Employment Contract re: Termination iro Proceedings under a Code of Conduct

SC72-20 : TAYENGWA MUSKWE vs LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

This is an appeal against the decision of the Legal Practitioners' Disciplinary Tribunal handed down on 6 March 2019, ordering that the appellant's name be deleted from the register of Legal Practitioners, Notaries' Public and Conveyancers.On the day following the hearing in this matter, the court issued an order dismissing ...

This is an appeal against the decision of the Legal Practitioners' Disciplinary Tribunal handed down on 6 March 2019, ordering that the appellant's name be deleted from the register of Legal Practitioners, Notaries' Public and Conveyancers.

On the day following the hearing in this matter, the court issued an order dismissing the appeal with costs, and indicated that the reasons for the order would follow in due course. These are the reasons.

FACTUAL BACKGROUND

The respondent is a statutory body established in terms of the Legal Practitioners Act [Chapter 27:07] (the 'Act'). It is a regulator of the legal profession in Zimbabwe. The appellant is a legal practitioner duly registered with the respondent.

In 2013, the Commercial Bank of Zimbabwe Limited ('CBZ Bank') sold a certain piece of land called Stand Number 543 of the remainder of subdivision D of the Grange Township to Mr and Mrs Jambo (hereinafter referred to as 'the purchasers') for US$68,411 inclusive of value added tax (VAT). CBZ Bank appointed Messrs Muskwe and Associates ('Messrs Muskwe') as its conveyancers in the Grange Project under which Stand Number 543 fell. The appellant is the principal of Messrs Muskwe and Associates.

The purchasers secured mortgage finance from the Central Africa Building Society ('CABS Bank') in the sum of US$54,911. On 19 December 2013, through the purchasers' legal practitioners, Messrs Wintertons, the appellant received a letter of undertaking from CABS Bank for the payment of the sum of US$54,911. This amount fell short of the required total by US$9,546, which was to be paid by the purchasers. On 12 February 2014, the purchasers paid US$8,753 to CBZ Bank instead of the full balance of US$9,546. CBZ Bank sent the US$8,753 back to the purchasers, indicating it would only accept the full purchase price. After the refund, the purchasers did not transmit the money to the appellant. The latter proceeded to effect transfer and registration of the property into the names of the purchasers on 3 April 2014 under Deed of Transfer 194/2014. This was before he had received the full purchase price from CABS Bank and the purchasers. The appellant acted on the basis of the undertaking by CABS Bank to pay US$54,911 even though it fell short of the purchase price by US$9,546. On 23 April 2014 CABS Bank honoured its guarantee and paid the sum of US$54,911 into the appellant's trust account. The appellant, however, did not promptly remit the amount to CBZ Bank.

As at 9 December 2014, the purchasers had not paid the full amount required of them.

The full purchase price of US$68,411 was eventually paid into the appellant's trust account. However, it had taken the appellant two years to secure the balance from the purchasers and pay it to CBZ Bank. This process was, however, not without its own rough patches. It appears that prior to 27 January 2016 the appellant and CBZ Bank discussed the payment of the amount held in the appellant's trust account. The appellant requested a grace period of up to 31 March 2016 to effect the required payment. CBZ turned the request down. On 27 January 2016 CBZ Bank gave the appellant seven (7) days' notice to effect full payment, failing which it would register a complaint against him with the respondent. On 15 February 2016, the Bank, through its legal practitioners, wrote to the appellant indicating that consequent upon his failure to comply with the directives and the demands of the letter of 27 January 2016, it was going to register a complaint with the respondent as well as institute legal proceedings against him. Subsequently, the Bank filed a complaint with the respondent on 8 March 2016.

Before this date, the appellant made part payment of US$20,000, on 5 February 2016, leaving a balance of US$48,411. The balance was paid in instalments of US$47,000, on 29 March 2016, and US$1,411, on 22 April 2016 - both after the complaint had been registered with the respondent.

The latter then filed an application with the Legal Practitioners Disciplinary Tribunal (the Tribunal') seeking the deletion of the appellant's name from the register of legal practitioners in terms of section 28(1)(i) of the Legal Practitioners Act [Chapter 27:07]. This would, effectively, mean that the appellant would be de-registered as a legal practitioner. The respondent averred that the appellant, by his conduct, in the course of his practice as a legal practitioner, was guilty of unprofessional, dishonourable, and unworthy conduct contrary to what was expected of him in terms of the relevant provisions of the Legal Practitioners Act and related Statutory Instruments. In particular, the respondent charged that the appellant:-

“(a) Failed to pay promptly to his client, funds that had been deposited in his trust account amounting to $68,411, when the money became due and payable;

(b) Withheld payment of the funds without lawful excuse; and

(c) Failed to produce, despite demand, proof that he, at all material times, held the said funds in his trust account.”

The appellant filed a counter-statement disputing the allegations against him. However, at the hearing of the matter before the Tribunal, he pleaded guilty to all the charges against him and was duly found guilty. He thereafter proceeded to address the Tribunal in mitigation but to no avail. The Tribunal imposed the penalty of deregistration.

Aggrieved at this penalty, the appellant noted this appeal on the following grounds, that I have taken the liberty to summarise:-

1. The Disciplinary Tribunal erred and misdirected itself in taking into account, and premising its findings on irrelevant, extraneous and manufactured facts;

2. The Disciplinary Tribunal erred and misdirected itself in the outright dismissal of the appellant's mitigation, and in finding that migratory (sic) circumstances were only relevant for the purpose of making an application for re-admission to the Registrar of Legal Practitioners, Notaries Public and Conveyancers.

3. The Disciplinary Tribunal erred and misdirected itself by insisting on the ultimate penalty in the face of weighty mitigating factors pleaded by him, including his long blame-free legal career, full restitution made, and demonstrated contrition;

4. The Disciplinary Tribunal erred and misdirected itself in failing to consider the concessions made by the respondent's legal practitioner, that the facts 'squarely' before it did not warrant the ultimate penalty.

5. The Disciplinary Tribunal misdirected itself by mis-reading the facts contained in the appellant's opposing papers which clearly indicated that the full purchase was done (sic) sometime in 2015.

These grounds of appeal, in my view, raise one issue for determination, which is, whether or not the Disciplinary Tribunal erred in imposing the ultimate penalty of striking out the appellant's name from the register of Legal Practitioners, Notaries Public and Conveyancers.

The appellant avers that the Disciplinary Tribunal relied on irrelevant, extraneous and manufactured facts. It is contended, through his first ground of appeal, that the judgment of the Tribunal demonstrates that it related to another person, not the appellant. The appellant, in his heads of argument, however did not motivate this ground of appeal nor did he make any further reference to it.

Accordingly, the first ground of appeal stands abandoned and will not be considered in this judgment.

WHETHER OR NOT THE DISCIPLINARY TRIBUNAL ERRED IN IMPOSING THE ULTIMATE PENALTY OF STRIKING OUT THE APPELLANT FROM THE REGISTER OF LEGAL PRACTITIONERS

The appellant avers that the penalty imposed against him by the Tribunal, for the offences that he faced, was excessive in the circumstances. He charges that the Tribunal, in arriving at its penalty, failed to properly weigh the mitigating circumstances of the case against the aggravating factors thereof. In his view, the court over-emphasised the latter.

The respondent, to the contrary, maintains the position that the Tribunal, in imposing the penalty in question, exercised its discretion in a judicious manner and properly ordered that the appellant's name be struck out from the Register of Legal Practitioners, Notaries Public and Conveyancers.

Given that the appellant pleaded guilty to all the charges laid against him, the respondent correctly submits that the issue to be determined is whether the Tribunal was correct in finding that the appellant was not a fit and proper person to continue practising as a legal practitioner, and, therefore, imposing the penalty that it did.

The appellant effectively pleaded guilty to having mis-appropriated trust funds.

It bears mention that the amount involved, despite having ultimately been transmitted to the client, was not insignificant. A look at the relevant cases and other authorities clearly suggests that courts of law take a very serious view of the abuse of trust funds by a legal practitioner. Further, that lawyers, as a class, generally hold themselves up to very high standards of honesty, integrity, and professionalism in the discharge of their legal duties. In the case of Incorporated Law Society Transvaal v Behrman 1977 (1) SA 904 (T)…, the court unequivocally stated that a practitioner who contravened the provisions relating to his trust account was guilty of unprofessional conduct and liable to be struck off the roll or suspended from practice. The court, in Law Society, Transvaal v Matthews 1989 (4) SA 389 (T)…, expressed the same sentiments as follows:

“I deal now with the duty of an attorney in regard to trust money….,. Where trust money is paid to an attorney, it is his duty to keep it in his possession and to use it for no other purpose than that of the trust. It is inherent in such a trust that the attorney should at all times have available liquid funds in an equivalent amount. The very essence of a trust is the absence of risk. It is imperative that trust money in the possession of an attorney should be available to his client the instant it becomes payable.”…,.

Concerning the high standards that lawyers themselves have set up for themselves, this Court, in Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (SC) had this to say:

“In the first place, lawyers, as a professional class, live by their own high code of ethics and their own moral standards.

Every legal practitioner owes a duty to his colleagues to uphold those standards of the profession to which he belongs. Secondly, if legal practitioners, as a professional group, are to earn a respected position as guardians, not only of the public, but also private interest, then, every legal practitioner must live up to the principles of decency in the relationship of a trustee to the goods and monies entrusted to him by the person who has sought this protection. A legal practitioner who breaches this trust casts a shadow on the good name of the rest and also remains a danger to the unsuspecting public, unless his name is expunged from the register of legal practitioners; see, generally, in this regard, Law Society, Transvaal v Matthews 1989 (4) SA (T) at 394 B-396H.”…,.

It is therefore against the principles set out in the authorities cited above that the appellant's submissions, in impugning the 'ultimate' penalty that the Tribunal imposed on him, will be considered.

It is evident, from a reading of the judgment of the Tribunal, that it considered both the mitigating and aggravating circumstances of the case, and related to pertinent authorities, before imposing the penalty in question. The Tribunal stated as follows:-

“Turning to the sentence; in arriving at the appropriate sentence, the Tribunal takes into account the mitigating and aggravating circumstances as advanced by the respective legal practitioners.

The Tribunal takes note of the submissions by the respondent's counsel that the accused is 58 years old and was therefore 54 years old at that time of commission of the offence. He has been in practice for 33 years (29 years at the time of the commission of the offense). During this period, he has travelled the straight and narrow. He is suffering from high blood pressure and has been traumatised by the case. He paid the amount due to the complainant as far back as 2016 and there is no longer any prejudice to the complainant. The conviction should be considered as a speck on his otherwise colourless career. The respondent prayed that he be suspended from practice for a period of between 18 and 24 months wholly suspended for a period of five years on condition that he does not offend again. In addition, the Tribunal should order that the respondent does not, during the period of suspension, operate a trust account. In support of the proposed sentence, Mr Chinamora referred to The Law Society of the Cape of Good Hope v Peter 2009 (2) SA 18 (SCA), Kwazulu-Natal Law Society, Northern Provinces [2006] SCA 59 (RSA) where it was decided that the case did not warrant the ultimate sentence of de-registering the legal practitioners.

The applicant submitted, in aggravation, that the offence was a very serious one which reflects badly on the respondent's honesty and integrity and detracts from his fitness to continue practicing as a legal practitioner. The respondent's conduct has a negative impact on the integrity of the entire profession and should be visited with a befitting sanction which is de-registration. Mr Mutasa referred to the case of Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (SC) at 390 C-E where the apex court confirmed the decision of the Tribunal to deregister Mr Chizakini for misappropriating trust funds.

As rightly submitted by Mr Mutasa, the proper approach to be taken in arriving at an appropriate sentence is set out in the Chizikani case (supra).”

In weighing the aggravating against the mitigating circumstances argued for the parties, the Tribunal found (correctly, in my view), the following to be particularly damning of the appellant:

“(i) That the appellant's submissions in relation to his mature age, the long and unblemished career spanning 30 years in the practice of law, and professionalism during that period 'cut both ways if not sharper, in aggravation.'

(ii) That with such credentials, and being the principal of his law firm, the appellant should have been more exemplary in his conduct;

(iii) That his transgressions were 'compounded' by the fact that he proceeded to effect transfer of the property to the purchasers without securing the entire purchase price, a circumstance that jeopardised the interests of the seller, since the balance of US$54,911 was paid into his trust account well after the transfer;

(iv) That the appellant thereafter failed, and with no reason given, to remit this and the other amount paid by the purchasers to CBZ Bank, only doing so after some two years, and even then, after demand, and in instalments;

(v) That, as of 28 August, 2015, after the full purchase price was paid by CABS Bank and the purchasers, the respondent's account reflected a balance of only US$35,332=21, against the total required amount of US$68,411, which showed that he no longer had the amount in his account when payment was required;

(vi) That, in this respect, no explanation was advanced by the respondent as to what had happened to the client's funds;

(vii) That the respondent, despite pleading guilty before the Tribunal, had up to that point exhibited lack of contrition through his persistence in defending 'the indefensible until the very last minute' and;

(viii) That the amount of trust funds abused by the appellant was in no way insignificant.”

It is my view that there is little, if anything, to fault in the Tribunal's analysis of the evidence before it, nor in the manner that it weighed the mitigating factors pleaded by the appellant, against the aggravating circumstances of the case, vis a vis the appellant's conduct as a whole. I further find the reasoning of the Tribunal, as outlined above, to be unassailable. The reasoning is in tandem with the plethora of authorities in our jurisdiction and beyond (supra), that make it very clear that a lawyer who abuses a client's trust funds risks the ultimate penalty of being de-registered as a legal practitioner.

Having found that the respondent's submissions in mitigation 'overlooked the shadow' cast by his conduct on the good name and integrity of the rest of the legal profession, the Tribunal then considered the consequences of the penalty that it went on to impose on the appellant. It, in this respect, cited the following text from the headnote in Die Prokureursode van die O.V.S v Schoeman 1997 (4) SA 588 (O)…,:-

“The consequences of an order of striking off are serious and far reaching. But, the facts usually determine the punishment, and, even the making up of a deficiency in trust moneys, deep remorse, and ignorance concerning book-keeping and basic business principles are not themselves sufficient to avoid a striking off order in all cases. Those are, however, all factors in mitigation of punishment which should be placed in the scales.”…,.

In applying the above to the circumstances of the case before it, the court found that the absence of an explanation by the respondent as to what happened to his client's money, coupled with his lack of remorse, exhibited a high degree of dishonesty. It also found that his plea of guilty to all the charges levelled against him was a clear admission that he had mis-appropriated the client's funds. This conduct, the Tribunal opined, demonstrated that the appellant was not a fit and proper person to continue in the practice of law.

Before finally imposing the penalty, the tribunal was fully cognisant of the fact that it was not to be lightly imposed. It was guided in this respect by the following remarks by HOLMES J…, in Incorporated Law Society, Natal v Naunde 1959 (1) SA 2 (N)…,:-

“In matters of this sort, the Court ever seeks to blend a measure of mercy with the justice of punishment, and would readily agree, in the present case, to an adjournment, or to a suspension of the respondent instead of a striking off, if some basis for such a course could be found.

But, unhappily, the paramount factor in this case is the large amount of deficiency, and this factor overrides the element of restitution - even if made.

In the result, we are of the opinion that our duty, painfully though it may be, is plain and we grant the order sought by the Law Society for striking off of the respondent's name, leaving the matter of restitution, if made, to stand as a point in favour of the respondent, if and when he should apply for the re-instatement of his name on the roll.”

As already noted, the Tribunal in casu also found that the 'deficiency' was not inconsiderable. In the result, the Tribunal's view was that the conduct 'attracted' nothing short of the ultimate penalty, which it went on to impose. It also ordered the appellant to pay the respondent's expenses in connection with the proceedings.

I find that there is merit in the respondent's submission that the Tribunal judiciously exercised its discretion, after a proper consideration of the facts of the case and relevant authorities, in imposing the penalty that it did on the appellant. The court in Law Society of the Cape of Good Hope v C 1986 (1) SA 616 (A)…, reasoned that the exercise of the court's discretion in matters of this nature involves the weighing up of the conduct complained of against the conduct expected of an attorney, and, consequently, making a value judgment.

There is nothing, in my view, to suggest that the value judgment that the Tribunal made, against the facts and circumstances of the case before it, was flawed in any way.

It should be noted, in addition, that the discretion enjoyed by a court of first instance in relation to a penalty that it imposes in cases involving the misappropriation of trust funds by a legal practitioner, is not one that an Appeal Court may lightly interfere with…,.

The Appeal Court may only do so where it finds that the court of first instance arrived at its conclusion capriciously, exercised its discretion injudiciously, or relied upon a wrong principle of law; see Barros & Anor v Chimponda 1999 (1) ZLR 58 (S)…, where it was stated as follows:

“…,. If the primary court acts upon a wrong principle; if it allows extraneous or irrelevant matters to guide or affect it; if it mistakes the facts; if it does not take into account some relevant consideration, then, its determination should be reviewed and the Appellate Court may exercise its discretion in substitution, provided always (that it) has the materials for so doing.”

Taking the foregoing into account, I am satisfied that, in arriving at the penalty that it imposed, the Tribunal adopted the right approach as set out above. This was after it had properly weighed the aggravating against the mitigating circumstances of the case. The court a quo's ultimate finding, that the mitigation pleaded was outweighed by the aggravating circumstances of the case, is, in my view, not to be faulted.

DISPOSITION

In light of the foregoing, the court found that no basis had been established for interfering with the discretion exercised by the Tribunal in imposing the ultimate penalty of striking the appellant's name off the register of Legal Practitioners, Conveyancers and Notaries Public.

The appeal was accordingly devoid of merit, hence, the order made by the court dismissing the appeal with costs.

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

This is an appeal coupled with a cross-appeal against the judgment of the Labour Court.

Both appellants, in the main appeal, and the respondent in the cross appeal, Emmerson Pamire, were employed by the respondent. Following leakages of confidential information at the work place, the respondent ordered them to sign declaration of secrecy forms. They wilfully disobeyed that order and were suspended from employment pending disciplinary action.

As managerial employees, the first and second appellants had been issued with motor vehicles by their employer. Upon suspension, they were ordered to return the motor vehicles. They both wilfully refused to return the motor vehicles as ordered by the employer.

All the three (3) employees were eventually charged with wilful disobedience to lawful orders before the Disciplinary Authority. They were all found guilty as charged and dismissed from employment on 28 November 2013.

Disgruntled by their dismissal from employment, they approached the Labour Officer, who, in turn, referred the dispute for arbitration in terms of section 93 of the Labour Act [Chapter 28:01].

The terms of reference before the arbitrator, branded, “CLAIMANTS' ISSUES FOR DETERMINATION” were as follows:

“Whether or not the dismissal of the three claimants was fair and lawful?

1. Whether or not the employer was entitled, at law, to institute fresh disciplinary proceedings without complying with the Supreme Court order of 16 July 2013 ordering them to reinstate the claimants without loss of salary and benefits?

2. Whether or not it was lawful for the employer to charge first and third claimants with wilful disobedience of lawful orders arising out of their failure to handover vehicles when the matter of ownership and possession of the vehicles was sub judice (the subject of a legal dispute) which is still pending in the High court in case numbers HC6419/2010, HC6420/10, HC4233/10 and HC4258/2010 which cases were all consolidated under case number HC4258/2010 for purposes of trial?

