeal is against that order.
GROUNDS
OF APPEAL
The
appellant has attacked the findings of the court a quo on four
grounds. I cite these verbatim:
“1.
The court a quo erred holding (sic) that the respondent's failure
to cite the Presiding Officer of the Disciplinary Hearing was not
fatal to its petition for Review. At law. when one attempts to impugn
proceedings on account of the conduct and bias of a presiding
officer, it is peremptory that such adjudicator be cited and joined
as a party in the Review proceedings.
2.
The court a quo grossly misdirected itself in determining that the
presiding officer in the respondent's hearing was biased. Bias can
only be determined in the face of cogent facts evidencing such bias
and cannot be inferred from a refusal to postpone a matter that was
time-sensitive and had been, on an earlier occasion(s), been delayed
(sic).
3.
The court a quo erred in failing to hold that, by the respondent
abandoning and absenting himself from the disciplinary proceedings,
he thereby abdicated any right and entitlement to impugn such
proceedings or the proceedings eventual outcome. It is an established
rule of law that if an employee walks out of the proceedings, he does
so at his own peril and at the palpable risk of having the
proceedings conducted in his absence.
4.
The court a quo grossly misdirected itself in finding that there was
a procedural irregularity as regards the respondent's request for
documents. The finding was grossly irregular as evidence had led
(sic) showing that the documents requested by the respondent were for
the preparation of his defence and not documents that were to be used
by the applicant in the prosecution of its case against the
respondent. In any case, the respondent was never denied the
documents, but, instead, denied a spurious request for postponement.”
APPELLANTS
SUBMISSIONS ON APPEAL
In
motivating its grounds of appeal, the appellant made the following
submissions.
(i)
First, the allegations of bias on the part of the Hearing
Officer
were not a trifling matter. The party accused of partiality should
therefore have been given the opportunity to explain or defend
herself. This is particularly so given that the Labour Court
exercises the same powers of review as does the High Court.
In
terms of the High Court Rules, Rule 256 in particular, an application
for review must be directed at, inter alia, the presiding officer of
the tribunal.
(ii)
Secondly, in view of the fact that the hearing authority was
presiding over proceedings that were time sensitive, the request for
a postponement was considered against this requirement.
(iii)
Thirdly, no bias was exhibited.
(iv)
Lastly, by walking out of the proceedings, the respondent had waived
all rights to impugn the entire proceedings, including that part of
the proceedings that had taken place in his presence. He could not,
therefore, appeal or seek the review of a process he had abandoned.
RESPONDENT'S
SUBMISSIONS ON APPEAL
The
respondent, on the other hand, submitted as follows;
(i)
First, the appellant had sought a remittal of the matter to the court
a quo. That relief having been granted, the appellant could not have
appealed against the order.
(ii)
Second, that the Hearing Officer does not exist independently of the
employer. The substance of the dispute concerned the irregularities
in the disciplinary processes of the appellant. That issue could be
determined without the need to involve the authority. In any event,
the law is now settled that it is improper for an adjudicator to seek
to justify its conduct or pitch camp with one of the litigants. There
were no other facts which the authority was required to set out as
the record of the proceedings was before the court.
(iii)
Third, that there is no law that bars a litigant from challenging
conduct that takes place in his presence.
(iv)
Fourth, once the Hearing Officer accepted the request that the
documents and laptop should be made available, she could not proceed
before these were made available. In fact, by nevertheless proceeding
with the hearing, the Hearing Officer gave the impression of bias.
(v)
Lastly, the involvement of Colonel Dyke and Thabani Mpofu, who were
outsiders, vitiated the proceedings.
ISSUES
FOR DETERMINATION
I
consider the issues that arise for determination before this Court to
be the following;
(i)
First, whether it was mandatory, on the part of the respondent, as
applicant a quo, to cite as a party, the Hearing Officer who chaired
the disciplinary proceedings. If so, whether the non-citation renders
the entire review proceedings a nullity.
(ii)
Second, and only in the event that the answer to the first issue is
in the negative, whether the proceedings before the legal
practitioner were afflicted by procedural irregularity as would
justify an order setting them aside.
(iii)
Third, whether, in any event, the legal practitioner conducted
herself in such a way as to induce a sense of bias.
(iv)
Fourth, the implication, in law, of the respondent walking out in the
midst of disciplinary proceedings and attacking the conduct of the
portion of the proceedings that took place in his presence. In
particular, whether he has the locus standi to launch a review
application in respect of that part of the proceedings that took
place during his presence.
(v)
Fifth, the effect on the proceedings following the involvement of
Colonel Dyke and Thabani Mpofu, who prosecuted the disciplinary
proceedings on behalf of the appellant.
I
deal with each of these in turn....,.
WALKING
OUT OF PROCEEDINGS - WHETHER CONSTITUTES WAIVER
The
submission by the appellant that when a party absents himself from or
walks out of disciplinary proceedings, he waives his right to
challenge the conduct of the proceedings is, in general terms,
correct. A number of cases decided by this Court have stressed this
principle.
See,
for example: Moyo v Rural Electrification Agency SC04-14; Emmanuel
Masvikeni v National Blood Service Zimbabwe SC28-19.
In
the matter that gave rise to the review proceedings before the court
a quo, the respondent made it clear that he was not challenging the
process that took place after he walked out. Rather, he was
challenging the proceedings that took place in his presence.
The
court a quo reached the decision that in these circumstances the
employee cannot be said to have waived his rights to challenge what
had happened in his presence.
I
am constrained to agree with the court a quo in this respect.
The
principle that comes out of cases such as Moyo v Rural
Electrification Agency SC04-14 and Emmanuel Masvikeni v National
Blood Service Zimbabwe SC28-19 is that a person cannot walk out of a
hearing and thereafter allege that things done in his absence are
subject to review by the court. In a review, one is concerned with
the procedural propriety of proceedings and not the merits of the
matter. If, for example, a disciplinary committee is not properly
constituted, an employee who walks out of the proceedings taking
place before that committee can properly seek the setting aside of
those proceedings on account of that irregularity.
In
the present matter, the respondent's complaints touched on
processes that occurred in his presence before he and his lawyer
walked out of the proceedings. The principle that comes out of cases
such as Moyo
v Rural Electrification Agency SC04-14 and
Emmanuel
Masvikeni v National Blood Service Zimbabwe SC28-19 has
no application in these circumstances.
