BHUNU
JA: 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.”
(My emphasis)
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
at p18 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, at p57 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
HH–86–03
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.”
MALABA
DCJ: I
agree
GOWORA
JA: I
agree
Baera
& Company,
the
appellant's legal practitioners
Mastsikidze
& Mucheche,
the
respondent's legal practitioners
