MAKARAU
J:
This
is an application for review brought in terms of Order 33 of the High
Court Rules. The facts of the matter are not in dispute. They are as
follows:
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, firstly that the
Disciplinary Committee that sat to hear her matter was not properly
constituted and, 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, [Chapter28.01].
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 Bottlers1.
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 land2.
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.
(ii)
The second preliminary issue raised by the respondent relates to the
late filing of the application for review.
The
point was first raised in the respondent's opposing affidavit.
Thereafter, the applicant filed an answering affidavit together with
an affidavit headed "Affidavit of Condonation." It has been
argued on behalf of the respondent that because the affidavit
explaining the delay was not filed before the main application and
was not accompanied by a formal application, the application for
condonation must be denied.
I
find this objection frivolous especially in view of the provisions of
rule 4(c) of the High Court Rules.
In
terms of this rule, the court is empowered to authorise departures
from the strict observance of its own rules where the court it is
satisfied that such departure is required in the interests of
justice.
The
departure from the rules by the applicant was very slight in my view.
Further, it did not occasion any prejudice to the respondent who,
before the hearing, was aware that an application for condonation
would be made and the grounds thereof.
In
terms of rule 259, a party intending to institute review proceedings
must do so within 8 weeks from the date of the decision to be
reviewed. If he or she does not do so within the prescribed period,
he or she must first make an application for the extension of the
period.
In
considering an application for the extension of the period within
which the review proceedings may be instituted, the court will have
regard to the period of delay, the explanation for such delay, the
importance of the case, the prospects of success, the respondent's
interests in the finality of his judgment, the convenience of the
court and the avoidance of unnecessary delay in the administration of
justice.
This
in my view, grants the court wide discretion to come up with a value
judgment that best serves the interests of justice.
The
consideration of an application for condonation for late filing of a
review application is not a hurdle course where the applicant has to
pass certain hurdles before their application can be granted. In my
view, it is a consideration in which all or some of the factors I
have referred to above are taken into account to enable the court to
make a determination in the best interests of justice.
I
have taken into account all the factors referred to above. In
particular, I have been influenced by the respondent's attitude that
the period of delay is not unreasonably long. While the reason for
the delay may not be termed impressive, I have taken into account the
strong merits of the applicant's case and regard this as pivotal in
tipping the scales in favour of the granting of the application for
condonation.
I
now turn to the merits of the application.
The
applicant has advanced, as one of the grounds for review, the fact
that the Disciplinary Committee that sat to determine the charges of
misconduct against her was improperly constituted.
She
alleges that no member of the Workers Committee who are also members
of the Works Council sat on the committee when the code stipulates
that three should sit.
Relying
on the Supreme Court judgment in Madoda
v Tanganda Tea Company Limited3,
the applicant argued that the decision of the committee was therefore
a nullity by virtue of the non-compliance.
I
agree.
The
judgment in Madoda's
case binds me to hold that where a disciplinary committee is
established in terms of a registered code of conduct and the
composition of the committee is not as provided for in the code, the
deviation from the provisions of the code constitutes a procedural
irregularity, which if not vitiating the proceedings, renders them
voidable at the instance of the employee.
Assuming
that I am wrong in holding that the decision of the committee was a
nullity by reason of non-compliance with the provisions of the code
of conduct, in my view, the applicant would succeed in her
application on another basis. This is as follows.
The
applicant has alleged as one of the grounds for review that the
decision of the respondent was grossly unreasonable. This in my view,
brings under the spotlight the content of the decision of the
respondent to dismiss the applicant.
The
powers of the High Court on review have been extensively discussed.4
In
the matter of Secretary
for Transport v Makwavarara (supra),
the Supreme Court accepted as correct the concession by both counsel
that administrative action is subject to control by judicial review
under three heads, illegality, irrationality and procedural
impropriety.
It
is with the first ground that we are concerned with in these
proceedings.
In
my view, the respondent made an error in law in arriving at its
decision.
According
to the facts of the application, it is not in dispute that the
applicant did not furnish the respondent with proof of her
qualifications. It is further not in dispute that she obtained her
employment with the respondent on the strength of the alleged
qualifications.
In
my view, it cannot be disputed that if the respondent had known way
back in 1991 that the applicant was not possessed of the
qualifications she purported to hold, she would not have been
employed. The misrepresentation by the applicant therefore induced
the contract between the two parties. This point has not escaped the
respondent's legal practitioner. He correctly notes in his
supplementary heads of argument that the question of the applicant's
qualifications was a pre-requisite to employment.
In
the circumstances of this matter, the remedy pursued by the
respondent in charging the applicant with an act of misconduct was in
my view, ill conceived.
By
charging the applicant with an act of misconduct, the respondent has
pushed itself into a legal conundrum. It is this: the applicant is
either an employee of the respondent or she is not. If she is an
employee, then the question of her qualifications falls away. But,
only employees of the respondent can be charged with misconduct.
Therefore, by charging the applicant with an act of misconduct, the
respondent has elected to clothe the applicant with the status of an
employee.
However,
once it has accepted that the applicant as an employee, the effect of
any misrepresentations inducing the contract of employment falls
away. In other words, the respondent in my view, can only use the
misrepresentation to terminate the contract of employment and not to
discipline the applicant.
If
I were wrong in my above finding, I still would have upheld the
applicant's application on another basis.
It
is common cause that the applicant was employed as a clerk/typist.
Although her duties were not given in the application, one would
assume that these were the ordinary duties normally associated with
this post. For the charge of misconduct against the applicant to be
sustainable, the respondent must have ordered her to perform those
duties and responsibilities required of her by her contract of
employment. See Zupco
vs Mabhande & Another5.
The
production of educational certificates is a singular act that is
expected of most people joining employment at whatever level. It is
not a duty or responsibility expected in terms of any contract of
employment. It is a duty or responsibility expected of all employees,
to bring into being the contract of employment, unless the employer
decides to overlook or waive its right to this requirement.
In
my view, failing to produce educational certificates should
rightfully result in no contract at all and cannot found ground for
dismissal once the contract has come into being.
On
the basis of the foregoing, I make the following order:
1.
The purported dismissal of the applicant from employment is hereby
set aside.
2.
The respondent is to pay the applicant's costs.
Mudambanuki
& Associates, applicant's
legal practitioners
Dube,
Manikai & Hwacha, respondent's
legal practitioners
1.
1998 (1) ZLR 389
2.
Article 8 of the Universal Declaration of Human Rights (1948)
3.
1999 (1) ZLR 374 (S)
4.
See Fikilini v Attorney General 1990 (1) ZLR 105 (S); Secretary of
Transport v Makwavara 1991 (1) ZLR 18 (S)
5.
1998 (2) ZLR 150
(S)