3. Whether the labour dispute leading to the disciplinary proceedings instituted by the respondent against claimants on 17 July 2013 had prescribed in terms of section 94 of the Labour Act Chapter 28:01 and whether the respondent had a right to charge the claimants for misconduct over the events that allegedly occurred on August 2009?”

The arbitrator, on the basis of the terms of reference placed before her, found that the employer's orders were lawful as they were meant to advance the employer's business. She accordingly upheld the claimants' conviction. She, however, overturned the penalty of dismissal and substituted it with a lesser penalty of final written warning.

The award reads:

“AWARD

1. The Respondent, Zimbabwe Manpower Development Fund (ZIMDEF), be and is hereby ordered to substitute the dismissal penalty with a final written warning valid for twelve (12) months.

2. Respondent be and is hereby ordered to reinstate the claimants without loss of pay and benefits from the date of dismissal.

3. If reinstatement is no longer tenable parties may negotiate for damages in lieu of reinstatement failure of which either party my approach the arbitrating authority for quantification.”

Dissatisfied with the above order reinstating the three (3) respondents, the employer appealed to the Labour Court. The respondents did not, however, cross-appeal against the arbitrator's award upholding the Disciplinary Authority's verdict convicting them of dismissible acts of misconduct as charged.

The second respondent, in the court a quo, Emmerson Pamire, was, however, partially successful in that Court. The court a quo set aside the arbitrator's award and upheld the decision of the Disciplinary Authority dismissing the first and third respondents from employment as prayed for by the employer.

The appeal against the reinstatement of the second respondent, in the court a quo, was, however, unsuccessful in that the court a quo upheld the arbitrator's order of reinstatement. The court a quo's order reads:

“WHEREFORE IT IS ORDERED THAT:

1. The appeal be and is hereby allowed.

2. The arbitration award issued by arbitrator C K Kadenga dated 8 December 2015 is set aside.

3. The dismissal from employment of 1st and 3rd respondents (Tendayi Tamanikwa and Frank Tinarwo) by appellant is upheld.

4(a) The appellant shall reinstate the 2nd respondent Emmerson (Emmerson Pamire) without loss of salary and benefits; or

(b) If reinstatement is no longer tenable, appellant shall pay 2nd respondent damages in such (sic) either agreed by the parties or assessed by this court.”

Unhappy with the Court a quo's judgment, ordering their dismissal from employment, the first and second appellants, in the main appeal, Tendayi Tamanikwa and Frank Tinarwo, appealed against part of the court a quo's judgment upholding their dismissal from employment....,.

Turning to the cross appeal, the appellant is appealing against the reinstatement of the respondent, Emmerson Pamire, to his former employment.

The main appeal was dismissed with costs at the legal practitioner client scale leaving the concerned parties to argue the cross-appeal.

I now proceed to consider the cross-appeal.

The facts giving rise to the cross appeal are by and large common cause. The undisputed facts are that the disciplinary authority convicted the respondent of wilful disobedience to a lawful order to sign declaration of secrecy forms and ordered his dismissal from employment. He appealed to the arbitrator who upheld the conviction but reduced the penalty of dismissal to one of final written warning. The arbitrator then ordered his reinstatement without any loss of salary or benefits. In the alternative, the court a quo ordered damages to be assessed in the event that reinstatement was no longer possible.

The appellant appealed to the court a quo against the order to reinstate the respondent. The respondent did not, however, cross-appeal against the arbitrator's verdict upholding the disciplinary authority's verdict of guilty.

The respondent's failure to cross appeal against conviction can only mean that he accepted his guilt as charged. All he was challenging in the court a quo was the severity of punishment and not his conviction. His plea in the court a quo was one for mercy rather than a denial of misconduct as alleged.

As none of the parties questioned the correctness of the guilty verdict, and, in the absence of a cross-appeal, the appeal in the court a quo fell to be determined on the basis of the issues raised by the appellant in its grounds of appeal which were laid down before the court as follows:

“1. The arbitrator erred, on a question of law, by substituting the employer's discretion to impose a dismissal penalty.

2. The arbitrator erred on a question of law by not realising that the respondent(s') misconduct went to the root of their employment contract(s) thereby justifying a dismissal penalty.

3. The arbitrator grossly erred and misdirected himself that she had no jurisdiction on the second count against the respondents as per section 4(2)b of the Arbitration Act.

4. The arbitrator grossly erred and misdirected herself at law by failing to find that the appeal to the internal appeals officer was filed out of time.”

From the above grounds of appeal it is self-evident that the question of liability was not one of the issues to be determined by the court a quo as that issue had already been conclusively determined by the lower adjudicating authorities. It was therefore remiss of the court a quo to determine an issue that was not before it when it held at page 3 paragraph 5 of its cyclostyled judgment that:

“5. All respondents were not guilty of the charge related to the secrecy document.”

By framing and determining its own issue not raised by the parties, the court a quo erred and strayed into the wilderness of illegality.

The respondent's failure to challenge the question of liability amounts to an admission of guilt.

It was therefore grossly irrational for the court a quo to find the respondent not guilty as charged in circumstances where he was virtually pleading guilty to the charge.

It being common cause that the respondent committed a dismissible act of misconduct, it was within the employer's discretion to terminate his employment contract.

Following the exercise of that discretion, there was no proper or compelling reason advanced as to why the court a quo, or anyone else for that matter, should interfere with the exercise of that discretion.

In the absence of any cogent reason for interfering with the employer's discretion, the respondent's fate was sealed.

The words of ZIYAMBI JA, in Mashonaland Turf Club v Mutangadura 2012 (1) ZLR 183 (S), are worth recounting where she says:

“In the exercise of their powers, in terms of section 12B(4) of the Labour Act, the Labour Court and Arbitrators must be reminded that the section does not confer upon them an unbounded power to alter a penalty of dismissal imposed by an employer just because they disagree with it. In the absence of misdirection or unreasonableness, on the part of the employer, in arriving at the decision to dismiss an employee, an Appeal Court will generally not interfere with the exercise of the employer's discretion to dismiss an employee found guilty of misconduct which goes to the root of the contract of employment.”

It is an implied term of every employee's contract of employment not to make unauthorised disclosure of his employer's secrets. The refusal by the respondent, in the cross-appeal, to sign the declaration of secrecy was, therefore, a fundamental breach of his implied term of employment in this respect.

An employer cannot be blamed for offloading an employee who refuses to be bound not to disclose his trade secrets. The need for confidentiality in an employer/employee relationship cannot be over-emphasized. For that reason, it cannot be said, by any stretch of the imagination, that the appellant in the cross-appeal acted irrationally or unreasonably when it terminated the contract for wilful refusal to sign the declaration of secrecy. No sane employer would be comfortable employing an employee whom he cannot trust to keep his secrets.

In the result it is ordered that:

1. The cross appeal is allowed with costs.

2. The judgment of the court a quo is partially quashed to the extent that it set aside the respondent's conviction on the charge of wilful disobedience of a lawful order, and, consequently, paragraph (4) of the operative part of that judgment is set aside and substituted as follows:-

“The appeal is allowed with costs, the arbitral award is set aside in respect of the penalty of a final written warning imposed upon the respondents, and, consequently, the respondents' dismissal from employment is confirmed.”

SC133-21 : CIMAS MEDICAL AID SOCIETY vs LINDIWE MHUNDURU
Ruled By: HLATSHWAYO JA, BHUNU JA and BERE JA

This is an appeal against the decision of the Labour Court where it ordered that the appellant reinstate the respondent into employment without loss of salary and benefits or be paid damages in lieu of reinstatement if reinstatement was no longer possible.FACTUAL BACKGROUNDThe respondent was employed by the appellant as ...

FACTUAL BACKGROUND

The respondent was employed by the appellant as a Marketing Manager. Sometime in 2012, the appellant resolved to renovate its front office. The respondent, being a senior employee, was tasked to oversee the implementation of the aforesaid resolution.

Efforts to find suitable vendors to do the renovations failed, and, as a result, it was suggested that the appellant engage the services of the respondent's advertising agency, a company called DDH & M Advertising (Private) Limited. It was agreed that the company would be engaged to select reputable interior architects and to manage the project implementation on behalf of the appellant.

Sometime in November 2012, the advertising agency wrote to the respondent advising her of the outcome of its search for suitable contractors.

The agency brought forward three contractors:

The first contractor, Thuthukile International (Private) Limited was keen to supply but it later pulled out due to pressures from other clients. The second contractor was Kaschula and Co. It had certain conditions which the advertising agency deemed not to have been standard procedures. The last company, Archi Craft Architect (Private) Limited, was determined, by the advertising agency, to have a combination of both the mechanical and technical know-how to do the job.

As a result, acting upon the recommendation of the advertising agent, the respondent, on 6 November 2012, authored an internal memorandum in terms of which permission was sought to award Archi Craft Architect (Private) Limited the contract to renovate the offices.

At a meeting held on 28 November 2012, with the respondent's superiors, including the finance executive, it was decided, that, the contract would be awarded to Archi Craft Architect (Private) Limited.

This decision was made with the respondent and her superiors being fully aware of the company's written policy which prohibited the engagement of a service provider without the involvement of the Purchasing Committee.

As the respondent and her superiors had failed to follow company procedure, they were subsequently charged in terms of the appellant's Code of Conduct, under Group IV offences; namely, gross negligence or incompetence in the performance of their duties which damaged the employer's interests.

The appellant's disciplinary committee found the respondent guilty of the charges and she was subsequently dismissed. She appealed to the Appeals Committee which appeal was also dismissed.

Aggrieved by the decision of the Appeals Committee, the respondent appealed to the Labour Court seeking an order for the setting aside of the decision of the Appeals Committee.

The court a quo held, that, it was unproven that the respondent had flouted the appellant's procurement policy. It further determined, that, all she did was to merely advise that a certain vendor be contracted. It was further held, that, in the circumstances, the respondent had not advised anyone to by-pass the Purchasing Committee.

In the result, the court a quo upheld the appeal and ordered that the respondent be reinstated or be paid damages in lieu of reinstatement if reinstatement was no longer possible.

Aggrieved by the decision of the court a quo, the appellant has lodged the present appeal on the following grounds:

(a) The court a quo grossly erred and misdirected itself on the facts when it failed to find that the respondent had participated in the process that culminated in the wrongful engagement of Archi Craft Architect (Private) Limited to carry out renovations at the appellant's offices. Such a misdirection was so gross as to amount to a misdirection at law.

(b) The court a quo erred at fact, in that, on one hand, it noted that in terms of the appellant's procurement policy, all tenders had to be submitted to the Procurement Committee for final approval, and, in the other, failed to find that the respondent had flouted this procedure, when all facts pointed to this. Such misdirection was so gross as to amount to a misdirection at law.

(c) The court a quo erred in law when it failed to find that the conduct of the respondent in that regard constituted gross negligence on her part.

(d) The court a quo seriously misdirected itself when it proceeded to determine this matter on the basis that the respondent had been accused of contracting Archi Craft Architects (Private) Limited, when, in fact, the charge was that she had caused and/or facilitated the aforesaid engagement such gross misdirection by the court a quo amounts to a misdirection at law.

(e) The court a quo erred when it failed to find that the respondent, through her memorandum dated 6 November 2012, led to the wrongful engagement of Archi Craft Architect (Private) Limited.

At the hearing of the appeal, the appellant submitted, that, the respondent failed to follow proper channels as required by the company's policy. The appellant further argued, that, instead of securing three quotations and then submitting them to the company's Purchasing Committee, the respondent secured two quotations only and submitted them to her immediate supervisor. It was further argued by the appellant, that, the court a quo erred in overturning the decision of the disciplinary committee which was based on factual findings yet the court a quo had not found any gross misdirection on the part of the disciplinary hearing.

Per contra, counsel for the respondent submitted, that, the respondent, in the discharge of its duties, had merely recommended the engagement of Archi Craft Architect (Private) Limited. It was submitted, that, the respondent, in recommending the vendor to her supervisor, was not grossly negligent nor was she incompetent in the execution of her duties.

After hearing submissions by both parties, it seems to me that there are only two issues for determination, and these are they:

1. Whether the court a quo erred in not finding that the respondent had flouted the company procedure; and

2. Whether the court a quo erred in not finding that the conduct of the respondent constituted gross negligence.

I shall deal with the issues in turn.

Whether the court a quo erred in not finding that the respondent had flouted the company procedure

The appellant, in its submissions, argued, that, the respondent acted unlawfully by setting in motion an unprocedural process that led to the awarding of the contract to Archi Craft Architect (Private) Limited. It further submitted, that, the respondent made the request to recommend the awarding of the contract to Archi Craft Architect (Private) Limited with the full knowledge that the appellant's Purchasing Committee had not presided over the selection process. In the circumstances, the appellant submits, that, the court a quo erred in not finding that the respondent had flouted its company procedure.

On the other hand, the respondent denied flouting any procedure.

She insisted, that, it was not her duty to select the ultimate vendor. She further submitted, that, her role was to simply request, which request could be granted or denied, and that whoever contracted the vendor is the one who bypassed the company's Purchasing Committee.

In determining the issue before it, the court a quo was alive to the fact, that, the awarding of the contract to Archi Craft Architect (Private) Limited violated the appellant's written policy. Whilst recognizing this procedural irregularity, the court a quo however did not put the blame on the respondent. In supporting the respondent's case, the court a quo stated:

“…, it was not clear what her duties were in connection with the procurement procedures…, it is not clear who specifically contracted the vendor, but, what is apparent is that it was not the appellant (now respondent)…, whoever contracted the vendor is the one who by-passed the committee and was thus answerable for flouting policy.”

From the record of proceedings, what is apparent is, that, on 5 November 2012, the respondent received a letter from the advertising agent to the effect that they had found suitable contractors, and, from the contractors found, they recommended Archi Craft Architect (Private) Limited for the job. On 6 November 2012, the respondent, acting on the letter by the advertising agent, wrote an internal memorandum that stated as follows:

“We are seeking the permission to contract Archi Craft Architect (Private) Limited to carry out the Front Office renovations based on the submissions by our agency, DDH& M, who we had contracted to source for architectural and design firms bids to renovate the offices.”

The respondent, in the memorandum, sought “permission to contract” Archi Craft Architect (Private) Limited.

The respondent, at that stage, and with her position as one of the senior employees implementing the project, ought to have known, that, as they now had a list of prospective contractors, the list was supposed to have gone through to the Purchasing Committee.

That did not happen.

The respondent sought permission to contract, and permission was granted.

The respondent's submission, that, whoever awarded the contract was the one who flouted policy lacks merit.

What her superiors did was to concur with the wrongful path that had been proposed by the respondent. It follows, that, the procedure taken by the respondent, and the subsequent concurrence with the procedure, flouted company policy.

Hypothetically, if the renovations had been done in line with company policy, and credit was being given, surely the respondent would not have excused herself and say that I was not involved in the final selection so do not give me credit.

The court a quo, in the circumstance, erred in not finding that the respondent had flouted company policy.

Whether the court a quo erred in not finding the conduct of the respondent constituted gross negligence

The argument proffered by the appellant was that, at all times, the respondent was aware of the fact, that, the appellant had a Purchasing Committee whose mandate was to preside over the selection of service providers.

Counsel for the appellant submitted, that, the respondent set in motion the process that led to the unprocedural engagement of Archi Craft Architect (Private) Limited and that the manner in which the respondent handled the affairs of the appellant shows negligence of a gross nature.

On the other hand, the respondent submitted, that, she had no final say in the awarding of the tenders and she did not prevent anyone from complying with the procurement requirements. She argued that the charge of “gross negligence of duty” was not proved.

To determine if the court a quo erred in not finding the conduct of the respondent grossly negligent, it is important to establish what the term gross negligence entails. It was held, in Standard Chartered Bank of Zimbabwe Ltd v Chipininga 2004 (2) ZLR 94 (S)…, that:

“It has been pointed out that 'gross negligence' is a nebulous concept, the meaning of which depends on the context in which it is used and it is a futile exercise to seek to provide a definition which would be applicable to all circumstances: see Govt of Republic of SA (Dept of Ind.) v Fibre Spinners and Weavers (Pty) Ltd 1977 (2) SA 324 (D) at 335E; Bickle v Minister of Law and Order 1980 (1) ZLR 36 (H) at 41A.

It has been described as 'ordinary negligence of an aggravated form which falls short of willfulness' (Bickle's case supra); 'very great negligence or want of even scant care or a failure to exercise even that care which a careless person would use:'see PROSSER 'Law of Torts' 4ed at 183.”

The definition of the concept, which has, for practical purposes, been quoted with approval in many cases, was stated in City of Harare v Chikwanda SC70-20 wherein BHUNU JA quoted the remarks of MURRAY J in Rosenthal v Marks 1944 TPD 172…, where he said:

“Gross negligence (culpa lata, crassa) connotes recklessness an entire failure to give consideration to the consequences of his actions, a total disregard of duty: see per WESSELS J in Adlington's case supra at p973 and Cordey v Cardiff ke Co. (88LT 192).”…,.

It is apparent, that, the question whether the respondent ought to have been found guilty of gross negligence of duty can only be determined by reference to evidence that proved, on a balance of probability, that she totally disregarded her duties.

It is common cause, that, the appellant had a written down policy which provided for the procedures to be followed in certain circumstances. It is also common cause that the respondent had a Procurement Committee which had a mandate to preside over the selection of suppliers as and when needed.

In the circumstances, as there were renovations to be done, the Procurement Committee was crucial in the eventual selection of the prospective vendor. All bids that were to be considered would have to pass through the Procurement Committee.

This was a standard procedure that was common to all employees - especially the respondent as the appellant's Marketing Manager.

Her position in the company placed her in a position that she knew, or she ought to have known, about that written policy.

It is not denied that the respondent wrote to her superior recommending the contracting of Archi Craft Architect (Private) Limited without first going through the Procurement Committee.

In her defence, she submitted, that, it was not her duty to select the ultimate supplier, and that all she did was merely recommend which supplier they could pick.

I find no merit in that defence.

As the Marketing Manager of the company, and as one of the senior employees who were seized with the duty of overseeing the implementation of the renovations at the appellant's premises, she had a duty to ensure that the renovations were done through lawful procedures and to ensure that the policy of the appellant is implemented properly.

The conduct of the respondent, as one of the employees who oversaw the project, in recommending the awarding of the contract to Archi Craft Architect (Private) Limited, amounted to gross negligence.

The fact that she initiated the process that led to the unprocedural awarding of the contract shows that she neglected her duty to follow proper procedure.

I associate myself with the remarks in Rosenthal v Marks 1944 TPD 172, that, her actions were grossly negligent in that she totally disregarded the consequences of her actions which amounts to a disregard of duty.

The court a quo, after considering all the evidence, should have found the respondent's conduct grossly negligent. Accordingly, this ground of appeal has merit and it is upheld.

DISPOSITION

The respondent, having been one of the senior employees and managers responsible for the implementation of the renovation project at the appellant's offices, had the duty to make sure, that, at all times, the interests of her employer were looked after.

It is common cause, that, she authored the internal memorandum that culminated in the awarding of the contract to Archi Craft Architect (Private) Limited in a way that was contrary to the appellant's company written policy. As a result, the respondent was actively involved in the flouting of the company's procedure. Her conduct, of not following company policy, was grossly negligent as she disregarded the consequences of her actions.

In the result, the appeal is allowed with costs and the decision of the court a quo is set aside and substituted with the following:

'The Appeal is hereby dismissed with costs.'

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

The employer-employee relationship is sacrosanct and based on trust. The employee is therefore obliged to act in good faith and in a manner that is consistent with the interests of his or her employer.

