GWAUNZA
JA: This
is an appeal against the entire judgment of the Labour Court, handed down on 28
January 2011.
The
facts of the matter are aptly summarised as follows in the respondent's heads
of argument:
The
appellant was employed as a Logistical Officer/Controller by the respondent. In
December 2009, he was charged, found guilty and dismissed, on grounds of gross
negligence and inefficiency that led to the respondent losing revenue. He lodged an internal appeal on 4 January
2010, but it was not heard. He then
lodged a complaint with the Ministry of Labour, but the matter was not settled
at conciliation, and it was referred to arbitration. The arbitrator found that there had been
irregularities in the hearing. He
ordered that the appellant be paid salary arrears and benefits to the date of
his award, then determined the matter on the merits and upheld the
dismissal. The Appellant then appealed
to the Labour Court, which dismissed his appeal.
The appellant has now
appealed to this Court. However Mr Magwaliba
for the appellant concedes the point made by Ms Mahere for the respondent and confirms that the appellant has
abandoned all of his grounds of appeal except the one that reads as follows;
“The Labour Court
erred by holding that appellant had to show more than a possibility of bias whereas
he had shown actual bias”
The allegation of bias
was directed at the chairperson of the disciplinary authority before which the
appellant appeared. The specific charge in respect of which the appellant was
found guilty and dismissed was given as follows:
“It is also
alleged that with/or without Great Milan's Knowledge you filled a Bill of Entry
(ZIMRA Form 24) using a different name, Giband.
This was against ZIMRA requirements, and is a case of fraud.”
The
following facts are not in dispute. The
Bill Of Entry issued by the appellant indicated that the consignee was “Giband
Industrial Company” and quoted their BP number as “0200077700”. The goods involved belonged to a different
customer called Great Milan, which was obliged to pay presumptive tax to ZIMRA
upon the goods entering Zimbabwe.
Giband, on the other hand, was only obliged to pay VAT and not
presumptive tax. There was suspicion
that the appellant was bribed by an official of Great Milan to facilitate its
non-payment of presumptive tax through use of Giband's name and BP number. There was also strong suspicion that this was
just a tip of the iceberg.
As already indicated, the only issue
raised in this appeal is whether the arbitrator - and the Labour Court by
upholding his decision - erred in dismissing the appellant's allegations of
bias and proceeded instead, to consider the merits of the dispute.
The appellant argues that
the chairperson of the disciplinary hearing, one Chioneso Muvandi was part of the team that investigated the
offences allegedly committed by him. As
a result, she was not only “compromised” but clearly biased. Evidence of this bias is given as an
advertisement that she caused to be published in a newspaper, before the
hearing, to the effect that the appellant was no longer employed by the
respondent. He argues that this was
indicative of the chairperson having pre-judged the matter and that, as a
consequence, there was no possibility of her being fair at all in the circumstances.
The appellant further argues that the
chairperson demonstrated actual bias by, among other things, denying him an
opportunity to cross examine the respondent's witness who stood as the
complainant.
The court was referred to
the case of Nyikadzino v Tsvangirai
2012 (1) ZLR 405 (II) at 410 E-F, in
which the appellant avers the rule in respect of bias, interest in the cause
and fairness is set out.
The arbitrator found
against the respondent in respect of his dismissal, even though he agreed that
there were some irregularities in the proceedings. The arbitrator's remedy for the irregularities alleged by the
appellant was an order for the respondent to pay the appellant back pay and
salaries. The
order reads as follows;
“1. Due to the procedural irregularities in
the hearing respondent is ordered to pay applicant his full salary and benefits
up to the date of this award (17 March 2010).
2. The dismissal is allowed to stand, as
applicant really did show some inefficiency and dishonesty.”
It
is not denied by the respondent that the chairperson concerned was part of the
team mandated to investigate the multiple charges levelled against the
appellant. Nor is it disputed that she
caused a notice to be published in a newspaper before the hearing, informing the
public that the appellant was no longer employed by the respondent. The respondent however argues that, this
notwithstanding, the appellant had failed to demonstrate actual bias on the
part of the chairperson of the disciplinary hearing. In any case, the respondent further argues,
any possible irregularity in this respect was cured by the arbitrator's award
of payment of salary and benefits to the appellant.
