The respondent was employed by the appellant as a Sales
Marketing Manager. During the currency of his employment he fell ill and
proceeded on 90-day statutory sick leave. At the expiry of his statutory leave
his doctor recommended retirement on medical grounds.
Upon expiry of his sick leave, he did not report for duty
on account of his continued illness. He was then required to appear before the
ZESA Medical Board for a final assessment of his medical condition and
recommendation.
For purposes of performing its function, the Medical Board
requested the respondent to provide a specialist surgeon's report. He was unable to provide the specialist
surgeon's report as requested. His
failure to provide the specialist report and continued absence from work prompted
the appellant to institute disciplinary proceedings against him alleging
absenteeism from work.
The matter was initially set down for hearing before the
disciplinary committee on 23 December 2011. The notice to appear before the
disciplinary committee, dated 14 December 2011, advised the respondent of his
rights and cautioned him that in the event of him defaulting, the hearing would
proceed in his absence. To this end, the notice reads in part:
“Please note that you must appear before the Disciplinary
Committee (in) person and you are allowed to bring a Legal Practitioner or
fellow employee to represent you.
Please also note that should you not avail yourself to the
hearing, the hearing will proceed and judgment passed in your absence.”…,.
The respondent duly received the notification. He however
requested, in writing, that the matter be postponed to 30 December 2011.
His written request reads:
“SUBJECT: NOTICE TO
APPEAR BEFORE A DISCIPLINARY COMMITTEE
Please note that I received your communication in
connection with the above on Friday the 16th in the afternoon.
Considering that I am now staying with my family in Bulawayo and I have to
travel to Harare to organise my legal representation I propose that the hearing
date be moved to a later date, 30th of December 2011. Please note
that this date is my proposal before communicating with my legal practitioner.
I will be travelling to Harare tomorrow, Tuesday the 20th, funds
permitting considering I am not earning anything, and will meet my lawyer on
Wednesday the 21st who will then contact you on my behalf.”
The appellant acquiesced and agreed to postpone the
disciplinary hearing to 30 December 2011 to accommodate the appellant's request
for a postponement. The matter was then set down for hearing on 30 December at
the respondent's special instance and request.
Despite having indicated that his legal practitioners would
contact the appellant, no lawyer contacted it.
Instead, the respondent sent an email to the Human Resources Manager on
the eve of the date of hearing seeking a further postponement to any time after
3 January 2012. The letter reads:
“SUBJECT: NOTICE TO
APPEAR BEFORE A DISCIPLINARY COMMITTEE
My memo dated 19 December 2012 refers.
I write to inform you that I have just been informed that
my legal counsel will not be available to represent me tomorrow. I had confirmed
the date on the strength that the law firm was open only to be advised this
morning that my lawyer will not be available. I humbly request that you set a
hearing date for after the 3rd of January 2012 when everyone will be
back from the holidays, I will wait to be advised of the new hearing date from
yourselves.”
The respondent's letter was not responded to considering
that it was written at short notice on the eve of the date of hearing. Despite
notification, he however absented himself from the hearing with full knowledge
that the hearing would proceed and judgment delivered in his absence.
Considering that the notice of hearing called upon him to appear in person, the
unavailability of his lawyer on that date was no valid excuse for him not to
attend.
His default was therefore wilful and deliberate.
The Disciplinary Committee convened and deliberated over
the matter in his absence. He was found guilty of absenteeism and dismissed
from employment in absentia.
Aggrieved by the disciplinary committee's determination,
the respondent took the matter on review to the Labour Court citing procedural
irregularities. The Labour Court found in his favour. It reasoned that the
appellant's failure to postpone the matter, after being requested by email,
amounted to denying the respondent the right to be heard.
On the basis of such finding, the Labour Court set aside
the disciplinary committee's determination and ordered reinstatement without
loss of salary or benefits. The appellant was ordered to pay costs of
suit.
Dissatisfied with the judgment of the court a quo, the
respondent appealed to this court.
The crisp issue for determination is whether the respondent
was denied the right to be heard in the circumstances of this case.
The right to be heard is a fundamental cornerstone of our
law. It is a fundamental principle of the rules of natural justice forming the
backbone of a fair hearing enshrined in our Constitution as read with the
Administrative Justice Act [Chapter 10:28]. The maxim that no one shall be
condemned without being heard holds sway in our law.
The right to be heard is, however, not an absolute
immutable rule of law. It can be waived or forfeited where the beneficiary is
at fault.
It is now necessary to ventilate the law and apply it to
the undisputed established facts as narrated above.
PROFESSOR G FELTOE in his booklet, A Basic Introduction to
The Administrative Law of Zimbabwe, states…,
that the principle of natural justice can be waived when he says:
“Clearly, when a person is offered the chance to exercise
one of the rights recognized as being part of the principles of natural justice
and he declines to avail himself of this right, then he has waived his right.”
The same learned author proceeds to elaborate in his other
book, A guide to Administration and Local Government Law, 2009…, that:
“Where a party, due to his own fault, fails to attend a
hearing after being properly notified to attend, the enquiry can proceed in his
absence.”
The courts have consistently held that to be the
unquestionable position at law. See Chitizanga v Chairman of the Public Service
Commission & Anor 2000 (1) ZLR (H) 201 and Rwodzi v Chegutu Municipality HH86-03 relied upon by the appellant.
The facts before the court a quo established beyond
question that the respondent was given notification of the hearing date. He
successfully negotiated for a date convenient to himself but defaulted on the
date of hearing. His request for a further compromise by email could not
absolve him from attending the hearing unless it was granted by the employer.
By deliberately absenting himself from the hearing the respondent irrevocably
waived his right to be heard.
In light of his deliberate default from the hearing, the
Disciplinary Committee was within its rights in proceeding with the hearing in
his absence as previously advised. The respondent cannot be heard to complain
when he deliberately absented himself from the hearing with the full knowledge
that the disciplinary hearing was going to proceed in his absence. He voluntarily
elected not to attend the hearing.
He has no one to blame except himself; volenti non fit
injuria.
The learned judge in the court a quo therefore misdirected
herself and fell into gross error by wrongly apportioning blame on the
respondent when in the eyes of the law the respondent was not to blame at all.
It is accordingly ordered:
1. That the appeal be and is hereby allowed with costs.
2. That the judgment
of the Labour Court be and is hereby set aside and substituted with the
following;
“The application is dismissed with costs.”