CC18-17 : BLESSING MUSHAPAIDZE vs ST ANNE'S HOSPITAL and CAPS HOLDING LTD and NATIONAL EMPLOYMENT COUNCIL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

The applicant approached this Court in terms of section 85(1)(a) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (“the Constitution”), alleging that the respondents infringed the following of her fundamental rights:

(i) The right to dignity;

(ii) The right not to be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment; and

(iii) The right not to have a health condition disclosed.

The allegation was that these rights, which are enshrined in the Constitution, were violated when the first respondent subjected the applicant to disciplinary proceedings for alleged misconduct arising from her alleged failure to disclose her HIV status in a form she completed when applying for employment with the first respondent.

The allegation was that the disciplinary proceedings were based on a failure to complete a form that compelled her to disclose the condition of her health.

She alleged, that, by subjecting her to the disciplinary proceedings by which she was found guilty of the misconduct charged, resulting in her dismissal from employment, the first respondent infringed her rights.

The applicant seeks an order in the following terms:

“(a) The first respondent's conduct, in requiring that the applicant discloses her health condition, is declared unconstitutional and in breach of sections 57(e); 51 and 53 of the Constitution.

(b) The disciplinary proceedings conducted by the first respondent relating to the applicant's failure to disclose her health condition are accordingly set aside. Any appeal in relation to the said disciplinary proceedings is permanently stayed.

(c) Section 8 of Schedule 4 of the Employment Code of Conduct for the NEC for Welfare and Educational Institutions, which penalises a failure by an employee to disclose their medical status when undergoing a medical examination at the instance of the employer, is hereby declared unconstitutional.

(d) The first respondent is hereby ordered to reinstate the applicant to the post of Ward Manager, or, alternatively, to pay her damages as quantified by the Labour Court for unfair dismissal.

(e) The first respondent and the second respondent are hereby ordered to pay the applicant $30,000 as constitutional damages to compensate her for the violation of her privacy and dignity and for causing the applicant to suffer inhuman and degrading treatment.

(f) The first respondent is hereby ordered to pay costs of suit on a legal practitioner and client scale.”

The facts which gave rise to the application are these:

The applicant was diagnosed with Human Immune-Deficiency Virus (HIV) in 2003 while she was employed at the Avenues Clinic as a nurse. She later resigned in 2006 when her health condition deteriorated. Her health condition later improved, and, in 2010, she applied for a job with the first respondent. She was interviewed for a post of a General Nurse and successfully passed the interview.

The applicant was required to complete a medical examination form before commencing employment.

The medical examination form required her to indicate whether she had suffered from any serious illness or injury. She indicated that she had not suffered from any serious illness. She also failed to disclose that she had once retired from her previous employment on medical grounds.

The applicant proceeded to enter into a contract of employment with the first respondent as a General Nurse.

The applicant was again interviewed in March 2011. She succeeded and was appointed to the post of Ward Manager.

In September 2012, the applicant suffered a stroke and went on sick leave from 21 September 2012. When the applicant resumed work, on 2 December 2012, she was referred to one Dr Ngwende, who advised the first respondent's Human Resources Manager that she had made some progress and could resume her duties. The doctor recommended that the applicant should perform light duties.

The first respondent was not pleased with the health condition of the applicant and served her with an investigation notice, in which it alleged that the applicant had given false information when she completed the medical examination form.

The applicant was suspended from employment on allegations that she contravened Schedule 4(8) of the Employment Code of Conduct for the National Employment Council for the Welfare and Educational Institutions (“the Code of Conduct”) which provides, that, supplying false information or knowingly omitting relevant information in an application for employment, or when undergoing a medical examination, is an act of misconduct.

The applicant was charged with that misconduct, it being alleged, that, she had supplied false information or knowingly omitted relevant information when she completed the medical examination form, in that she said she had not suffered from any serious illness when she knew that the statement was false.

A disciplinary hearing was conducted and the applicant was found guilty as charged. The disciplinary committee found that the applicant committed an act of dishonesty, which is a serious offence as the relationship between an employer and employee is based on honesty and trust.

A penalty of dismissal was imposed.

Aggrieved by the decision of the disciplinary committee, the applicant appealed to the third respondent's Appeals Committee (“the NEC Appeals Committee”). The appeal was allowed. The decision of the first respondent's disciplinary hearing committee was set aside and substituted with an order that the applicant be reinstated to her former position without loss of salary and benefits from the date of dismissal.

The first respondent noted an appeal against the decision of the NEC Appeals Committee to the Labour Court. At the same time, the applicant brought an application for review of the proceedings of the first respondent's disciplinary committee before the Labour Court.

Whilst both matters were pending before the Labour Court, the applicant made this application in terms of section 85(1) of the Constitution.

The applicant alleges, that, the respondents have breached her right to privacy as enshrined in section 57(e) of the Constitution, which provides that:

“Every person has the right to privacy, which includes the right not to have —

(a)-(d)…,.;

(e) Their health condition disclosed.”

The applicant further alleges, that, her right to dignity (section 51 of the Constitution) and her right to protection against inhuman and degrading treatment (section 53 of the Constitution) were violated by the first respondent's conduct in conducting the disciplinary proceedings.

It was the applicant's submission, that, the disciplinary proceedings were designed to compel her to disclose her medical condition, in particular her HIV status.

A preliminary point was raised as to whether the application was properly before the Court, considering that there was a pending appeal and an application for review before the Labour Court.

Counsel for the applicant submitted that what was in the Labour Court was an appeal against the decision of the third respondent. She also submitted that there was nothing constitutional pending before the Labour Court. As such, there is no rule which prevented the applicant from approaching the Constitutional Court in terms of section 85(1)(a) of the Constitution. She went further and argued, that, the Labour Court has no power to issue a declaratur.

It was on that basis that the applicant argued that the matter was properly before the Court.

Counsel for the first and second respondents submitted, that, the application was an abuse of court process as there was a pending appeal before the Labour Court.

Counsel for the third respondent made submissions to the same effect.

He further submitted, that, the ground on which the application was brought was that the first respondent compelled the applicant to disclose her health condition. The matter before the Labour Court involved the determination of the question whether the applicant was compelled to disclose her health condition. The ground on which the application was brought to this Court, alleging the violation of the fundamental rights referred to in the founding affidavit, is the same as the ground on which the appeal before the Labour Court is to be determined.

In determining the question whether the first respondent acted lawfully when it charged, convicted, and dismissed the applicant for giving false information or knowingly omitting relevant information when she completed the medical examination form for employment purposes, the Labour Court would ipso facto decide the question whether the applicant's rights were infringed.

It is important to note, that, the purpose of the disciplinary proceedings was not to compel the applicant to reveal her health condition. The purpose was to determine the question whether she had given false information when she answered in the negative the question whether she had suffered from any serious illness.

If she was honest, she needed only to answer the question in the affirmative.

SC44-20 : TAFADZWA SAKAROMBE N.O. and WONDER SIMUKA vs MONTANA CARSWELL MEATS (PVT) LTD
Ruled By: GOWORA JA, PATEL JA and BERE JA

Section 101 of the Labour Act [Chapter 28:01], in particular subsections (5) and (6) thereof provides:“(5) Notwithstanding this Part, but subject to subs (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor ...

Section 101 of the Labour Act [Chapter 28:01], in particular subsections (5) and (6) thereof provides:

“(5) Notwithstanding this Part, but subject to subs (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subs (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”...,.

Subsections (5) and (6) have been considered by this Court in order to ascertain what it is that a labour officer is empowered to do or determine upon reference of a matter to such labour officer in terms of section 101(5) or (6) of the Labour Act.

Section 101(5), under the former Labour Relations Act, was considered by this Court in Mwenye v Lonrho Zimbabwe 1999 (2) 429 (S). At 433C-434B, GUBBAY CJ remarked as follows:

“Section 93(1) vests in a labour relations officer a general jurisdiction to deal with any dispute, either on his own initiative or on reference to him by one of the parties. Section 101 of the Act (then as s117A) was introduced on January 1, 1993 by the Labour Relations Amendment Act 12 of 1992. It then became possible for an employment code of conduct, binding in respect of a particular industry, undertaking, or workplace, to be registered; provided it contained the matters specified in s101(3) of the Act….,.

Against this background, it does not seem to me that the legislative objective introducing the new procedure was to relieve labour relations officers of the burden of determining disputes. It was rather to return to the employee and employer a greater degree of autonomy with regard to the determination of their disputes than previously enjoyed.

Section 101(5) of the Act is, in effect, an exception to section 93.

It is a provision designed for the benefit of the parties. As long as the dispute or matter is: (a) the subject of proceedings under a code; or (b) liable to be the subject of proceedings under a code; no labour relations officer may intervene.

His power to determine or otherwise dispose of the matter under section 101(6) is placed in abeyance for a period of thirty days. This is to afford the parties, should one of them so wish, the opportunity to utilize the internal mechanisms specified in the code.

Consequently, if either party were to refer the matter to a labour relations officer before the expiry of the thirty day period, the other could raise section 101(5) as a defence.

On the other hand, where the parties are ad idem that their dispute is incapable of resolution under the code, or both deem it more advantageous to have it determined by a labour relations officer, then, the dispute or matter is no longer 'liable' to be the subject of proceedings under the code. It may be referred immediately to a labour relations officer.”

The import of this authority is to illustrate the ambit of the jurisdiction of the labour officer under section 93 of the Labour Act.

In other words, does a labour officer have carte blanche to deal with the matter as he sees fit or is his jurisdiction specific?

The import of these provisions was considered by this Court in Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170. At p172F-173D, this Court said:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(a) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;

(b) The matter has not been determined within thirty days of the date of notification; and

(c) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).

In this case, there were delays in the determination of the matter due to a number of postponements at the request of the appellant. At one meeting, the appellant and his legal practitioner attended without submitting the appellant's response to the allegations. At yet another meeting, the appellant and his legal practitioner walked out before the meeting was closed, as the legal practitioner said he wanted to catch his flight and had other business to do in Harare.

When the appellant and his legal practitioner raised the issue of delay, the chairperson did point out to them that it was actually their fault, as they were responsible for the delay.

Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined.

The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”…,.

And later, at p173H-174A, the court put the issue beyond any doubt and stated:

“The section cannot be read as providing for a second determination over and above the one already made by a disciplinary committee. Once there was a determination, the correct procedure was to appeal to the company's management as provided in the code of conduct.”…,.

And later still at p175B-C:

“In this case, by the time the matter was entertained by the labour relations officer, two separate provisions had ousted his jurisdiction. They were, firstly, the fact that a determination had been made, and, secondly, the dispute had prescribed in terms of section 94(1)(b), in that the allegations of unfair labour practice were raised at meetings held with the disciplinary committee in November 1997 but the labour relations officer only entertained the complaint on 6 August 1999, a period of about eighteen months, and well beyond the period of one hundred and eighty days provided in section 94(1)(b).”

SC86-23 : GUTU RURAL DISTRICT COUNCIL vs JASON MUGAYO
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

This is an appeal against the whole judgment of the Labour Court handed down on 11 November 2022 wherein it dismissed the appellant's appeal against a decision of a Designated Agent of the National Employment Council for Rural District Councils.FACTUAL BACKGROUNDThe respondent was employed by the appellant as a Housing ...

FACTUAL BACKGROUND

The respondent was employed by the appellant as a Housing Officer. He was indicted for a disciplinary hearing on 11 November 2017 before the appellant's Disciplinary Committee. He was charged with 'committing any act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment' in terms of clause 8(d) of Statutory Instrument 87/2017; specifically, that, he unilaterally and unlawfully exempted some council tenants from paying rentals which resulted in the appellant losing revenue.

The Disciplinary Committee found in favour of the employer and dismissed the respondent.

He then appealed the decision to the Internal Appeals Committee which upheld the decision of the Disciplinary Committee.

Aggrieved by the decision, the respondent again appealed to the National Employment Council Exemptions Committee (“the Exemptions Committee”) which set aside the decision of the Internal Appeals Committee and referred the matter back to the Disciplinary Committee, for a hearing de novo, on the basis that the Disciplinary Committee was not properly constituted when it presided over the matter.

The matter was heard again by the Disciplinary Committee and it reached the same verdict and penalty. The respondent then appealed to the Internal Appeals Committee which, again, upheld the dismissal.

On 13 March 2018, he further appealed the dismissal to the National Employment Council Exemptions Committee (the Exemptions Committee) which heard the matter on 14 March 2018.

On the basis that the Exemptions Committee failed to conclude the matter within the time stipulated in section 14 of SI 87/17, and on 26 November 2018, the respondent wrote to the Designated Agent advising him of that fact.

Consequent to the respondent writing to the Designated Agent complaining about the failure by the National Employment Council Exemptions Committee to determine the matter within 30 days, the Exemptions Committee handed down reasons for its determination on 4 December 2018.

On 11 March 2021, the respondent filed an appeal with the Labour Court under cover of case number LC/H/57/19 seeking a referral of his appeal in accordance with clause 14(c) of SI 78/17.

He was seeking that the appeal be disposed of by the Designated Agent due to non-observance of the timelines and the lack of jurisdiction of the National Employment Council Exemptions Committee (the Exemptions Committee).

The grounds of appeal were couched as follows:

1. The Exemptions Committee erred at law in determining a matter without jurisdiction outside the prescribed thirty (30) working days and after the matter had been referred to the Designated Agent for disposal.

2. The Exemptions Committee erred at law in making a determination without providing reasons for such determination.

The respondent sought the following relief:

'(a) That the appeal succeeds with costs.

(b) That the decision of the Exemptions Committee be set aside.

(c) That the matter shall be disposed of by the Designated Agent in accordance with section 93 of the Labour Act in terms of the referral made by the appellant on 26 November 2018.'

On 22 May 2020, the Labour Court allowed the appeal under case number LC/H/57/19. It granted the following order:

“(a) That the instant appeal succeeds with costs.

(b) That the decision of the Exemptions Officer be set aside.

(c) That the matter be disposed of by the Designated Agent in accordance with section 93 of the Labour Act in terms of the referral made by the respondent.”

The respondent then approached the Designated Agent on the basis of this order of the Labour Court.

On 21 June 2021, the parties attended proceedings before the Designated Agent who advised the parties that he would proceed in terms of section 63(3a) of the Labour Act (the Act).

The parties were invited to file written submissions and the Designated Agent proceeded to pronounce on the matter on 19 October 2021.

In his determination, he made a finding that he lacked the requisite jurisdiction to preside over the matter as it raised review grounds. He, however, went on to deal with the substantive aspects of the matter and ultimately gave an order reinstating the respondent.

Disgruntled by the determination of the Designated Agent, the appellant appealed to the court a quo on 17 November 2021. The court found that the Designated Agent properly dealt with the matter.

It found that the issue of grading was before the Designated Agent and that he properly disposed of it. In addition, it found that the reinstatement of the respondent was proper as reinstatement could be ordered where the merits of the matter have not been entertained. In the result, the court a quo dismissed the appeal.

It is against this judgment that the present appeal was noted.

SUBMISSIONS ON APPEAL

At the hearing of the appeal, the court asked counsel for the appellant to address the question of whether section 63(3a) as read with section 93 of the Labour Act confer appellate jurisdiction on a Designated Agent in view of the referral of an appeal to him by the Labour Court.

Counsel for the appellant submitted, that, the matter was referred for hearing before the Designated Agent as an appeal. He contended that the National Employment Council Exemptions Committee (the Exemption Committee) was seized with an appeal that it failed to conclude within the prescribed 30 days hence the appeal was then placed before the Designated Agent.

He submitted that section 63(3a) of the Labour Act does not confer appellate jurisdiction on Designated Agents, but, that a provision in SI 87/17 allows for matters not determined within the stipulated timeframe to be referred to a Designated Agent.

He asserted that Designated Agents have no such powers to hear appeals.

It was his submission that the Labour Court ought to have presided over the matter instead of deferring it to the Designated Agent. He relied on section 14 of SI 87/17 which provides that an appeal against the determination of the National Employment Council Exemptions Committee (the Exemptions Committee) lies with the Labour Court.

Counsel submitted that if a matter is not concluded within 30 days, it is then supposed to be referred to the Designated Agent who will dispose of it in accordance with section 93 of the Labour Act.

On the merits, counsel submitted that the court a quo erred in upholding the decision of the Designated Agent when he had conceded that he did not have jurisdiction, but, nonetheless, went on to deal with the substance of the matter.

In addition to this, it was his contention that the court a quo misdirected itself by upholding the appeal and reinstating the respondent without having dealt with the merits of the matter.

In this light, he moved that the matter be remitted to the Labour Court to deal with the matter on the merits and that the decision of the Designated Agent be set aside.

He also stated, that, if the respondent's contention was that his matter was not heard within 30 days, the correct procedure available to the respondent was to file an application for review and not launch an appeal as he did.

Conversely, the respondent submitted that his appeal lay with the Designated Agent in terms of section 14 of SI 87/17 given that the matter was not heard and concluded by the National Employment Council Exemptions Committee (the Exemptions Committee) within 30 days.

He was convinced that the determination of the Designated Agent, despite the absence of jurisdiction, was proper as well as the accompanying order for reinstatement. He believed that the Designated Agent has powers conferred upon him to give redress in matters such as his.

THE LAW

Section 63(3a) of the Labour Act provides as follows:

“(3a) A designated agent of an employment council who meets such qualifications as may be prescribed shall, in his or her certification of appointment, be authorised by the Registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention; where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered, and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

It is common cause that the provision that confers power on the Designated Agent to give redress to parties is section 63(3a) of the Labour Act.

The role of a Designated Agent was explained in the judgment of Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20 wherein the court remarked as follows…,.:

“Section 63(3a) of the Act allows a designated agent, upon authorisation by the Registrar of Labour, to either redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention. That is the case where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered.

Section 63(3b) of the Act expressly ousts the jurisdiction of a labour officer where a designated agent is authorised to redress any dispute or unfair labour practice in terms of section 63(3a) of the Act….,.

What is key in understanding what a designated agent can or cannot do is to understand the meaning of the phrase 'redress any dispute' used in section 63(3a) of the Act.

When used as a verb, the word 'redress' according to the Oxford English Dictionary, means to remedy or set right an undesirable or unfair situation. A designated agent authorised by the Registrar of Labour redresses a dispute referred to him or her. He or she offers a remedy or sets right an unfair situation.”

In as much as the above case discusses the role of a Designated Agent, it does not expressly deal with whether or not a Designated Agent has any powers conferred upon him to deal with appeals.

From a reading of the provision, there is nothing suggesting that a Designated Agent has appellate jurisdiction.

To have an appreciation of the powers bestowed upon a Designated Agent, one has to examine what it is that the Designated Agent has to do in redressing or attempting to redress a dispute.

In Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20…, it was stated;

“A designated agent may only exercise one power over a dispute. He or she may redress the dispute or attempt to redress it. He or she cannot do both. If he or she chooses to redress the dispute by hearing and determining the issues in dispute, he or she cannot, at the same time, attempt to redress the dispute.

It is clear from the provisions of section 63(3a) as read with section 93(1) of the Act that a designated agent can only proceed in terms of section 93 of the Act if he or she has not redressed the dispute.

He or she would be attempting to settle the dispute through conciliation.

There can be no attempt to settle a dispute which has been redressed.

The provisions of section 93 of the Act would apply when the power to be exercised by the designated agent is an attempt to redress the dispute through conciliation.”

From the above, it is clear that a Designated Agent can do one of two things, that is;

(i) Redress a dispute by hearing and determining the issues in dispute; or
(ii) Attempt to redress the dispute through conciliation.