The Labour Court, in dismissing
the appellant's appeal, in effect upheld the arbitrator's decision on this
point. The court addressed the question
of whether or not, apart from the irregularity occasioned by the chairperson's
role in chairing the proceedings, the appellant had demonstrated actual bias
against him, on her part. The Judge
expressed the view that the adjudicator is required to execute his duties
impartially, and a 'showing' of bias is required to nullify proceedings already
concluded. The court found that the
appellant had failed to show any bias or prejudice. It held as follows in its
judgment;
“Appellant queried
why the arbitrator did not use that finding (of bias) to nullify the
proceedings. In my view the question is considered differently before and after
a hearing. The adverts complained of may be taken to show bias. Indeed I would,
on that basis, have interdicted the official from hearing the matter. However,
after a hearing has already been conducted the situation is different…. A
showing of bias is required to nullify proceedings already concluded. It is not
enough to show a possibility of bias as is the case prior to the hearing. In casu appellant failed to show bias or
prejudice arising from such bias”
I find little to fault in
the Judge's reasoning. The question of
likelihood of bias can only, logically, be raised before or perhaps during the
proceedings in question. In such cases an affected party would normally be
expected to request that the person suspected of such bias recuse him or
herself from participation in the proceedings in question. There is no record
that in casu such a request was made
by the appellant in respect of the chairperson of the disciplinary proceedings.
Consequently proceedings continued to finality. The appellant could only, after
that, have relied on demonstrated bias to request that the proceedings be set
aside. The court a quo found that he
had failed to do so.
The appellant as
indicated above referred the court to the comments made by the learned judge in
the case of Nyikadzino v Tsvangirai 2012
(1) ZLR 405 (II) at 410 E-F to the following effect;
“Indeed it harkens
back to feudal form of justice that has no place whatsoever in any modern legal
system. It should be blindingly obvious
to any judicial officer that he cannot institute a claim or complaint and also
adjudicate it himself. It follows that
the summons issued by Chief Negomo is
fundamentally flawed. For this reason
alone, the proceedings pursuant to that summons constitute a nullity and must
be treated as being void abinitio.”
Before the learned Judge
made the comments cited by the appellant, he noted as follows;
“The citation in
the summons of the plaintiff and the presiding officer as being one and the
same person was an affront to every acceptable notion of justice and procedural
fairness….”
I am not persuaded that
this authority is applicable, on the facts, to the circumstances of this matter.
Firstly, the impugned proceedings in the Nyikadzino
case were conducted by and in a court of law. Secondly, the judicial officer
concerned, that is Chief Negondo,
personally served summons on the defendant in Harare, requiring him to attend
his court at a named business centre. He himself and another person were cited
as the plaintiffs. He then proceeded to hear the matter. Thirdly, unlike in casu, the dispute in the Nyikadzino case was not premised on any
allegation of bias. The bone of contention there was the violation by Chief Negonde of procedures laid down by
statute, relating to the issue and service of summons, that is where, how and
by whom. It was because of this and other irregularities that the proceedings
in that case were nullified.
By contrast, the
disciplinary hearing in casu was not
in the nature of court proceedings. The chairperson thereof was neither a
judicial officer, nor did she institute the proceedings against the appellant.
More significantly, she was not the complainant for purposes of the
proceedings. Thus while the observations
made in the Nyikadzino case, as cited
were valid and relevant to the circumstances of that case, I do not find that one
can draw appropriate parallels between that case and the current one.
In any case numerous
authorities in this jurisdiction and beyond effectively caution against treating
disciplinary proceedings at the work place, as if they were court proceedings. The
authorities point to a number of important considerations that come into play
in considering the question of whether or not to set aside proceedings of this
nature on the basis of any alleged bias. The first general consideration is
aptly expressed thus in Geo Quinot's
“Administrative law: Cases and Materials” Second Edition at page 539;
“While it is true
that the duty to act fairly and listen to both sides lies upon everyone who
decides anything, one should be careful not to treat administrative tribunals
as though they were courts of law……. The test in matters of this nature is
whether the hearings were fair when proceedings are judged in their broad
perspective.
We
should not lose sight of the fact that one is here dealing with disciplinary
hearings presided over by largely laymen. Therefore they cannot be expected to
observe all the finer niceties that would have been observed by a court of law.
