The applicant joined the respondent in 1990 as a typist. This appears to have been on a temporal basis, for, in 1992, she was confirmed as a permanent employee of the respondent. On some date in 1991, the applicant, or someone purporting to be her, filled out an employment form in which it was represented that the applicant had attended Lord Malvern High School between 1977 and 1980 and had passed three subjects at "O" Level. The form was not signed nor dated.
It is pertinent to note here, that, the applicant did not deny the respondent's averment that it was the applicant herself who filled out the form.
On 18 November 1999, the respondent's Personnel Manager requested the applicant to furnish proof of her qualifications. This, the applicant failed to do. She was then charged with misconduct before a disciplinary committee. The charges that were preferred against her were communicated to her by a letter dated 15 June 2000 that read, in part, as follows:
"RE MISCONDUCT CHARGES
1. Insubordination - wilful and unreasonable disobedience of a lawful order from a superior. Category I section I.
2. Theft, fraud, forgery, involvement in bribery, misappropriation, falsification of documents. Category I section 3.
3. Incitement, intimidation, indulging in disorderly behaviour or activities inconsistent with the express or implied conditions of his/her contract of employment. Category 1 section 5.
In the letter dated 18th November 1999, from the Human Resources Manager, you were advised that the Chief Executive had requested that you submit proof of the 3 "O" Level passes that you had claimed to possess on joining the Board in 1991, and also in the interviews of 1996, by 26th November 1999. You, however did not submit these or offer an explanation by the due date.
The Regional Personnel Officer (Northern) then wrote to you on 4th January 2000, reminding you to respond in writing to the Chief Executive's request by 12th January 2000; which she set as the new deadline. However, you did not respond in writing as had been required. Your failure to respond as required is considered to be insubordination."
The Disciplinary Committee found her guilty of the alleged act of misconduct and recommended that her employment be terminated.
The applicant appealed against this decision.
In accordance with the provisions of the respondent's Code of Conduct, her appeal was noted to the Chief Executive in accordance with the respondent's Code of Conduct who dismissed the appeal.
The applicant then filed the above application for review.
The applicant alleged, as her grounds for review:
(i) Firstly, that the Disciplinary Committee that sat to hear her matter was not properly constituted; and
(ii) Secondly, that the decision of the respondent to dismiss her is grossly unreasonable.
The application was duly opposed.
In opposing the application, the respondent raised three preliminary issues:
(i) Firstly, the respondent argued, that, the applicant has approached the wrong forum for relief.
The respondent contended that the applicant ought to have noted an appeal to the Labour Relations Tribunal in terms of section 101(7) of the Labour Relations Act [Chapter 28.01].
The issue of whether or not, in labour issues, this court has concurrent jurisdiction with the Labour Relations Tribunal has exercised this court before. In my view, GILLESPIE J has put the issue to some rest in Zikiti v United Bottlers 1998 (1) ZLR 389. I can do no better than quote from the learned judge. This is what he had to say:
" The particular point concerning the bringing of review proceedings in the High Court, in connection with an employment dispute not yet resolved in a lower authority, is generally raised as an instance of a suggested obligation to exhaust domestic remedies before approaching this court.
The Labour Relations Act does not expressly require that the domestic or statutory procedures and remedies be exhausted before an approach is made to this court.
The question whether an intention to this effect is to be necessarily implied from the legislation has therefore exercised the court on occasion. It would appear, from the authorities, that, in employment disputes the court does not hold its common law jurisdiction in principle to be ousted or suspended pending the exhaustion of domestic remedies."
In my view, the point made by GILLESPIE J is that the court will not ordinarily close its doors to any litigant who is entitled to relief from it, but, in the exercise of its inherent jurisdiction to regulate and control its proceedings so as to prevent an injustice or abuse of its process, the court may withhold its jurisdiction.
A caution is however sounded in the judgment that the courts should sparingly exercise this equitable discretion to withhold its jurisdiction, as the courts of law should be open to all.
I agree with this view.
The jurisprudential basis supporting this view is obvious and has its foundation in the universally acclaimed right of every one to an effective remedy by the competent national tribunals for acts violating rights granted him or her by the laws of the land: Article 8 of the Universal Declaration of Human Rights (1948).
In the matter before me, no reason was advanced as to why I should withhold the court's jurisdiction. It has not been shown that recourse to the machinery set up under the Labour Relations Act will confer a more effective remedy to the applicant.
I therefore decline the invitation to withhold my jurisdiction in the matter.