He cannot do both.

What is coming up from the above-quoted excerpts from Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20 is that the Designated Agent will be redressing or attempting to redress a dispute in a fresh hearing.

Given the above, it is apparent that a Designated Agent does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

In casu, the matter was referred to the Designated Agent by the Labour Court in terms of section 14(c) of S.I. 87/17 which provides as follows:

“Appeals to the NEC

14. The Exemptions Committee of the National Employment Council shall hear and conclude appeals referred to it within seven working days;

(a)…,.

(b)…,.

(c) An appeal against the decision of the Exemptions Committee shall lie with the Labour Court;
if a matter is not determined or concluded within 30 working days, the employee or employer concerned may refer such matter to the Designated Agent who will dispose of it in accordance with section 93 of the Labour Act [Chapter 28:01].”

The 'matter' being referred to in subsection (c), in the context of the present matter, is an appeal against the determination of the Appeals Committee.

In other words, the above provision purports to give the Designated Agent power to 'redress or attempt to redress' the determination of the Appeals Committee.

This Court, in a line of authorities, has spoken on this, that, a Designated Agent cannot preside over a matter where a determination has been made: see Watyoka v Zupco (Northen Division) SC87-05; Mabeza v Sandvick Mining (2) Construction (Pvt) Ltd & Anor SC91-19; and Living Waters Theological Seminary v Rev Chikwanha SC59-21.

These matters were analysed in the recent case of Nicholas Mukarati v Pioneer Coaches (Private) Limited SC34-22 where MATHONSI JA concluded on the issue as follows:

“The reasoning in Mabeza, supra, rhymes with that in Sakarombe N.O. & Anor v Montana Carswell Meats (Pvt) Ltd SC44-20 where the court was called upon to consider the ambit of the jurisdiction of a Labour Officer under section 93 of the Act where a matter is referred to him or her in terms of section 8(6) of the National Code of Conduct.

It concluded that under section 93(1) of the Act, a Labour Officer is only mandated to preside over a fresh hearing where a complaint has been lodged. The Labour Officer does not preside over any matter where a determination has been made or one in which completed disciplinary proceedings were conducted at the workplace.”

Although the above authorities were dealing with the powers of a labour officer, the same principle applies with equal force to a Designated Agent, as, in terms of section 63(3a) of the Labour Act “the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

Section 8(6) of the National Code, which was under discussion in these cases, is similarly worded to section 14(c) of SI 18/17.

Further down on the same page, MATHONSI JA observed the following:

“In fact, in Living Waters Theological Seminary v Chikwanha, supra, the court went further to state that the provisions of section 8(6) of the National Employment Code are rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.”

The same can be said about section 14(c) of S.I. 87/17.

It is rendered inoperative by being ultra vires and inconsistent with the provisions of sections 63(3a) and 93 of the Labour Act.

In casu, the Designated Agent presided over a matter over which he did not have jurisdiction.

When there is a determination on the merits of a dispute, a Designated Agent has no jurisdiction, under section 93 of the Labour Act, to redress or attempt to redress such a dispute.

The ramifications of what the Designated Agent did in this situation are clear.

There is no power conferred upon him to hear appeals in terms of the Labour Act.

The matter was improperly referred to him, and, consequently, the proceedings before him and the resultant appeal before the court a quo were a nullity.

There was therefore no proper appeal before both the Labour Court and this Court.

Regarding costs, the appellant had prayed for costs of the appeal. In view of the fact that the matter turned on the interpretation of section 14 of SI 18/17 it would be in the interests of justice that there be no order as to costs.

Given the irregularities deliberated in this judgment; in the result, it is ordered as follows:

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of this Court's review powers in section 25(1) of the Supreme Court Act [Chapter 7:13] the proceedings before the Designated Agent and the Labour Court are hereby set aside.

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and BHUNU JA

On 9 January 2008, the respondent engaged the appellant as an Operations Contract Manager in terms of a written agreement.

The agreement provided that the appellant would be an area manager responsible for Ngezi North.

The preamble to this agreement read as follows:

“Sandvik Mining and Construction Zimbabwe have entered into an agreement with various mines to provide maintenance service contracts. Under the terms of these contracts, Sandvik Mining and Construction Zimbabwe has agreed to make human resources available to these mines in order to maintain their equipment.”

At the time of the occurrence of the events central to the dispute between the parties, the appellant was based at Unki Mine.

For reasons known only to the parties, its exact location has never been revealed. It was probably assumed that the location plays very little part in the determination of the dispute.

The parties may be correct.

Early in the morning of 8 October 2014, the appellant and a colleague, one Christopher Tias, left the mine proceeding to Harare. It is common cause that Christopher Tias was the appellant's subordinate.

The appellant was driving.

Sometime around 7am the appellant received a telephone call from Sandi Zaranyika, his immediate supervisor based in Harare. The connection was bad resulting in Sandi Zaranyika terminating the phone call.

When the duo were near Featherstone, Sandi Zaranyika sent a message on Christopher Tias's mobile phone.

Although addressed to Christopher Tias, it is common cause between the parties, that, the appellant was the intended recipient.

He was told to go back to the mine and not to come to Harare until the situation at the mine had become stable.

It is common cause that the appellant was shown the message by Christopher Tias. They proceeded to Harare nevertheless.

The appellant, instead, called a subordinate at the mine. He was given information on the situation. On arrival in Harare, he was informed that the meeting had been cancelled. He was instructed to return to the mine.

On the same day, that is, 8 October 2014, he was given notification to attend a disciplinary hearing on 22 October 2014. The charge against him was that he had willfully disobeyed a lawful order in contravention of section 4(b) of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 (“the National Code of Conduct”).

The disciplinary hearing was held as scheduled and he was convicted of misconduct on the single charge and was dismissed from employment.

He appealed internally but was not successful.

In accordance with the Code of Conduct, the matter was referred, by the appellant, to a labour officer.

The labour officer was unable to resolve the matter and it was referred to compulsory arbitration for resolution.

The arbitrator found, that, the appellant had not willfully disobeyed a lawful order.

It was his finding, that, the only thing that the appellant did not do was to return to the mine. It was also his conclusion that it was not necessary for the appellant to go to the mine to physically check the situation in view of the fact that “someone competent to do his duties was fully in charge of the mine and confirmed that the situation was under control.”

As a result of the above findings, the arbitrator found that the appellant had committed no wrong justifying his dismissal. He ordered that the appellant be reinstated without loss of salary and benefits, or, in lieu of reinstatement, that he be paid damages if his employment was no longer tenable.

The respondent appealed to the Labour Court, which appeal succeeded.

The Labour Court found, that, the appellant had committed the misconduct that he had been charged with. The learned judge in the court a quo, as a result, found that there was wilful disobedience of a lawful order. The court therefore allowed the appeal and set aside the arbitral award in its entirety.

It is against that decision that the appellant approaches this Court.

The grounds of appeal upon which the appellant seeks relief are the following:

(1) The court a quo grossly misdirected itself on the facts, amounting to a misdirection at law, in finding that the appellant's conduct, in ascertaining the situation at the mine through his subordinate, Luis Matizha, constituted a wilful disobedience to a lawful order. Such a finding is grossly unreasonable so as to raise a sense of shock that no reasonable tribunal properly applying its mind to the question and the order given by the employer would come to that conclusion.

(2) The court a quo grossly misdirected itself on the facts, amounting to a misdirection at law, in failing to appreciate that the effect of the evidence of Luis Matizha showed that he had managed the situation at the mine to be stable. Thus, the court's finding that the witness's evidence connoted that all was not well at the mine was so outrageous in its defiance of logic that no sensible person who has applied his mind to the question to be decided could arrive at it.

This matter proceeded to compulsory arbitration through a reference to the labour officer in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the National Code of Conduct).

The documentation in terms of which the matter was referred to the labour officer is not on record. His deliberations are not on record. His own referral to compulsory arbitration is also not on record.

What is on record is what the arbitrator recorded as the terms of reference by the labour officer to arbitration. The terms of reference agreed by the parties were the following:

Whether or not the claimant was unlawfully dismissed; if so, to determine the appropriate remedy.

It is obvious that, in casu, the termination was effected in terms of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the National Code of Conduct).

The appellant in this dispute was charged with misconduct in terms of the National Employment Code of Conduct. He was subjected to a disciplinary hearing in terms of a Code of Conduct, as required by the law, after which he was dismissed from employment.

Given that the appellant was subjected to a properly conducted disciplinary process which culminated in a verdict and a dismissal consequent thereto, a reference to the labour officer, alleging unfair dismissal, does not accord with the law.

The labour officer did not deal with the merits of the disciplinary process.

On that premise, it cannot be said that the dismissal was unfair as envisaged in terms of the Labour Act.

It is therefore clear to the naked eye, that, he could not lodge a complaint with the labour officer alleging unfair dismissal.

The labour officer would not have the jurisdiction to entertain any complaint from the appellant, as what the appellant was seeking was the setting aside of the determination of the disciplinary process.

This process could only be set aside through an appeal or a review.

The process before the labour officer was none of the above.

In casu, since the disciplinary proceedings against the appellant were conducted under the aegis of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 it stands to reason that the matter was referred to a labour officer in accordance with the provisions of the same.

Sections 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 provide as follows:

“(6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within seven working days or receipt of such decision.

(7) The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.”

In casu, a determination on the merits had been made by the disciplinary authority, as provided for in the Code of Conduct.

The reference to the labour officer, in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006, would, as a consequence, seem to be in direct contrast to the provisions of section 101(5) and (6) of the Labour Act.

When one has regard to section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 (the National Employment Code) one may be misled into assuming that even completed disciplinary hearings should be referred to a labour officer.

It is not so.

In sum, this means that the proceedings before the labour officer are a nullity as are the proceedings before the arbitrator.

It is therefore disquieting to note what the arbitrator said:

“Unless there are other hidden issues, there is absolutely nothing wrong with what the claimant did that warrants dismissal. Moreso when one considers the fact, that, the claimant had a clean record and also making decisions from a managerial realm, there was nothing weird done to warrant dismissal. The issue is simply trivial to say the least; for it seems the respondent simply wanted the claimant to go back to the mine even though the assignment could have been simply and easily done by just making a phone call and check on the stability of operations at the mine, like what the claimant did.”

A perusal of the record will show that a claim for unfair dismissal was presented before the arbitrator.

In his statement of claim, the appellant made reference to the disciplinary proceedings instituted against him and the fact that he was found guilty of the charge of misconduct preferred against him resulting in his dismissal from employment. He also made reference to the fact that he had appealed against the verdict and the penalty to the Appeals Authority which authority confirmed both the verdict and the penalty.

The appellant ends his claim by stating that he was wrongly found guilty.

As a consequence, he prays for reinstatement, back-pay from the date of dismissal, and damages in lieu of reinstatement.

It is clear that the claim brought by the appellant, although disguised as an unfair dismissal, was in actual fact an appeal against the dismissal of his appeal by the Appeals Authority.

This much is obvious from his statement that he was wrongly found guilty.

What he sought was a reversal of the findings of the disciplinary authority.

The question is: did the arbitrator have the jurisdiction to act as an Appeal Tribunal and set aside the decision of the Appeals Authority?

This matter made its way to the arbitrator as a reference to compulsory arbitration from a labour officer acting in terms of section 93 of the Labour Act [Chapter 28:01].

His function, under section 93 of the Labour Act, is to conciliate or settle the dispute, failing which he issues a Certificate of No Settlement and refers it to an arbitrator, under section 93(5) of the Labour Act, where the dispute is a dispute of right.

In Watyoka v ZUPCO (Northern Division) 2006 (2) ZLR 170, at p172, this court said:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(a) The matter must not be one that is liable to be the subject of proceedings under a Code of Conduct;

(b) The matter has not been determined within thirty days of the date of notification; and

(c) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii))…,.

Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined.

The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”

And later, at p173H-174A, the court put the issue beyond any doubt and stated:

“The section cannot be read as providing for a second determination over and above the one already made by a disciplinary committee. Once there was a determination, the correct procedure was to appeal to the company's management as provided in the Code of Conduct.”

And later still at p175B-C:

“In this case, by the time the matter was entertained by the labour relations officer, two separate provisions had ousted his jurisdiction. They were:

(i) Firstly, the fact that a determination had been made; and

(ii) Secondly, the dispute had prescribed in terms of section 94(1)(b), in that the allegations of unfair labour practice were raised at meetings held with the disciplinary committee in November 1997 but the labour relations officer only entertained the complaint on 6 August 1999, a period of about eighteen months, and well beyond the period of one hundred and eighty days provided in section 94(1)(b).”

These remarks were made in consideration of the powers that a labour officer is imbued with under section 93 of the Labour Act prior to its amendment in 2015 by Act 5 of 2015.

It is obvious, therefore, that, completed proceedings under a Code of Conduct are not subject to scrutiny by a labour officer as that process is confined to initial complaints where a labour officer exercises his powers under section 93 of the Labour Act in order to conciliate, failing which he is empowered to refer the parties to arbitration.

The view I take, therefore, is that a labour officer is empowered to determine complaints of unfair labour practice and unfair dismissal where there has not been procedural process that has been completed.

His jurisdiction is limited to that of a tribunal of first instance.

In my view, the principle emerging from all the authorities referred to above can be summarized by the statement to the effect, that, a labour officer does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

It is clear, that, in this case, the labour officer presided over a matter over which he did not have any jurisdiction.

As stated in Watyoka v ZUPCO (Northern Division) 2006 (2) ZLR 170, once there is a determination on the merits of a dispute, a labour officer has no jurisdiction under section 93 of the Labour Act.

In this context, the implications of what the arbitrator did are obvious.

He was aware that the appellant had been dismissed as a result of a finding of guilt made by a disciplinary body set up under a Code of Conduct. He was equally aware that an appeals authority, set up under the same Code of Conduct, had confirmed not just the findings of guilt on the part of the appellant but had also confirmed the penalty of dismissal.

Notwithstanding this knowledge on his part, the arbitrator proceeded to entertain a claim, the premise of which was to set aside proceedings of a disciplinary body.

He obviously was not acting as an Appeals Tribunal.

He however considered himself properly seized with the proceedings. The latter proceedings were, in fact, a re-hearing of the facts of the dispute.

It is pertinent to note, that, the arbitrator did not have regard to the record of proceedings of the disciplinary hearing. The ruling by the arbitrator was couched in a manner which ignored the findings of the disciplinary tribunal. The arbitrator proceeded to substitute his own determination on the facts as if a disciplinary hearing had not been conducted and the appellant dismissed consequent to a finding of guilt.

He exercised a power he clearly did not have.

And yet, by the stroke of a pen, without exercising any appeal jurisdiction over the disciplinary body, the arbitrator went on to set aside the findings of fact reached by the disciplinary authority, which were confirmed by the appeal structures of the respondent.

Such a result would, in my view, lead to an absurdity.

To describe the process by which this decision was reached as being irregular is mild. It is not only irregular, it was unlawful, and, nothing can stand on that decision.

I conclude, therefore, that, the labour officer did not have jurisdiction to hear a complaint from the appellant, of whatever nature, and that the referral to compulsory arbitration was unlawful, and the proceedings before the arbitrator were, as a result, an irregularity.

In this case, the appeal is against the decision of the Labour Court, which set aside the arbitral award.

The court, in determining the appeal before it, had regard to the record of proceedings of the disciplinary hearing.

In my view, very little purpose would be served in setting aside the proceedings before the arbitrator. I intend to consider the appeal in light of the findings by the Labour Court with regard to the disciplinary proceedings.

At issue before the court a quo, and this Court, is the statement forming the basis of the charge.

The contention of the respondent is that the appellant failed to adhere to an instruction lawfully issued by his superior at the work place. On the other hand, the contention of the appellant is that he did not deliberately defy an instruction, and that he lacked the requisite intention to disobey the instruction.

The sole issue therefore is whether or not he willfully disobeyed a lawful instruction.

What constitutes wilful disobedience to a lawful instruction at the workplace was defined by GUBBAY JA…, in Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (S)…, wherein the learned jurist said:

“Willful disobedience or wilful misconduct, the words, in my view, connote a deliberate and serious refusal to obey. Knowledge and deliberateness must be present. Disobedience must be intentional and not the result of mistake or inadvertence. It must be disobedience in a serious degree, and not trivial – not simply an unconsidered reaction in a moment of excitement. It must be such disobedience as to be likely to undermine the relationship between the employer and the employee, going to the very root of the contract of employment.”

The contention is made, that, the court a quo erred in finding the appellant guilty of the offence of wilful disobedience to a lawful order when the facts and the circumstances of the matter, and the nature of the instruction given, does not support the finding made.

The appellant further argues, that, there was no willful disobedience because the SMS which was sent by his immediate superior was conditional upon the stability of the situation at the mine.

The SMS read:

“Misheck, LHD 24 is down at Unki Mine. Go back to the mine, do not come to Harare until the situation is stable.”

The court a quo said the following:

“The order needs no interpretation. The respondent was advised, LHD 24 was down, which was a fact. He was told to go back to Unki Mine - he did not. He was told not to proceed to Harare until the situation was stable - he did proceed when the situation was not yet stable.

I say this because Luis Matizha, in his evidence, said, he told the respondent about the issue.

The respondent was not a shop floor employee, he was a senior employee who is expected to know the exigencies of accountability, especially in such a case where the appellant's role at Unki Mine was to maintain the machinery.

The respondent, being the person in charge, it would be expected that some situations required his personal attendance. He failed to do so, despite being given an order.

The test for willfulness is an objective test: see Matereke case. A reasonable man in the respondent's shoes would have known that he was obliged to go back and attend to the situation.”

The interpretation of the SMS by the court a quo was on point.

The appellant was told to go back to the mine. He was not to come to Harare until the situation had stabilized. He was not told to ascertain the status through the telephone.

He deliberately ignored the clear instruction to go back to the mine. His presence at the mine was imperative.

The preamble to his contract of employment made it clear that he was assigned to the Ngezi Mine site to enable the respondent to perform its own contracts with various mines.

The evidence adduced before the disciplinary authority supports the finding by the court a quo, that, the situation at the mine warranted the presence of the appellant.

The court a quo correctly found, that, by failing to attend to the mine as instructed, the appellant willfully disobeyed a lawful instruction.

The court a quo was correct in allowing the appeal and setting aside the arbitral award.

In the premises, the appeal is devoid of merit and ought to be dismissed. It is accordingly dismissed with costs.

PATEL JA: I have read the judgment of GOWORA JA, with which judgment BHUNU JA concurs, and wish to add the following remarks.

While I agree that the appeal is devoid of merit and ought to be dismissed, I have certain reservations apropos the preliminary observations in the main judgment curtailing the jurisdictional role of labour officers and arbitrations under the governing statutory provisions.

In particular, I am inclined to the view, that, section 8 of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 (the National Code of Conduct), construed in a purposive manner, is reconcilable with sections 93 and 101 of the Labour Act in such manner as to accommodate the jurisdictional competence of labour officers and arbitrators over labour disputes emanating from internal disciplinary proceedings.

Nevertheless, given the view that I take of the merits of this matter, I do not think it necessary to elaborate the aforesaid reservations in the context of this particular case.

I fully concur with the reasoning and findings of GOWORA JA to the effect, that, the arbitrator misdirected himself on the substantive merits by trivialising the degree of culpability attributable to the appellant's misconduct in casu.

By the same token, I fully endorse her conclusion that the decision of the court a quo, on the merits, is unassailable and that it quite correctly set aside the impugned arbitral award in its entirety.

In short, there is no doubt that the appellant was guilty as charged, of wilful disobedience of a lawful order, and that, consequently, he was justifiably subjected to the ultimate penalty of dismissal.

For these reasons, I agree that the appeal be dismissed with costs.

BHUNU JA: I wish to comment as follows:

I have read the comments by my brother PATEL JA and I do not see how the three (3) sections alluded to by PATEL JA can be reconciled to accord a Labour Officer jurisdiction that he does not have.

It is inconceivable that a Labour Officer can assume jurisdiction over a completed matter by another tribunal without being clothed with appellate or review jurisdiction.

In the absence of specific statutory provisions, it is only appellate or review jurisdiction that authorizes a higher court or tribunal to intervene in the conduct or verdict of a subordinate court or tribunal.

In the circumstances, both the Labour Officer and the Arbitrator acted without power, jurisdiction, or authority to intervene in a matter completed in terms of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 (the National Code of Conduct).

It is for the foregoing reasons that I agree with my sister GOWORA JA.

SC59-21 : LIVING WATERS THEOLOGICAL SEMINARY vs REVEREND NGONI CHIKWANHA
Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.FACTUAL BACKGROUNDThe detailed facts of the case can be summarised as follows:The respondent was, from 22 October 2013, employed by the ...

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

In terms of section 101(6) of the Labour Act, if a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined. The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within 7 working days from the day of receipt of such decision.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party aggrieved by a decision or manner in which an appeal is handled by his or her employer, or the Appeals Officer or Appeals Committee, as the case may be, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced. Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Whether or not the matter was properly before the labour officer, the arbitrator and the court a quo

Although the parties made submissions on the merits, it is my view that a more fundamental issue on the procedure adopted by the parties, and the labour officer, in the resolution of the matter puts this matter to rest.

It is imperative to note, that, the respondent referred the matter to the labour officer after the appellant's Disciplinary Committee and the Appeals Committee had determined the matter on the merits through a disciplinary process under the Labour (National Employment Code of Conduct) Regulations, S.I. 15/2006 (the Model Code).

It is against this background that I take the view that a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings were properly before the labour officer and the arbitrator.

A labour officer is a creature of statute and can therefore only exercise jurisdiction granted to him in terms of the statute which created his office. As established under the analysis of the law, a labour officer does not have jurisdiction to exercise appellate jurisdiction over decisions of disciplinary authorities and appellate authorities in terms of Codes of Conduct.

In this case, the labour officer exercised appellate jurisdiction over the appellant's Appeals Committee's decision when he had no jurisdiction to do so. The proceedings before the labour officer are therefore a nullity. The referral to the arbitrator, and the arbitral proceedings, are also a nullity. The appeals to the Labour Court and this Court are also nullities as they are appeals against nullities.

The appellant's appeal to this Court must therefore be struck off the roll.

In terms of our review powers, as provided by section 25 of the Supreme Court Act [Chapter 7:13], the proceedings before the labour officer, the arbitrator, and the Labour Court, whose irregularities have been brought to our attention, must be set aside.

The finding that the appeal to the Labour Court was a nullity renders it unnecessary to determine issue number 2.

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs.

I therefore order as follows:

1. The matter is struck off the roll.

2. The proceedings before the labour officer, the arbitrator, and the Labour Court be and are hereby set aside.

3. Each party shall bear its own costs.

SC40-23 : JOHANNES MANYENGA vs PETROZIM (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, MAKONI JA and CHITAKUNYE JA

This is an appeal against the entire judgment of the Labour Court (“the court a quo”), sitting at Harare, wherein it dismissed the appellant's appeal and upheld the decision of the respondent's disciplinary authority dismissing the appellant from employment.FACTUAL BACKGROUNDThe appellant was employed by the respondent as a Deputy General ...

FACTUAL BACKGROUND

The appellant was employed by the respondent as a Deputy General Manager on 1 November 2014. During the course of his employment, he was appointed as Acting General Manager during the following periods:

(i) 6 to 22 January 2016 (16 days);

(ii) 21 to 25 August 2017 (4 days);

(iii) 10 to 11 July 2018 (1 day);

(iv) 15 to 16 August 2018 (1 day); and

(v) 11 to 21 January 2019 (10 days).

The appellant was later charged with two counts of contravening section 4(a) of the Labour (National Employment Code of Conduct) Regulations 2006 (“the Regulations”), that is, committing any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract.

On the first count, the appellant was charged with failing and/or neglecting to advise the Board of Directors of the respondent (the Board) of the various problems and challenges that the company was facing in implementing its projects during the periods that he was employed as the Deputy General Manager, and, in particular, during the above-mentioned periods when he was the Acting General Manager.

On the second count, it was alleged, that, during the appellant's employment as Deputy General Manager, from 1 November 2014 to 22 March 2019 (when he was placed on mandatory leave), he attended PetroZim Board meetings and failed and/or neglected to advise the Board of the various problems and challenges that the company was facing in implementing its projects, in particular, the items numbered A to A(v) below:

“A. The following are the incidences you failed and/or neglected to report to the Board when you were Acting General Manager and during Board meetings as Deputy General Manager:

A(i) You failed and/or neglected to advise the Board that the Company had purchased two DRA skids from Kaltrade amounting to US$610,000. The purchase order was for new DRA skids. Kaltrade failed to deliver the skids. On their failure to deliver, Kaltrade then offered to sell to the Company the two used demo DRA skids. The Company accepted the old demo skids (which were bought as test kits against a deposit of US$35,000), as a replacement for the new skids that Kaltrade had failed to supply. Despite the skids being previously used, the Company accepted them at the price of US$610,000 that had been quoted for the supply of new skids by Kaltrade.

A(ii) You further failed and/or neglected to advise the Board that the Company had irregularly accepted a purported 5-year warranty on the demo skids from Kaltrade for the period 2013 to 2019. Despite the demo skids being purported to be on a 5-year warranty, the Company subsequently approved the purchase of DRA skid spares at a cost of US$91,082=30.

A(iii) You also did not advise the Board, that, despite various outstanding orders from Kaltrade, including 2 outstanding DRA skids which had been paid for in 2013, as late as September 2018, the Company went ahead and authorised the payment of US$267,760 to Kaltrade for the supply of another DRA skid. To date this has still not been delivered.

A(iv) You did not report to the Board that the ethanol project that had been purported to be commissioned as 100% functional was actually operating at 50% capacity due to the fact that only 3 out of 6 pumps had been installed, and, you failed and neglected to ensure delivery of the remaining 3 pumps from Kaltrade (Private) Limited despite having paid, in advance, the full purchase price.

A(v) You failed to advise the Board that the tank gauging system at Feruka was not working since its failure in 2017. Further, you did not advise the Board that the Company was relying on tank readings from the customer, NOIC, which compromised the Company's efficiency and systems.”

A disciplinary hearing was subsequently held.

It was the respondent's case, that, the material non-disclosures by the appellant, during the course of his employment, created the impression that everything was in order when, in fact, there were serious operational challenges that threatened the company's capacity to deliver on its mandate. The respondent averred, that, the appellant had failed to perform his duties in line with the dictates of his job description which was stipulated in the contract of employment. The contract required the appellant to report on overall company performance and provide input for Board meetings.

The appellant denied the charges.

He argued, that, he was never appointed as the Acting General Manager of the respondent and that the affairs of the company were regulated by a joint venture agreement between Lonrho and NOIC, which agreement reserved the right of appointment of a General Manager to Lonrho.

The appellant also claimed, that, in terms of the company organogram, no subordinates reported to him in his capacity as the Deputy General Manager. He further stated, that, all employees reported to the General Manager.

In addition, the appellant submitted, that, he had previously informed the Board that none of the other employees, including the Chief Engineer and the Accountant, were reporting to him, and, further, that he was being left out of project meetings and appraisals. The Board did not resolve this anomaly, but, instead, passed a resolution that only the General Manager was to communicate with the Board on all issues.

The Disciplinary Authority found, that, the evidence before it established that the appellant, as the Deputy General Manager, had been periodically appointed as the Acting General Manager of the respondent, in terms of the joint venture agreement.

It also found, that, the appellant, by virtue of being the next senior person available as the Deputy General Manager, would automatically be the Acting General Manager in the absence of the substantive General Manager when she either travelled or was on leave.

It further found, that, this evidence was conceded to by the appellant during cross-examination.

Furthermore, the appellant's contract of employment and job description showed, that, he was required to know and be responsible for the day-to-day monitoring of company operations and projects.

Regarding the question of whether the appellant had an obligation to report to the Board or the Board chairperson, it found that there were no Board meetings held during the time that the appellant was Acting General Manager. There was thus no way that the appellant could have reported challenges being faced by the company to the Board.

Nevertheless, it found, that, despite there being no meetings, the appellant was still expected to update the Board chairman on operational issues.

However, the Disciplinary Authority observed that the substantive General Manager, one Mrs Katsande, who the appellant would stand in for as the Acting General Manager, deliberately withheld information from the appellant such that this had an effect on his capacity to perform his duties as Acting General Manager.

It was also found, that, despite being excluded, the appellant was still aware of the challenges concerning the prover loop and metering project.

In light of the above, the Disciplinary Authority concluded, that, the appellant was aware of his responsibilities as stipulated in his contract of employment and the joint venture agreement.

It further held, that, the appellant had an obligation to report to the Board, through the chairperson, to inform it of the prover loop metering project problems and the other problems that he admitted to being aware of, because, as the Acting General Manager, he was the “gateway to the Board.”

The Disciplinary Authority ruled, that, the appellant was guilty, on both counts, of contravening of section 4(a) of the Labour (National Employment Code of Conduct) Regulations 2006. Consequently, the appellant was dismissed from his post as Deputy General Manager of the respondent on 14 August 2020.

Aggrieved by the decision of the Disciplinary Authority, the appellant filed an appeal in the court a quo.

SUBMISSIONS BEFORE THE COURT A QUO

At the hearing of the appeal, the court a quo struck out grounds of appeal one and two because they were improper. The appeal was, therefore, heard on the basis of the remaining three grounds of appeal.

The appellant submitted, that, the Disciplinary Authority erred at law by making wrong factual considerations and failing to consider factual evidence presented at the hearing which absolved the appellant from the allegations of misconduct.

It further erred at law by failing to consider, as it should have done, that the admission by the respondent, that, only the General Manager was permitted to report to the Board resolved the matter before it in favour of the appellant.

Having noted the admission by the respondent, that, there were no Board meetings convened during the period in which the appellant was accused of misconduct, the Disciplinary Authority erred in proceeding to find that the appellant was guilty of the misconduct alleged in that he should have reported to the Board Chair.

Finally, he argued that the Disciplinary Authority erred in failing to consider, as it should have done, that the respondent had failed to prove, on a balance of probabilities, that, the appellant was guilty of the alleged misconduct.

Per contra, the respondent argued, that, the appellant had a duty to report to the Board, which duty he was well aware of and did not perform.

It contended, that, the appellant had numerous occasions to report to the Board on the challenges faced by the company, even when it was not sitting, as he communicated with the Board Chairman on various occasions. The respondent was of the view, that, the appellant was the Acting General Manager at the material times in issue and had a duty to protect his employer's property and interests, hence, he could not escape liability for failure to act.

FINDINGS OF THE COURT A QUO

The court a quo opined, that, the appellant was an expert who had an obligation to perform his job for the benefit of the respondent. In view of this, the court a quo held, that, the appellant had a duty to report any anomalies concerning the functioning of the company, especially during the periods he was the Acting General Manager.

In relation to the grounds of appeal, the court a quo held, that, they had no merit.

It reasoned, that, in the absence of the General Manager, the appellant was the Acting General Manager who had a duty to report to the Board. It was also the court's view, that, even when the Board did not convene, the appellant still had access to the Board Chairman whom he should have advised of any challenges bedevilling the company.

The court a quo thus concluded, that, there was no need for it, as an Appellate Court, to interfere with the findings and the exercise of discretion by the Disciplinary Authority as there was no misdirection on its part, taking into account the evidence that was before it.

In the result, the court a quo dismissed the appeal and upheld the decision of the disciplinary authority.

Irked by the decision of the court a quo, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

“1. The court a quo erred in law in not finding, that, the principle lex non cogit ad impossibilia applied to the appellant's circumstances, that is to say, that, objective impossibility of discharging a legal duty is always a defence when the type of the conduct charged is an omission.

2. A fortiori the court a quo erred and grossly misdirected itself on the facts and the evidence, such misdirection amounting to a misdirection in law, in not finding as it ought to have done, that, it was objectively impossible for the appellant to perform the obligation in respect of which the omission charged was alleged because on the common cause facts and evidence:

(i) There was no Board meeting that took place or a properly convened and constituted Board meeting that sat at all to deal with the affairs of the respondent during the period the omission is alleged to have taken place; and

(ii) There was an extant instruction from the Board of Directors directing that all communication to the Board, in relation to the affairs of the respondent, was to be through the General Manager only of which the appellant was not; and

(iii) There was no way appellant could have known of the operation challenges faced by the respondent in circumstances where it was clear, that, as a senior managerial employee who was not always on the ground, none of the subordinates with which (sic)? such information reported to him as they all reported directly to the substantive General Manager; and

(iv) In terms of his contract of employment, the appellant had no subordinate who reported to him.

3. The court a quo erred and grossly misdirected itself in law in finding, that, reporting to or advising the Board Chair in respect of issues meant for the whole Board of Directors, at a properly convened and constituted meeting, was enough to comply with the requirement to inform the Board and that appellant's failure and/or neglect to report the Board Chairman, as opposed to the Board, was fatal as to go to the root of his employment contract.

4. The court a quo having found, that, appellant's interpretation of the emails he received from the General Manager is correct, erred and grossly misdirected itself in any event in finding, that, he was appointed the Acting General Manager with duties and responsibilities of advising the Board of Directors on the operational challenges of the company.

5. The court a quo erred in law in considering, that, it was being asked to interfere with the exercise of a discretion (sic) in circumstances wherein the appellant impugned findings of fact.

6. The court a quo erred and misdirected itself, in any event, in not finding that there existed the jurisdictional facts upon which the court a quo could interfere with the factual findings of the disciplinary authority and in not interfering with the same.”

The appellant prays, that, the appeal be allowed with costs and that the decision of the court a quo be set aside and substituted with one allowing the appeal and setting aside the decision of the Disciplinary Authority.

SUBMISSIONS BEFORE THIS COURT

At the hearing of the appeal, and following an exchange with the court, counsel for the appellant conceded, that, the second ground of appeal was argumentative and not concise.

He consequently abandoned it.

On the merits, counsel for the appellant submitted, that, this case shows that the court a quo grossly misdirected itself on the facts and that such misdirection amounts to an error of law. He contended, that, it was objectively impossible for the appellant to perform the obligations in respect of which the charge was based because of the following common cause facts and evidence:

(i) There was no Board meeting that took place or a properly convened and constituted Board meeting that sat at all to deal with the affairs of the respondent during the period in which the omission is alleged to have taken place;

(ii) There was an extant instruction from the Board of Directors directing that all communication to the Board, in relation to the affairs of the respondent, had to pass through the General Manager only; and

(iii) There was no way the appellant could have known of the operational challenges faced by the respondent in the circumstances because he was a senior managerial employee who was not always on the ground. Furthermore, none of the subordinates who would have had such knowledge or information reported to him as they all reported directly to the substantive General Manager.

On the contrary, counsel for the respondent submitted, that, the appellant failed and/or neglected to advise the Board of the various problems and challenges that the company was facing in implementing its projects during the periods that he was employed as the Deputy General Manager and when he acted as the General Manager and attended the respondent's Board meetings.

He further submitted, that, the aforementioned material non-disclosures created the impression that everything was in order when, in fact, there were serious operational challenges that threatened the company's ability to deliver its mandate.

He concluded his submissions by arguing, that, the appellant failed to perform his duties during the tenure of his contract of employment as encompassed by his job description which provided that he should report on the company's overall performance and provide input for Board meetings.

ANALYSIS

Although the appeal raises several grounds of appeal, my considered view is that there is only one issue for determination, that is, whether or not there was sufficient evidence to justify the appellant's conviction and dismissal from employment.

The complaint in the appellant's first ground of appeal is that the court a quo erred in law in not finding, that, the principle lex non cogit ad impossibilia applied to the appellant's circumstances.

The nub of the charges that the appellant was facing was his omission to advise the Board on the operational challenges that the company was facing. The principle is that objective impossibility in discharging a legal duty is always a defence when the type of conduct charged is an omission.

The appellant's main contention is that the court a quo erred by finding him guilty of committing any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract, in circumstances where it was objectively impossible for him to perform the acts complained of as forming the charge against him.

The law regarding the defence of objective impossibility was espoused in the case of Watergate (Pvt) Ltd v Commercial Bank of Zimbabwe 2006 (1) ZLR 9 (S)..., wherein this Court held that:

“…, the general rule is that the impossibility of performance is an excuse for the non-performance of an obligation: impossibilium nulla obligatio est. However, whether or not the general rule applies in a particular case would depend upon the circumstances of the case and the nature of the impossibility.

In this regard, I can do no better than quote what BOSHOFF JP said in Bischofberger v Van Eyck 1981 (2) SA 607 (W). At 611BD, the learned JUDGE PRESIDENT said:

'…, when the court has to decide on the effect of impossibility of performance on a contract, the court should first have regard to the general rule, that, impossibility of performance does, in general, excuse the performance of a contract, but does not do so in all cases, and must then look to the nature of the contract, the relation of the parties, the circumstances of the case, and the nature of the impossibility to see whether the general rule ought, in the particular circumstances of the case, to be applied.

In this connection, regard must be had not only to the nature of the contract, but also to the causes of the impossibility.

If the causes were in the contemplation of the parties, they are, generally speaking, bound by the contract. If, on the contrary, they were such as no human foresight could have foreseen, the obligations under the contract are extinguished.'”…,.

In order for the defence of impossibility to succeed, the impossibility must be objective in the sense, that, it must be a real impossibility which is not based on a party's disinterest or unwillingness to perform their contractual duties.

This is the position which has been accepted by this Court in the case of Firstel Cellular (Pvt) Ltd v Netone Cellular (Pvt) Ltd SC01-15…, where PATEL JA…, held that:

“It is trite, that, the courts will be astute not to exonerate a party from performing its obligations under a contract that it has voluntarily entered into at arms length….,. In particular, it must be shown that the impossibility is objective and absolute in contradistinction to one that is merely subjective or relative.”

Furthermore, the impossibility to perform must not only temporarily prevent a party from performing their contractual obligations - it must be one where performance of the contract is finally and completely impossible: see the case of Mutangadura v TS Timber Building Supplies 2009 (2) ZLR 424 (H)…,.

Having outlined the principles to consider in applying the defence of objective impossibility, I now turn to determine whether the circumstances in which the appellant found himself, entitled him to be excused for his failure or omission to appraise the respondent's Board of the operational challenges that the company was facing.

Counsel for the appellant contends, that, it was impossible for the appellant to perform his duties as the Acting General Manager in the following respects:

The appellant could not inform the Board of the operational problems plaguing the company due to the fact, that, the Board did not convene during the material times that he was acting as the General Manager.

That, there was no Board that was convened at the relevant times is a fact that is admitted by the respondent. Such an admission cements the appellant's case that it was impossible for him to advise the Board of the problems faced by the company for the simple reason, that, the Board did not convene.

The effect of an admission has been held to be the following in the case of Potato Seed Production (Proprietary) Ltd v Princewood Enterprises (Pvt) Ltd & Ors HH45-17…,.;

“Indeed, the effect of an admission is settled law. Once made, it binds its maker with the attendant consequences: see Kettex Holdings P/L v S Kencor Management Services P/L HH236-15.”

The consequences of making an admission, which is not withdrawn, is that it will not be necessary to prove the admitted fact(s): Adler v Elliot 1988 (2) ZLR 283 (S)…,.

In addition, this Court, in the case of Mashoko v Mashoko & Ors SC114-22, held that:

“The law on admissions in pleadings, and, indeed, in evidence, is also settled. A party to civil proceedings may not, without the leave of the court, withdraw an admission made, nor may it lead evidence to contradict any admission the party would have made. By equal measure, a party is not permitted to attempt to disprove admissions made.”

The above position is also provided for in section 36 of the Civil Evidence Act [Chapter 8:01] in the following manner:

“36. Admissions

(1) An admission as to any fact in issue in civil proceedings, made by or on behalf of a party to those proceedings, shall be admissible in evidence as proof of that fact, whether the admission was made orally or in writing or otherwise.

(2)…,.

(3) It shall not be necessary for any party to civil proceedings to prove any fact admitted on the record of the proceedings.”

This point was conceded by counsel for the respondent upon being engaged by the court.

He further conceded, that, no evidence was led by the respondent tying down the appellant to the acts of omission, as particularized in the charge sheet, to the specific dates mentioned in Count One when the appellant was the Acting General Manager.

I agree with the appellant, that, as Mr Chiganze, the respondent's Board Chairman, admitted, under cross-examination at the disciplinary hearing, that, there was no properly convened Board at the material times, there was no onus on the appellant to prove that indeed the Board did not sit which resulted in him failing to advise it of the problems faced by the company.

In view of the above, the court a quo should have upheld the appellant's defense of objective impossibility in respect of Count One.

Regarding the second count, counsel for the appellant submitted, that it was also a misdirection for the court a quo to find, that, the appellant, as the Deputy General Manager, omitted to advise the Board of the operational challenges when the common cause facts and evidence show, that, there was an extant instruction from the Board of Directors directing that all communication to the Board, in relation to the affairs of the respondent, was to be done by the General Manager only.

The appellant was not the General Manager.

To add on to the above submissions, the appellant's predicament was further compounded by the fact, that, he had no subordinates reporting to him on the company's operations. The respondent's organogram was amended by removing all subordinates that were under him.

The amendment was countersigned by the General Manager.

The position was corroborated by the evidence led by the respondent. Two of its witnesses confirmed that they would report operational challenges to the Chief Engineer and not to the appellant. The Chief Engineer had been removed as a subordinate of the appellant.

It was also common cause, that, with this type of organizational set-up, the appellant could not have known of any operational challenges being faced by the company, which he would have had to appraise the Board of, unless he personally visited the sites.

The next ground of appeal attacks the court a quo's finding, that, reporting to or advising the Board Chairman in respect of issues meant for the whole Board of Directors, at a properly convened meeting, was enough to comply with the requirement to inform the Board, and, that, the appellant's failure and/or neglect to report or advise the Board Chairman, as opposed to the Board, was fatal as to go to the root of his employment contract.

In so finding, the court a quo misdirected itself.

There is a clear distinction between the Board of Directors and the chairperson of the Board.

According to Black's Law Dictionary, 2nd ed, a Board is defined to mean “a committee of persons organised under authority of law in order to exercise certain authorities, have oversight or control of certain matters, or discharge functions….,.”

Reporting to the chairperson of the Board would not have sufficed as performance of the appellant's duties as the Acting General Manager, or as Deputy General Manager, for the simple reason, that, the chairman does not constitute the Board on his own.

This court has time and again pronounced, that, what constitutes a Board of Directors is a properly convened and constituted Board of Directors as prescribed in terms of the company's Articles of Association or other governing documents: see Crown and Anor v Energy Resources Africa Consortium (Private) Limited & Anor SC03-17.

This proposition was alluded to by GARWE JA…, in the case of Dube v Premier Service Medical Aid Society & Anor SC73-19 at pp14-15 paragraph 39:

“Whilst the deponent may be the chairperson of the Board of Directors of the first respondent, that position does not, on its own, clothe him with the necessary authority to represent the first respondent's Board of Directors.”

The fact that no Board was convened is one that was admitted by the respondent.

The admission, that, there was no Board that was convened, is sufficient proof that it was impossible for the appellant to advise the Board of the operational challenges that the company was facing.

The court a quo clearly misdirected itself in its finding, that, the appellant should have reported to the Board Chairman as he is the face of the Board. Such a finding has no foundation at law....,.

The next ground of complaint is that the court a quo erred and misdirected itself, in any event, in not finding that there existed jurisdictional facts upon which the court a quo could interfere with the factual findings of the disciplinary authority and in not interfering with the same.

Counsel for the appellant submitted, that, the law is that the Appellate Court can interfere with the factual findings of a lower court if such findings are irrational. The principle is that the decision impugned must, on the facts, be so grossly irrational and outrageous in its defiance of logic that no reasonable person, having applied his mind to the question at issue, could have arrived at that decision. For the proposition, he relied on the authority of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,.

He further submitted, that, failure to properly apply one's mind to the facts in issue amounts to failure to take proper and relevant consideration of the questions at issue.

This Court can interfere with a decision arising out of irrelevant considerations or upon a mistaken view of the facts.

In Barros & Anor v Chimphonda 1999 (1) ZLR 58 (SC)…, the court said:

“The attack upon the determination of the learned judge that there were no special circumstances for preferring the second purchaser above the first, one which clearly involved the exercise of a judicial discretion, may only be interfered with on limited grounds: see Farmers Co-operative Society (Reg.) v Berry 1912 AD 343 at 350.

These grounds are firmly entrenched.

It is not enough that the Appellate Court considers, that, if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion.

If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution, provided always it has the materials for so doing. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court.”

Based on the above authorities, I find that it was an error and mistaken view of facts for the court to find, that, the appellant was guilty of the charges merely because he failed to advise the Board Chairman when the charge sheet speaks of the Board of Directors.

In any event, the appellant's contract of employment, and his job description, mandated him to report to the General Manager and not to the Board.

It is a fact, that, there was a resolution by the Board that all communication to the Board be made only by the General Manager.

The appellant was not a General Manager of the respondent.

He was just a Deputy General Manager who fell within the genus of those specifically prohibited from communicating with the Board of the respondent on all issues to do with the operations of the company.

This was a common cause fact which the court a quo was expected to accept as proven without further ado.

It was also common cause, that, there were no subordinates who reported to him on what was happening on the ground. The court a quo appositely described him as a “lone ranger”. There being no subordinate reporting directly to the appellant, there was no way that the appellant could have known of the operational challenges that the company was facing.

There was, therefore, no basis for the court a quo to confirm the findings of the Disciplinary Authority in this regard.

DISPOSITION

In the light of the foregoing analysis, it is my finding, that, in the circumstances of this case, the court a quo misdirected itself in a number of respects and this Court can safely interfere with its decision. The Disciplinary Authority reached a conclusion which was not supported by the evidence before it. The court a quo erred in upholding that decision. The judgment must be vacated.

Accordingly, it is ordered as follows:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“(a) The appeal be and is hereby allowed with costs.

(b) The judgment of the Disciplinary Authority, per Honourable W. Mandinde, be and is hereby set aside and is substituted with the following:

'(i) The finding of guilty by the Disciplinary Authority, and the resultant dismissal of the appellant from employment, be and is hereby set aside.

(ii) The appellant be and is hereby reinstated without loss of salary and benefits from the date of suspension, being the 20th of September 2019.

(iii) In the event that reinstatement is no longer tenable, the respondent shall pay the appellant damages in lieu of reinstatement, to be agreed between the parties, failing which either party may approach the court a quo for quantification.'”

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

The appellant appeals against the whole judgment of the Labour Court (the court a quo), which was handed down on 9 January 2015. The court a quo dismissed his appeal against the determination of the disciplinary authority, which found him guilty of misconduct and dismissed him from employment.The FactsThe appellant ...

The Facts

The appellant was employed by the respondent as a Sales Distribution Services Manager. He was suspended from employment without any salary or benefits on 13 December 2010. On 4 January 2011, he was charged, by the disciplinary authority, with an act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in contravention of section 4(a) of the Labour (National Code of Conduct) S.I.15/2006 (the National Employment Code).

He was alleged to have authorized the dispatch of seed maize valued at US$931,735=06 on credit to Nelmah Holdings (Pvt) Ltd (the agro-dealer) in violation of the requisite internal procedures of the respondent.

He contested the charge, but, was subsequently convicted thereof, on 13 January 2011, and dismissed with effect from the date of suspension.

He was legally represented at the hearing.

He raised two defences:

(i) The first was that he was verbally authorized by his immediate supervisor, Ivan Craig, to dispatch the seed maize to the agro-dealer.

(ii) The second was that the respondent's electronic credit management system broke down and disabled him from detecting the breach of the credit limit of the agro-dealer and stop the sales transactions in real time.

He, however, conceded that he was well versed with the respondent's manual pre-credit check system.

The disciplinary authority found his “evidence to be full of inconsistencies” and his “conduct reckless”. It held, that, Ivan Craig did not authorize him to dispatch the seed maize to the agro-dealer.

It was common cause, that, the appellant did not conduct any pre-credit checks. It was also common cause, that, the manual pre-credit checks preceded the credit sales and the electronic notification of the breach of a credit sale. It was further common cause, that, the respondent's electronic sales management system was down and could not, therefore, alert the Sales Office of any credit limit breach in real time.

The disciplinary authority found, that, by virtue of his seniority, the appellant knew the manual, internal pre-credit checking procedures required of him before he could authorize the sale of seed maize on credit. It, therefore held, that, the failure of the electronic system to flag the breach would not absolve him from physically verifying the credit limit and status of the agro-dealer before authorizing the sale.

Lastly, it found that even though the electronic warning system was down, he ignored the verbal warning given to him by the Credit Controller, one Thomas Mavhurumutse, on 22 October 2010 and on 28 October 2010, that, the agro-dealer had exceeded its credit limit. He, therefore, failed to stop any further deliveries to the prejudice of the respondent.

He was thus convicted of misconduct and duly dismissed from employment.

Aggrieved by the determination of the disciplinary authority, he filed an appeal and an application for review in the court a quo, raising 15 grounds of appeal against conviction, an additional 5 grounds against the penalty, and, a further, 4 grounds of review.

The Contentions a quo

In the court a quo, counsel for the appellant impugned the disciplinary authority's factual findings on the basis, that, they constituted a gross misdirection, which amounted to a misdirection of law to which no sensible court applying its mind to the facts would have made.

He contended, that, the disciplinary authority incorrectly found that the appellant had mero motu authorized the dispatch of seed maize to the agro-dealer. He argued, that, the appellant had acted, as he was wont to do, on the verbal instruction of his immediate supervisor.

He contended, that, the contrary finding of the disciplinary authority ignored the testimony of Thomas Mavhurumutse and the contents of the input credit application forms submitted by the agro-dealer for its respective winter wheat and summer maize programs.

He argued, that, Thomas Mavhurumutse and the agro-dealer's representatives confirmed, that, Ivan Craig had verbally authorized the appellant to sell seed maize on credit.

He further argued, that, Ivan Craig's signature, for and on behalf of the respondent, on the summer maize application form signified two things:

(i) Firstly, the execution of a binding contract between the agro-dealer and the respondent.

(ii) Secondly, the written authorization by Ivan Craig to sell maize seed to the agro-dealer on credit.

He also contended, that, Bramwell Bushu, who replaced Ivan Craig as his immediate supervisor, had prior knowledge of the agro-dealer's credit transaction. This, so he argued, was demonstrated by the letter written to the agro-dealer by Bramwell Bushu on 6 October 2010. In the letter, Bramwell Bushu affirmed the respondent's ability to supply the agro dealer's seed maize requirements, specified in its letter dated 5 October 2010.

Counsel further argued, that, the failure by the respondent's electronic sales management system to block the excessive credit sales led the appellant to believe, that, it had an extant credit limit that had not yet been reached.

The appellant did not motivate any of his grounds of review in his main written heads of argument a quo. He was prompted to do so in his supplementary heads, which he filed in response to the respondent's heads.

He, therein, strenuously argued, that, his references to the conduct of Bramwell Bushu, which only came to his attention after the disciplinary proceedings, established his four grounds for review.

The only relevant ground for review was that Bramwell Bushu was an interested and biased party, who, for that reason, could not have represented the respondent as the complainant in the disciplinary proceedings. This was because he had concealed his letter of 6 October 2010 from the disciplinary authority.

The other three grounds for review related to the subsequent fraud charges levelled against Bramwell Bushu after the hearing, and the recovery efforts the appellant purportedly initiated and negotiated with the agro-dealer, after the misconduct came to light.

Per contra, the respondent made the following contentions in its written heads of argument a quo.

The application for review was fatally defective in that it sought to introduce new evidence which was not before the disciplinary authority.

This evidence, comprised the arrest of Bramwell Bushu for fraud, arising from the same transactions, subsequent to the disciplinary proceedings, and his letter of 6 October 2010.

The letter did not constitute a credit guarantee letter but was a supply guarantee letter.

In any event, the new evidence was not only irrelevant to the resolution of the dispute before the disciplinary authority but also negated the hallowed principle of finality to litigation.

It was improper for the appellant to seek to try out new issues on fresh facts simply because the first set of facts had proved inadequate.

The remaining grounds of review did not impugn the manner in which the disciplinary proceedings were conducted. They raised mitigatory factors, which rightly fall into the ambit of an appeal against sentence rather than the legality, procedural propriety, and rationality of the hearing.

Regarding the appeal, it argued that the determination was rationally linked to the facts and evidence and could not be interfered with on appeal. It submitted, that, the appellant was correctly convicted and rightly dismissed, because, the offence went to the substratum of and destroyed the employment relationship between the parties.

The findings of the court a quo

The court a quo reduced 15 grounds of appeal to a single issue of whether the hearing officer grossly misdirected himself by convicting the appellant on the evidence that was placed before him. Likewise, the issue raised against sentence was whether or not the sentence of dismissal was appropriate.

It held, that, the review grounds did not constitute proper grounds of review.

It however regarded them as abandoned as they had not been motivated, but, did not make a determination on the application.

Regarding the appeal, the court a quo held, that, the appellant authorized credit sales above the agro-dealer's US$20,000 limit. He did so without adhering to the prevailing manual procedures - which were known to him. He was required to follow them before authorizing the sale. The electronic credit sales management system would only be activated subsequent to the mandatory manual pre-credit checks. The malfunctioning of the electronic system did not, therefore, absolve him from making the manual pre-credit checks.

It also upheld the factual findings of the disciplinary authority, that, Ivan Craig did not authorize any sales in excess of the agro-dealer's credit limit. The findings were supported by the oral and written testimonies of Ivan Craig, Thomas Mavhurumutse, Melody, Locadia Marongwe and Muzadzi who all interacted with the appellant at all material times.

They were also confirmed by the documentary evidence and the probabilities.

It further found, that, the agro-dealer could not have concluded a summer seed maize credit sale contract with the respondent, as suggested for the first time on appeal by the appellant, without submitting the required credit insurance cover.

The court a quo further found, that, the probabilities demonstrated that the appellant's conversation with Ivan Craig, over the Zimbabwe Farmers Union (ZFU) seed maize voucher program, could not reasonably be construed as constituting the disputed verbal authorization. The court a quo, therefore, held that the appellant had disingenuously authorized the credit sale for the benefit of the agro-dealer in lieu of the ZFU voucher program.

By consent, the parties called, on appeal, the evidence of Ivan Craig and Bramwell Bushu and produced the letter written by the agro-dealer on 5 October 2010 and Bramwell Bushu's 6 October 2010 reply.

It found, that, Bramwell Bushu's reply did not constitute the requisite authority to open a credit sales trading account; its absence at the disciplinary hearing did not prejudice the appellant and its production thereat would have served no useful purpose.

The court a quo, consequently, dismissed the appeal with no order as to costs. It, however, did not pronounce itself on the application for review.

The grounds of appeal

Irked by the decision of the court a quo, the appellant appeals to this court on the following grounds of appeal:

“1. The court a quo erred at law in confirming the appellant's dismissal when there was no evidence that the appellant acted in a manner inconsistent with the fulfillment of the express or implied conditions of his contract of employment.

2. The court a quo erred at law in confirming the appellant's dismissal contrary to the evidence of Ivan Craig and Bramwell Bushu which exonerated the appellant of any wrongdoing.

3. The court a quo erred at law in confirming the appellant's dismissal for misconduct, yet the record clearly shows that appellant sought authorization before dispatching seed to Nelmah.”

He seeks the success of the appeal with costs, the vacation of the court a quo's judgment, and its substitution with an order granting both the appeal and the application for review with costs, his reinstatement with salary and other benefits, alternatively, damages, which may be computed by the Labour Court, if the parties fail to agree thereon within 30 days of the substituted order.

At the commencement of the hearing, counsel for the appellant moved for the addition of two other grounds of appeal. After some initial opposition, counsel for the respondent conceded to the addition thereof.

Consequently, the following two grounds of appeal were, by consent, added to the notice of appeal as numbers:

(4) The court a quo erred in finding, that, the appellant's first ground of review, alleging interest in the cause, did not raise a review ground, and, a fortiori, having heard new evidence on review, in failing to record the full evidence given by the parties and to determine the effect of the new evidence on that review ground; and

(5) The court a quo erred in groundlessly commenting, that, the review application had been abandoned and in leaving the same hanging and undetermined.

The contentions before this Court

The preliminary applications

At the commencement of the hearing before this Court, counsel for the appellant took two preliminary applications:

(i) Firstly, he sought the vacation of the judgment of the court a quo and the remittal of the matter before a different judge.

This was because of the common cause fact, that, the transcript of the proceedings and notes of the presiding judge a quo could not be located after diligent search. The transcript and the notes could also not be reconstructed due to the 5-year time lapse between the dates on which judgment was handed down and the request for reconstruction was made.

(ii) Secondly, he sought the amendment of the notice of appeal by the addition of the two grounds that are set out in paragraph (18), above.

After interacting with the Court, counsel for the appellant abandoned the first application. He conceded, that, it was in the interests of the due administration of justice that there be finality to this matter, which has been raging between the parties for the past decade. It was therefore dismissed.

The second application was, however, granted by consent.

The substantive contentions on the merits

On the merits, counsel for the appellant contended, that, the conviction was not established by the evidence called at the disciplinary hearing.

He argued, that, Ivan Craig and Bramwell Bushu exonerated the appellant of any wrongdoing.

He strenuously argued, that, the court a quo did not properly assess the common cause evidence of the telephonic conversation between Ivan Craig and the appellant, which took place when the appellant was in the company of Nyathi and the agro-dealer's Mahupete.

He submitted, that, a proper consideration of the evidence would have led to the inevitable conclusion, that, Ivan Craig had verbally authorized the sales transaction and resulted in the appellant's acquittal.

He also argued, that, an acquittal would also have followed from the correct appreciation of the minutes of the meeting held at Wild Geese Lodge on 15 December 2010 between the top management of the respondent and the agro-dealer.

Regarding the two additional grounds of appeal, counsel for the appellant argued, that, they raise the issue of whether or not the review application was dealt with and the manner of its disposal.

The review grounds concerned the alleged interest and bias of Bramwell Bushu, who acted as the complainant at the hearing. Counsel argued, that, the non-disclosure of Bramwell Bushu's letter of 6 October 2010, and of his arrest for fraud ex post facto the hearing, constituted a gross misdirection by the disciplinary authority.

He, however, failed to articulate how the disciplinary authority's failure to consider evidence that was never placed before it could ever amount to a misdirection.

He also argued, that, the failure to make a substantive order on the application for review was a misdirection which would be subject to correction by this Court.

Counsel for the respondent made the following contrary submissions.

The evidence on record confirmed, that, the appellant was guilty of the misconduct for which he was charged with. The evidence of Ivan Craig, Bramwell Bushu, Muzadzi and Locadia Marongwe implicated him of wrong doing. The tele conversation between Ivan Craig and the appellant, on 19 October 2010, which preceded the first dispatch of seed maize, and the minutes of the meeting at the Wild Geese Lodge, did not exonerate him of any wrong-doing. His assertion that he did not have access to the credit limit modules was controverted by Melody and Thomas Mavhurumutse. In any event, it was common cause, that, he never conducted the pre-creditworthiness checks required of him before authorizing the dispatch of the seed maize.

He further submitted, that, the two additional grounds of appeal could not properly be related to by this Court in view of the finding a quo, that, the appellant had abandoned the application for review.

He submitted, that, the court a quo dealt with the application for review and concluded that it had been abandoned.

He argued, that, the court a quo only assessed the evidence of the two witnesses that were called before it in the context of an appeal and not of an application for review.

He further contended, that, the appellant's failure to assail the finding on abandonment is fatal to his case.

He therefore implored the Court to dismiss the appeal in its entirety.

The Issues

The two issues that arise from the grounds of appeal are;

(i) Firstly, whether the court a quo correctly upheld the conviction of the appellant, which resulted in his dismissal from employment; and

(ii) Secondly, whether the application for review was abandoned and a substantive order pronounced a quo.

Analysis

Whether or not the court a quo correctly upheld the conviction of misconduct and dismissal from employment

It is trite, that, an Appeal Court will not lightly interfere with the factual findings of a trial court unless that court is found to have proceeded on some material mis-appreciation or mis-application of the law and/or the facts, or where it has relied on some extraneous or irrelevant consideration, or has failed to take into account some particularly relevant matter: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, and Zimbabwe Homeless People's Federation et al v Minister of Local Government and National Housing & Ors SC94-20…,.

The disciplinary authority made the following findings.

The tele conversation between the appellant and Ivan Craig, on 19 October 2010, related to the supply of seed maize to the Zimbabwe Farmers Union's Nyathi (ZFU). Ivan Craig confirmed, that, the respondent had an extant voucher program with the ZFU and not the agro-dealer. The seed maize for the voucher programme would be drawn down on the trading account of the ZFU, but, there were no vouchers or orders bearing the ZFU stamp and the signatures of its signatories.

The appellant mero motu demanded vouchers from the agro-dealer and proceeded to sell seed maize to it on credit.

He was duty bound to conduct manual pre-creditworthiness checks of the agro-dealer before he could authorize his subordinates to sell seed maize to it on credit. He was warned by the credit controller, Thomas Mavhurumutse, when the credit limit exceeded the authorized limit of US$20,000 by US$83,936=90 on 22 October 2010, and by US$489,000 on 28 October 2010.

He ignored both warnings.

In any event, he had no reason to mero motu stop further deliveries of seed maize, on 30 October 2010, if his version that he had been authorized to accord unlimited credit to the agro-dealer was true.

The ratio decidendi of the court a quo, in respect of the conviction, is found at page 145 of the appeal record. The court stated that:

“In the present case, if the evidence led is accepted, it does not appear that the decision arrived at was outrageous in its defiance of logic. The defence to the charge was that Ivan Craig had authorized the purchase by Nelma. He denies it, and his denial is supported by other witnesses. It is also supported by the fact, that, Nelma did not have a good history as a credit customer. This was known to the appellant. The so-called authority, as explained by the appellant himself, does not strictly refer to Nelma but to Mr Nyathi and ZFU. Whichever way the matter is taken, the appellant had a duty to check on the credit limit. He had to know that in order to monitor. In the light of all this, the decision to convict does not sound wrong.”

The court a quo thus confirmed the factual findings of the disciplinary authority.

The confirmation is indeed supported by the oral testimony of the witnesses, the documentary evidence, and the probabilities of the case that was before the disciplinary authority. Its findings do not fall into the ambit of those that are so outrageous in their defiance of logic or accepted moral standards that no sensible court applying its mind to the questions at issue could have arrived at.

We are therefore satisfied, that, he was properly convicted by the disciplinary authority and that the court a quo correctly upheld the conviction. The first three grounds of appeal are therefore devoid of merit and ought to be dismissed.

It is noteworthy, that, the appellant did not impugn the penalty of dismissal in his grounds of appeal. We therefore uphold it....,.

1....,.

2. The appeal against conviction is dismissed in its entirety.

SC122-23 : BERNARD KUJINGA vs OLD MUTUAL LIFE ASSURANCE (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

This is an appeal against the whole judgment of the Labour Court (the court a quo) handed down on 4 June 2021 wherein the court upheld the appellant's dismissal from employment by the respondent on the basis that he had engaged in misconduct which was contrary to the express and ...

FACTUAL BACKGROUND

The appellant is a former employee of the respondent, which is a company duly incorporated under the laws of Zimbabwe and operates in the insurance and financial services sector. He was employed by the respondent as an Accounts Administrator based at Old Mutual Gardens, Emerald Hill, Harare.

He was also a workers representative in the Old Mutual Workers Committee (the Workers Committee).

On 24 July 2019, the appellant was suspended from work on the basis that his employer had good cause to believe that he had committed acts of misconduct in terms of the Old Mutual Code of Conduct and Grievance Procedure (the Code).

The events leading to the charges of misconduct are as follows:

A Works Council meeting was held on 8 July 2019, and it was attended by members of the Workers Committee. At the meeting, management advised that it had resolved to increase the employees salaries by 45 percent; which salary increase was communicated, via email, to all workers, by the Group Chief Executive (the GCE) on the same day.

Disgruntled by the resolution on the salary increment, four of the respondent's employees from the Workers Committee went to see the Human Capital Consultant (the HCC) on the morning of 9 July 2019 and stated that the workers were demanding to see the Human Capital Executive (the HCE) in relation to the salary increment.

The appellant was alleged to have made common cause with these four employees, in that they misrepresented to, and mobilized, the rest of the employees to gather in the staff canteen under the guise that the Human Capital Executive (HCE) wanted to address them on the issue of salaries.

The issue of the sit-in reached the Group Chief Operating Officer (the GCOO), who convened an urgent meeting with the management and the members of the Workers Committee.

The appellant and his colleagues were directed to disperse the employees gathered at the canteen whilst management dealt with the issue of the salary increment.

The appellant, and his colleagues, are said to have refused to leave the Human Capital Executive's office, and, instead, demanded that she addresses the employees gathered in the canteen.

The employees only dispersed after the Designated Agent from the National Employment Council read to them a memorandum drafted by management, which instructed them to return to work or risk disciplinary action.

The employees had, however, spent the greater part of the day congregated in the canteen.

In light of these events, the appellant was suspended from work, in terms of section 12.2 of the Old Mutual Code of Conduct and Grievance Procedure, and investigations into his conduct were instituted.

On 1 August 2019, the appellant was charged with contravening section 15.9.1 of the Old Mutual Code of Conduct and Grievance Procedure for “failure to fulfil the express or implied conditions of the contract of employment or any breach of the employment contract.”

This charge was grounded on clause 8 of the appellant's contract of employment, which provides, that, the employee should perform his/her duties in the best interests of the respondent and refrain from any action which could, in any manner, harm the good name and reputation of the respondent.

A disciplinary hearing was conducted.

Evidence was led against the appellant to the effect that he had misrepresented to the Human Capital Executive (HCE) that employees were demanding to be addressed by him in the staff canteen. He was also alleged to have misrepresented to the employees that the HCE wanted to address them in the canteen.

In addition, the appellant was alleged to have instigated an illegal collective job action by encouraging the employees to stay in the canteen on the premise that the Human Capital Executive (HCE) was coming to address them.

The respondent claimed that the appellant's actions had tarnished its image.

Per contra, the appellant denied that he misrepresented facts to the Human Capital Consultant (HCC) as the elements of misrepresentation were not established.

He argued that the CCTV video evidence produced by the respondent did not confirm that he had mobilised employees to assemble in the canteen, but, rather, that the employees had already started moving out, and that he was not part of the delegation that went to the Human Capital Consultant (HCC).

The appellant also argued, that, he had acted within his mandate, as a Workers Committee member, when he approached the Human Capital Executive (HCE) and subsequently communicated to the employees their employer's response to the issue of salary increment.

The appellant contended, that, the respondent was victimizing him for executing his duties as a Workers Committee member.

In addition to the above, the appellant denied instigating an unlawful collective job action. Instead, he claimed to have acted upon the employer's request for a meeting with the respondent's executives which he duly attended.

The appellant claimed that his conduct was not inconsistent with the terms of his contract of employment. In addition, the appellant argued that as he had heeded the call to return to work, or face disciplinary action, the charges against him should have been withdrawn.

The Hearing Officer found that the appellant had misrepresented facts and directed the employees to gather in the canteen for an address by the Human Capital Executive (HCE). He further held, that, the CCTV video evidence established that the employees started going to the canteen after the workers representatives had met with the HCE. It was further held, that, the appellant and his colleagues had staged a sit-in in the Human Capital Executive's personal assistant's office after the HCE's refusal to address the employees in the canteen, and, as a result, they had stayed away from their work stations and had withdrawn labour.

This was held to be contrary to the appellant's express or implied terms of his employment contract.

The Hearing Officer also found, that, after being told that the Human Capital Executive (HCE) would not address the employees, the appellant failed, neglected and/or refused to give such feedback to the employees, which failure abetted the continued illegal withdrawal of labour by the employees.

In addition, the Hearing Officer held that the appellant had assisted in the instigation of collective job action, which was illegal as there was no compliance with section 104(2)(a) and (b) of the Labour Act [Chapter 28:01].

Nevertheless, the Hearing Officer held that the appellant was being charged with 'failure to fulfil the express or implied conditions of the employment contract or any breach of the employment contract' which arose from his gross lack of honesty and integrity by misrepresenting facts to management and other employees, thereby putting the respondent's name into disrepute.

In conclusion, the Hearing Officer held that the appellant's conduct was unacceptable to the employer as it went to the root of his employment contract, thus ruining the relationship with the employer.

The Hearing Officer found him guilty as charged and terminated his employment with the respondent with effect from 26 July 2019.

The appellant lodged an internal appeal against the Hearing Officer's decision, raising 12 grounds of appeal.

In the determination handed down on 2 October 2019, the Appeals Officer made a preliminary finding that the appeal was dismissible from the onset on the basis that the appellant failed to challenge some critical findings made by the Hearing Officer.

On the merits, the Appeals Officer found that some of the appellant's grounds of appeal were repetitive. He also found that there was no specific ground of appeal challenging what had transpired in the Human Capital Executive's office.

In summary, the Appeals Officer found that the Workers Committee members lied to both the employer and employees about a proposed meeting in the canteen.

The Appeals Officer upheld the verdict of the Hearing Officer and also found, that, the issue of sentence was at the discretion of the employer. Consequently, the appeal was dismissed.

The appellant noted an appeal to the Labour Court (the court a quo).

He submitted that the respondent had failed to address the employees who gathered in the canteen, which inevitably led to loss of production. Thus, the appellant contended that the respondent was the author of its own misfortunes.

The appellant further argued, that, it had not been established that he had misrepresented facts to both the employer and the employees. He contended that the elements of misrepresentation had not been proven.

In addition, the appellant contended that the allegation that he was acting in concert with his fellow colleagues was unfounded and not supported by any evidence on record.

The appellant also argued, that, the memorandum read out by the Designated Agent was a waiver of the respondent's right to discipline him.

He thus argued that the respondent was estopped from proceeding with the disciplinary hearing against him.

The appellant also argued, that, he had complied with the dictates of the memorandum. and thus contended that, the Appeals Officer had grossly misdirected himself when he failed to note that the Disciplinary Committee was improperly constituted.

He further argued, that, he was being victimized for exercising his rights as a Workers Committee member.

In conclusion, the appellant argued that the penalty of dismissal was punitive as he was not guilty of the offence he was charged with.

Regarding the first ground of appeal, the court a quo held that it lacked clarity. As a result, that ground was struck out.

In relation to the second ground, which challenged the factual findings which had been upheld by the Appeals Officer, the court a quo found that the appellant played an integral part in planning and executing the scheme of gathering employees at the canteen and have management address them there.

The court a quo thus held, that, there was no basis for overturning the Appeals Officer's decision to uphold the Hearing Officer's findings.

In relation to the third ground of appeal, the court a quo held that the Appeals Officer had correctly found that the appellant had been dismissed from employment, not because of collective job action, but, on the basis of the misrepresentations he had made which led to the gathering.

The court a quo also held, that, being a Workers Committee member did not insulate the appellant from disciplinary action, hence, his claims that he had been dismissed from employment, as victimisation for being a Workers Committee member, were held to be meritless.

In addition, the court a quo held that the appellant's conduct demonstrated a high level of dishonesty and disrespect for authority, went to the root of the employment contract, and made the continuation of the working relationship untenable.

As a result, the court a quo held that it could not interfere with the penalty of dismissal imposed by the respondent. Consequently, the appeal was dismissed.

It is this decision which the appellant now seeks to set aside on the following grounds of appeal:

“GROUNDS OF APPEAL

The appellant's grounds of appeal are as follows:

1. The court a quo made a gross misdirection in holding, despite compelling evidence to the contrary, that appellant was excluded from the waiver granted by the employer concerning the alleged unlawful ensemble, whereas appellant was covered as the waiver covered all employees.

2. The court a quo erred in law in upholding the dismissal of appellant for alleged dishonest conduct inconsistent with his contract of employment, whereas, in the circumstances, appellant was lawfully and bona fide executing his role as a workers representative.

3. The court a quo erred in upholding the penalty of dismissal, whereas, in the circumstances, the exercise of discretion in favor of dismissal by the lower tribunal was unfair and irrational, regard being had to:

(i) That, applicant was exercising a workers representative role in circumstances of an industrial emergency.

(ii) Appellant's favorable mitigation submissions and record of service.”

Before this Court, the following submissions were made.

APPELLANT'S SUBMISSIONS

At the hearing of the present appeal, counsel for the appellant submitted, that, he would not persist with the first ground of appeal, under which it was contended that the respondent had waived its right to discipline the appellant through a notice read out to the employees by the Designated Agent.

This was in light of this Court's decision in the similar case of Chabvamuperu v Old Mutual Life Assurance (Pvt) Ltd SC12-23, that there was no waiver from disciplinary action given by the respondent.

In relation to the second ground of appeal, counsel for the appellant submitted that whilst in Chabvamuperu v Old Mutual Life Assurance (Pvt) Ltd SC12-23, the Workers Committee members had been found guilty of mobilizing the employees and making misrepresentations to both the respondent and the employees, the appellant in casu was not involved in the initial meeting which resulted in the employees gathering in the canteen.

Counsel submitted, that, the appellant only got involved in the two-hour sit in and attended the subsequent meeting with the Group Chief Operating Officer in pursuance of his duties as a Workers Committee representative.

Counsel for the appellant argued, that, the appellant had relative immunity from disciplinary action in terms of section 65(2) of the Constitution of Zimbabwe, as he was bona fide executing his duties as a Workers Committee representative.

He argued, that, the appellant had only acted basing on what his fellow members of the Workers Committee had told him.

In addition, counsel submitted that the mitigatory circumstances of the appellant ought to have been taken into account during sentencing, in line with section 12B(4) of the Labour Act [Chapter 28:01].

Counsel for the appellant contended, that, in the circumstances of the case, the penalty of dismissal was harsh.

RESPONDENT'S SUBMISSIONS

Per contra, counsel for the respondent argued that the appellant had not appealed against the finding that he was guilty of dishonesty arising from misrepresentations and misleading the other employees and management, and that, he merely claimed that he was exercising his role as a Workers Committee member.

Counsel further submitted, that, the appellant had ample opportunity to disengage from further lying to management and the employees when management repeatedly informed him and his colleagues that they had not called for an address and that the gathering by the employees was unlawful.

Additionally, counsel for the respondent contended that section 65(2) of the Constitution of Zimbabwe did not clothe Workers Committee members with absolute immunity from disciplinary action as they are expected to execute their duties in a lawful manner.

APPLICATION OF THE LAW TO THE FACTS

Whether or not the appellant had absolute immunity from disciplinary action in terms of section 65(2) of the Constitution of Zimbabwe, 2013

Counsel for the appellant argued, that, since the appellant was a workers representative, he had relative immunity from disciplinary action in terms of section 65(2) of the Constitution of Zimbabwe, 2013 (“the Constitution”).

The provision states as follows:

“Except for members of security services, every person has the right to form and join trade unions and employee or employers organisations of their choice and to participate in lawful activities of those unions and organisations.”

The import of the above provision is that although every person is permitted to be a member of a trade union, as such, one is obliged to only participate in activities that are lawful. In the event that a person participates in unlawful activities, disciplinary action can be taken against such a person.

The fact that a person is a workers representative does not mean that he or she is immune from disciplinary action. If a workers representative is involved in an unlawful activity, then, he or she is subject to disciplinary action.

Commenting on the import of section 65(2) of the Constitution, in the case of Zimbabwe Banks & Workers Union & Anor v Marimo & Ors CC08-21 GOWORA JCC stated the following…,.:

“My reading of the subsection does not suggest, by any stretch of the imagination, that employees are given carte blanche by the Constitution to breach their contracts of employment and provisions contained in codes of conduct and thus create havoc or anarchy within the workplace under the guise of furthering the interests of workers and the union.

The employer-employee relationship is sacrosanct and based on trust. The employee is therefore obliged to act in good faith and in a manner that is consistent with the interests of his or her employer.

The fact that an employee is a member of a trade union, or is a workers representative, does not sever the employment relationship. It does not qualify any of the obligations and duties that each owes the other under the contract of employment. The terms of the contract of employment define the ambit of the parties relationship. To place the employee's status as a union member, or workers representative, above that of the employment contract, would be to subsume the contract of employment under such membership.

That cannot be a correct position of the law as it pertains to employment contracts….,.

Section 65(2), upon which the applicants seek reliance for the alleged violation of the fundamental rights of employees in the workplace, does indeed protect the right of every person to form, join, and participate in the activities of trade unions or employer organisations. The rider to the right is that such participation must be clothed with legality.

The applicants counsel was pressed on this issue and was constrained to concede, that, the activities protected under section 65(2) must be lawful. It was pertinent to note that applicants counsel admitted that the participation of the second applicant, or his colleagues, in an illegal strike, would not be the lawful activities contemplated by the section for protection.”

Based on the above authority, the appellant's actions were tainted with illegality. As such, he was not immune from disciplinary action as he acted outside the confines of the law.

It is settled, that, workers representatives are not immune to disciplinary action in circumstances where they have engaged in acts of misconduct.

As was stated by CHIDYAUSIKU CJ in the case of Zimbabwe Electricity Supply Authority v Mare SC43-05..,.:

“In my view, members of the Workers Committee are not a law unto themselves…,. I accept that a member of the Workers Committee has a duty to defend workers rights. In defending the rights of the workers, a member of the Workers Committee is enjoined to observe due process.”

The court is therefore inclined to agree with counsel for the respondent's submission, that, section 65(2) of the Constitution does not clothe the workers representative with absolute immunity.

Whether or not the court a quo erred by upholding the appellant's dismissal from employment

The above issue emanates from the second and third grounds of appeal.

It is the appellant's contention, that, the court a quo failed to find that the conviction and dismissal of the appellant was tantamount to victimization for exercising his role as a Workers Committee member.

In addition, the appellant is of the view that the court a quo did not weigh the evidence before it to determine whether it established that the appellant had made misrepresentations to the respondent and the other employees.

In respect of the third ground of appeal, counsel for the appellant submitted, that, the court a quo erred in upholding the penalty of dismissal as the court had authority to interfere with the penalty in terms of section 12B(4) of the Labour Act. He further argued that the penalty was harsh and unfair in the circumstances.

The court's considered view is that the issues raised in the second and third grounds of appeal can be resolved by determining whether or not the court a quo correctly found that the appellant was guilty of the acts of misconduct he was charged with.

It is trite that the degree of proof in labour issues is on a balance of probabilities.

In the case of British American Tobacco Zimbabwe v Chibaya SC30-19 the court cited the case of Miller v Minister of Pensions [1947] 2 AII ER 372, 374 wherein the following was said regarding proof on a balance of probabilities:

“It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but, if the probabilities are equal it is not.”

In casu, the evidence on record established that the appellant was not involved in the initial Workers Committee meeting in which the members resolved to misrepresent to the respondent that the employees wanted to be addressed by management on the issue of the salary increments, and to the employees, that management wanted to address them.

This was the appellant's testimony during the disciplinary hearing, which testimony was supported by the evidence of Mr Nzombe, Basil Machocho, and Don Chabvamuperu.

That notwithstanding, the appellant was part of the delegation that staged a sit-in in the Human Capital Executive's office and refused to leave until management had addressed the employees gathered in the canteen.

Although the appellant might not have been part of the misrepresentations in the beginning of the scheme, he did participate in continuing to misrepresent to management that the employees were demanding to be addressed when that was, to his knowledge, an unfounded lie.

In the case of Anthony Makintosh v The Chairman, Environmental Management Committee of City of Harare & Anor SC12-14…, this Court held that:

“An Appeal Court will only interfere with a decision which involves the exercise of discretion by a lower court in very limited circumstances. These were set out by this Court in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) at p62-63, where the court said:

'The attack upon the determination of the learned judge, that, there were no special circumstances for preferring the second purchaser above the first, one which clearly involved the exercise of a judicial discretion, may only be interfered with on limited grounds: see Farmers Co-operative Society (Reg.) v Berry 1912 AD 343 at 350.

These grounds are firmly entrenched.

It is not enough that the Appellate Court considers, that, if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account relevant some consideration, then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution, provided always has the materials for so doing.

In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court.'”

An analysis of the facts leads to the conclusion, that, there was no misdirection by the court a quo in upholding the decision of the Appeals Officer. Accordingly, the court a quo cannot be faulted for upholding the finding that the appellant misrepresented facts to the respondent and to the respondent's workforce.

In addition, in respect of the appellant's allegations of victimization for executing his duties as a Workers Committee representative, it is our view that the appellant was not victimized as he was procedurally punished for committing acts of misconduct.

As already sated above, whilst it is trite that members of the Workers Committee ought not to be victimized for acting in their representative capacities, it is also settled that they are not immune from disciplinary action in circumstances where they have engaged in acts of misconduct.

Thus, members of the Workers Committee must carry out their duties within the confines of the law.

The appellant, and his colleagues, ought to have utilized the proper channels of communication put in place by the respondent in seeking to have management address the issue of the salary increment. Resorting to misrepresentations was not necessary under the circumstances, and constituted acts of misconduct. The appellant, and his colleagues, acted unlawfully by peddling false information to the employees and management, which resulted in the respondent losing a day's worth of production.

In addition, the imposition of a sentence is in the discretion of the disciplinary tribunal.

This was aptly captured in the case of Delta Beverages (Pvt) Ltd v Shumba SC167-20…, wherein it was held that:

“The question of an appropriate penalty to pass is within the discretion of the employer - where an employee commits a dismissible act of misconduct. For an Appellate Court to interfere with the penalty imposed by the employer, in the exercise of its discretion, there needs to be proof that the exercise of the discretion was impeachable.”

As a result of the appellant being convicted of misconduct that involved dishonesty, and which specifically goes to the root of the contract of employment, the respondent was at liberty to sever ties with the appellant and hand down a sentence of dismissal from employment.

This is in accordance with what the court stated in the case of Standard Chartered Bank Zimbabwe Limited v Musanhu 2005 (1) ZLR 43 (S)…, where MALABA JA…, quoted with approval the case of Pearce v Foster 1886 QB 536 at 53G where it was held that:

“…, if the servant's conduct is so grossly immoral that all reasonable men would say that he cannot be trusted, the master may dismiss him.”

It is therefore our view, that, the sentence imposed on the appellant was appropriate and the court a quo did not err by finding that it was limited in its interference with the imposed sentence.

This is so as there was no justification for the court a quo to interfere with the sentence.

In addition, it is important to note that the appellant sought to criticize the Appeals Officer's judgment and yet the Notice of Appeal is silent on that issue.

DISPOSITION

The appellant abandoned the first ground of appeal. We are satisfied that there is no misdirection in the court a quo's decision. The remaining grounds of appeal have no merit.

As is the general norm, costs will follow the event.

In the result, it is ordered that the appeal be and is hereby dismissed with costs.

SC126-23 : GODFREY MUGARI vs CHINHOYI UNIVERSITY OF TECHNOLOGY
Ruled By: CHITAKUNYE JA

This is an opposed chamber application for condonation for late filing of an application for leave to appeal and leave to appeal in terms of Rule 60 and 61 of the Supreme Court Rules 2018.At the conclusion of hearing on 31 August 2023, I gave an ex-tempore judgment dismissing the ...

This is an opposed chamber application for condonation for late filing of an application for leave to appeal and leave to appeal in terms of Rule 60 and 61 of the Supreme Court Rules 2018.

At the conclusion of hearing on 31 August 2023, I gave an ex-tempore judgment dismissing the application with costs. The applicant has requested for the written reasons for the decision. These are they.

THE FACTS

The applicant was formerly employed by the respondent as a lecturer. In 2018, he was charged with four counts of misconduct. The disciplinary proceedings were conducted in terms of the Labour (National Employment Code of Conduct) Regulations 2006, Statutory Instrument 15 of 2006.

He was duly convicted of two of the counts and acquitted of the other two counts by an internal Disciplinary Authority.

Dissatisfied with the internal Disciplinary Authority's determination on the two counts upon which he was convicted and dismissed from employment, he appealed to an internal Appeals Committee which upheld the Disciplinary Authority's decision.

Further dissatisfied by the decision of the Appeals Committee, he referred the matter to a Labour Officer and eventually to the Labour Court.

The Labour Court's decision was not to his satisfaction, hence, he appealed to this Court in SC236/20.

On 13 November 2020, this Court issued an order, by consent, setting aside the proceedings that had been undertaken before the Labour Officer and the Labour Court as such proceedings were held to have been nullities.

The applicant thereafter filed a new appeal to the Labour Court against the determination of the internal Disciplinary Authority and the upholding of that decision by the internal Appeals Committee.

On 8 February 2022, the Labour Court dismissed the applicant's appeal in an ex tempore judgement. Upon his request, written reasons for judgment were provided on 11 March 2022.

The applicant belatedly sought leave to appeal, but, that initial application was struck off the roll as he was out of time and had not sought condonation for the late filing of such an application.

The applicant subsequently filed an application for condonation for failure to seek leave within the period prescribed by the Rules and for leave to appeal in the Labour Court on 23 June 2022.

That application was dismissed by the Labour Court on 6 June 2023.

In terms of the proviso to Rule 60(2) of the Supreme Court Rules 2018, the applicant had ten (10) days within which to approach this Court for leave to appeal against the Labour Court's judgment from the date of the dismissal of his application by the Labour Court.

The applicant's initial application, in SC378/23, was fatally defective and was struck off the roll on 27 June 2023. The current application was filed on 8 August 2023 which was way outside the period by which such an application ought to have been filed.

It is in view of this that the applicant seeks condonation for failure to file the application for leave to appeal within the prescribed period and for leave to appeal.

The application is opposed.

In its opposition, the respondent contended, inter alia, that, the delay is inordinate and that there is no reasonable explanation for the delay. It also contended, that, there were no prospects of success on appeal. It thus prayed for the dismissal of the application.

THE LAW

It is trite that in an application for condonation for non-compliance with the Rules, an applicant is obligated to demonstrate to the court that he or she has good cause for the grant of the relief. The applicant is required to, inter alia, provide a reasonable explanation for the delay and for non-compliance with the Rules and also to show that there are good prospects of success on appeal.

In Forestry Commission v Moyo 1997 (1) ZLR 254 (S) GUBBAY CJ set out factors to be considered in such an application as including:

“(a) That the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That there is a reasonable explanation for the delay;

(c) That the prospects of success, should the application be granted, are good; and

(d) The possible prejudice to the other party should the application be granted.”

See also Machaya v Munyambi SC04-05; Easter Mzite v Damafalls Investments (Pvt) Ltd SC21-18.

These factors are not individually decisive on whether the application for condonation for non-compliance with the Rules is granted. They are considered cumulatively.

In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S), SANDURA JA remarked as follows:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”

See also: Director of Civil Aviation v Hall 1990 (2) ZLR 354 (SC)…,.

ISSUES FOR DETERMINATION

1. Extent of the delay and whether the explanation for such delay is reasonable.

2. Whether there are good prospects of success in the envisaged appeal.

3. Whether there is prejudice to be suffered by the other party if condonation is granted.

APPLICATION OF THE LAW TO THE FACTS

2. Prospects of success in the envisaged appeal

The applicant's grounds of appeal mostly allude to a dissatisfaction with the court a quo's findings leading to the dismissal of his appeal. Some of the grounds are on findings of fact and not on questions of law.

It would appear that the need to clearly raise grounds of appeal on questions of law were lost in his gripe with the court a quo's decision.

In Sheckem Ngazimbi v Murowa Diamonds (Pvt) Ltd SC27-13, this Court explained the purpose of an application for leave to appeal as follows:

“The purpose of requiring leave, before noting an appeal, to be given by the President of the Labour Court, or, upon refusal, by the judge of the Supreme Court, in terms of section 92F(2) of the Act, is to prevent appeals not based on questions of law getting to the Supreme Court. The right to appeal given by section 92F(1) is a limited right. The exercise of it is made conditional upon leave being granted.”

The question is thus whether there are prospects of success in those grounds that relate to questions of law.

Prospects of success refer to the question of whether the applicant has an arguable case on appeal.

In Essop v S [2016] ZASCA 114, the court, in defining prospects of success, held that:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that, a court of appeal could reasonably arrive at a conclusion different to that of the trial court.

In order to succeed, therefore, the appellant must convince this court, on proper grounds, that, he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”…,.

In Chikurunhe v Zimbabwe Financial Holdings SC10-08, the Court held that:

“The party seeking leave must show, inter alia, that he has prospects of success on appeal. In other words, leave is not granted simply because a party has sought such leave.”

In casu, the applicant intends to appeal against the judgment of the court a quo on the basis, that, the court erred by failing to uphold his grounds of appeal against the lower tribunal's disciplinary process that resulted in his being dismissed from employment, which he alleged was flawed.

The applicant avers, that, his right to be heard or to respond to the investigations, the right to an informed response, and the right to meaningful legal representation were violated.

The applicant also claims, that, he was denied the right to defend himself, the right to call witnesses, and the right to request documents with which he could defend the charges against him.

The court a quo held, that, upon his suspension from work being lifted, the applicant failed to report for duty.

The court further held, that, the applicant's legal practitioner walked out of the hearing and failed to challenge the evidence against the applicant, hence, the applicant could not blame anyone for that.

In Zesa Enterprises (Pvt) Ltd v Stevawo SC29-17…, it was held that:

“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.”

In that case, the Court went on to qualify the right to be heard as follows:

“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….,. 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.'”

Further, in David Moyo v Rural Electrification Agency SC04-14, ZIYAMBI JA had this to say concerning an employee who had failed to attend a disciplinary hearing despite knowledge thereof:

“In our view, the appellant, by deliberately absenting himself, without leave, from the hearing, waived his right to challenge the conduct of the disciplinary proceedings.”

In casu, it is common cause that the applicant was suspended from employment after which the suspension was lifted within three days of the date of suspension. The applicant was thereby required to report for duty.

The letter lifting the suspension was served at his residential address which he had provided.

He did not report for duty, hence, disciplinary proceedings were instituted.

The applicant was notified of the disciplinary proceedings against him and the date of the hearing. Whilst the applicant was not present in person, as he averred that he had left for China upon being suspended, he was legally represented by a legal practitioner of his choice.

It is not disputed that the appellant left for China without the respondent's authority.

The applicant submitted a written response to all the charges against him. His legal practitioner…, duly attended the disciplinary hearing whereat he presented the applicant's written response to all the charges and this was accepted by the disciplinary authority.

However, when the legal practitioner's request for a 7 months long postponement of the hearing was rejected, the legal practitioner left the hearing before it ended on the basis, that, he had no further instructions from his client.

As a result, the applicant failed to challenge the evidence placed before the disciplinary authority.

In the circumstances, it cannot be said that the applicant was denied the right to be heard and to defend himself. Such right was accorded to him, and subsequently waived by his legal practitioner when he walked out of the disciplinary hearing.

In casu, the applicant chose to leave for China at a time he was on suspension, without obtaining authority from the respondent.

The applicant's contention seemed to be oblivious of the legal effect, that, a suspension does not release an employee from his contract of employment or grant him the authority not to avail oneself when required by the employer.

In Gladstone v Thornton's Garage 1929 TPD 116 the court stated that:

“When an employee is suspended, it appears to me, that, apart from any express instructions, he must hold himself available to perform his duties if called upon; though for the time being he is debarred from his work. It appears to me, that, that is distinct from dismissal - the use of the term 'suspended' is an indication, that, while he is not to perform his duties, he must still remain bound to his employer under his contract of service.”

In Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (SC), GUBBAY JA…, aptly confirmed this position in this jurisdiction as follows:

“Plainly, the obligation of an employee who is placed under suspension to hold himself available to performing his duties, if called upon to do so, is one which arises by operation of law. It is of no consequence, therefore, that, no provision in that regard is contained in the contract of service; and it is not necessary for the employer, at the time of suspension, to so inform the employee.”

The applicant, by leaving for China, deliberately made himself unavailable to report for duty - and to even attend the disciplinary hearing in person.

It was in this scenario that he appointed a legal practitioner to represent him.

His legal practitioner presented his written response to the charges. Unfortunately, the legal practitioner, thereafter, opted to walk out of the hearing.

The opportunity to argue the applicant's case, and even cross examine witnesses, was there for the taking, but, he opted to leave. Clearly, this is a situation where the applicant was afforded what he now craves for but opted not to take it at the time.

It cannot therefore be said, that, he was denied an opportunity to participate in the disciplinary proceedings.

There are clearly no prospects of success on appeal against the court a quo's decision dismissing the applicant's appeal in the circumstances.

The application ought to fail on that basis.

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Employment Contract re: Termination iro Proceedings under a Code of Conduct

SC72-20 : TAYENGWA MUSKWE vs LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

SC133-21 : CIMAS MEDICAL AID SOCIETY vs LINDIWE MHUNDURU
Ruled By: HLATSHWAYO JA, BHUNU JA and BERE JA

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC18-17 : BLESSING MUSHAPAIDZE vs ST ANNE'S HOSPITAL and CAPS HOLDING LTD and NATIONAL EMPLOYMENT COUNCIL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

SC44-20 : TAFADZWA SAKAROMBE N.O. and WONDER SIMUKA vs MONTANA CARSWELL MEATS (PVT) LTD
Ruled By: GOWORA JA, PATEL JA and BERE JA

SC86-23 : GUTU RURAL DISTRICT COUNCIL vs JASON MUGAYO
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and BHUNU JA

SC59-21 : LIVING WATERS THEOLOGICAL SEMINARY vs REVEREND NGONI CHIKWANHA
Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

SC40-23 : JOHANNES MANYENGA vs PETROZIM (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, MAKONI JA and CHITAKUNYE JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC122-23 : BERNARD KUJINGA vs OLD MUTUAL LIFE ASSURANCE (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

SC126-23 : GODFREY MUGARI vs CHINHOYI UNIVERSITY OF TECHNOLOGY
Ruled By: CHITAKUNYE JA

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Law Portal Zimbabwe

Employment Contract re: Termination iro Proceedings under a Code of Conduct

SC72-20 : TAYENGWA MUSKWE vs LAW SOCIETY OF ZIMBABWE Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

SC133-21 : CIMAS MEDICAL AID SOCIETY vs LINDIWE MHUNDURU Ruled By: HLATSHWAYO JA, BHUNU JA and BERE JA

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC18-17 : BLESSING MUSHAPAIDZE vs ST ANNE'S HOSPITAL and CAPS HOLDING LTD and NATIONAL EMPLOYMENT COUNCIL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

SC44-20 : TAFADZWA SAKAROMBE N.O. and WONDER SIMUKA vs MONTANA CARSWELL MEATS (PVT) LTD Ruled By: GOWORA JA, PATEL JA and BERE JA

SC86-23 : GUTU RURAL DISTRICT COUNCIL vs JASON MUGAYO Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED Ruled By: GOWORA JA, PATEL JA and BHUNU JA

SC59-21 : LIVING WATERS THEOLOGICAL SEMINARY vs REVEREND NGONI CHIKWANHA Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

SC40-23 : JOHANNES MANYENGA vs PETROZIM (PRIVATE) LIMITED Ruled By: MAVANGIRA JA, MAKONI JA and CHITAKUNYE JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC122-23 : BERNARD KUJINGA vs OLD MUTUAL LIFE ASSURANCE (PRIVATE) LIMITED Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

SC126-23 : GODFREY MUGARI vs CHINHOYI UNIVERSITY OF TECHNOLOGY Ruled By: CHITAKUNYE JA

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Law Portal
Zimbabwe

SC72-20 : TAYENGWA MUSKWE vs LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

SC133-21 : CIMAS MEDICAL AID SOCIETY vs LINDIWE MHUNDURU
Ruled By: HLATSHWAYO JA, BHUNU JA and BERE JA

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC18-17 : BLESSING MUSHAPAIDZE vs ST ANNE'S HOSPITAL and CAPS HOLDING LTD and NATIONAL EMPLOYMENT COUNCIL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

SC44-20 : TAFADZWA SAKAROMBE N.O. and WONDER SIMUKA vs MONTANA CARSWELL MEATS (PVT) LTD
Ruled By: GOWORA JA, PATEL JA and BERE JA

SC86-23 : GUTU RURAL DISTRICT COUNCIL vs JASON MUGAYO
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and BHUNU JA

SC59-21 : LIVING WATERS THEOLOGICAL SEMINARY vs REVEREND NGONI CHIKWANHA
Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

SC40-23 : JOHANNES MANYENGA vs PETROZIM (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, MAKONI JA and CHITAKUNYE JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC122-23 : BERNARD KUJINGA vs OLD MUTUAL LIFE ASSURANCE (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

SC126-23 : GODFREY MUGARI vs CHINHOYI UNIVERSITY OF TECHNOLOGY
Ruled By: CHITAKUNYE JA