It appears that every effort was made to give the first applicant a fair
opportunity to be heard before an impartial tribunal…”
(See
also Anglo American Farms t\a Boschendal Restaurant vs Konjwayo 1992
13 ILJ 573 at 587G)
My view is that these remarks
apply with equal force to disciplinary proceedings conducted at the work place.
They are therefore apposite in casu. They resonate with some remarks
made by this Court, in particular the following comments made by the learned judge
in the case of Dalny Mine v Banda 1999
(1) ZLR 220 SC @ 221
“As a general rule it seems to me undesirable that
labour relations matters should be decided on the basis of procedural
irregularities. By this, I do not mean that such irregularities should be
ignored. I mean that the procedural irregularities should be put right.”
Further
to this, I find, on a proper consideration of the minutes of proceedings before
the disciplinary authority, that every effort was made in casu to minimise if not eliminate altogether any perception of
the appellant not having been accorded a fair trial. Albeit chaired by a person whose position had been “compromised”,
to use the appellant's terminology, it is evident from the record of
proceedings that full proceedings were held. The appellant was asked to call
his own witness but declined to do so. During the hearing, the appellant does
not appear to have been in any way restrained in expressing himself on any
issue he felt had to be addressed. The
record shows that he interjected whenever he felt he had something to say to
challenge the actions or non-action of the appellant's witness, to explain why
he had done what he was charged with and even to advance some argument in
mitigation. He also argued his case through the answers that he gave to any
questions asked, the questions that he himself put as well as uninvited
comments that he made on the correctness or otherwise of the arbitrator's
determination of the merits of the case and the court a quo's upholding of the same.
In relation to the alleged
failure by the appellant to cross examine the respondents' witness who was
officially the complainant, I find there is substance in the following
submissions made on behalf of the respondent,
“The minutes of
the hearing do not show that the appellant was denied the right to cross
examine witnesses. They actually show he was belligerent and rude to the
hearing authority as well as the Managing Director who was the complainant …”
The
minutes also show that the appellant did question the complainant, for example
about why he had not acted sooner than he did, to take corrective action related
to the charges he was facing. The respondent also contends correctly that the
appellant never asked to cross examine the complainant beyond his “rude
interjections”. He also did not indicate what other questions he may have
wanted to put to the complainant nor how his failure to do so caused him to
suffer any prejudice, if any.
I
find that, in the spirit of the commonly accepted principle “substance matters
more than form” that the totality of the disciplinary proceedings shows clearly
that the applicant adequately argued his case.
In addition to having done so, the appellant did not
deny committing the offence in question,
nor did he challenge the finding of guilt made by the arbitrator, and confirmed
by the court a quo. The ground of appeal that touched on the
issue of guilt is one of those that he has abandoned. In light of this, I find
there is merit in the following averments made on behalf of the respondent;
“Any procedural
irregularities in the matter could not outweigh appellant's guilt, and it would
be a travesty of justice for appellant to be reinstated simply on the basis of
procedural irregularity.”
This position finds
support in the comments made by Chidyausiku
CJ in Air Zimbabwe (Pvt) Ltd v Chiku Munensa & Mavis Marweyi SC 89\04,
“A person guilty
of misconduct should not escape the consequences of his misdeeds simply because
of a failure to conduct disciplinary proceedings properly by another employee.
He should escape such consequences because he is innocent”
It is also pertinent to
note that while the appellant seems to insinuate in his grounds of appeal that
the arbitrator's
compensatory award to him of arrear salaries and benefits was inadequate, he
did not take this matter on appeal, nor did he give any indication that he had rejected
the award.
As a result I find there
is no basis for faulting the finding of the court a quo that the appellant failed to demonstrate any actual bias on the
part of the chairperson of the disciplinary hearing, to the extent that
warranted nullification of the proceedings in question. Equally, I find no fault with the judge's
finding that the appellant failed to prove that he suffered any prejudice as a
result of the alleged bias.
In all respects therefore, I find
that this appeal lacks merit and ought to be dismissed.
It
is accordingly ordered as follows:
1. The
appeal be and is hereby dismissed.
2. The
appellant shall pay the costs of suit.
GOWORA
JA: I agree
GUVAVA
JA: I agree
Bere
Brothers, appellant's legal practitioners
Coghlan, Welsh & Guest, respondent's legal
practitioners
