GARWE JA
[1] Following charges of
misconduct preferred against the respondent, the hearing officer
appointed by the appellant found him guilty of five counts of conduct
inconsistent with the fulfilment of the express or implied conditions
of his employment contract. Consequent upon that finding, the
disciplinary authority imposed the ultimate penalty of dismissal.
[2] Dissatisfied with the manner
in which the proceedings had been conducted, the respondent, as
applicant, filed a review application seeking an order setting aside
his suspension and the proceedings that had taken place before the
hearing officer.
After hearing argument from both
parties, the Labour Court found in favour of the respondent. Pursuant
thereto, the court made an order setting aside the dismissal of the
respondent and remitting the matter for a fresh hearing within a
period of three months. It is against that order that the appellant
has appealed to this Court seeking an order setting aside that
decision and replacing it with one dismissing the review application.
BACKGROUND FACTS
[3] In view of the issues that
arise for determination before this Court, it is necessary to set out
the factual background in some detail. The facts of this case are
these. The respondent was employed by the appellant as its General
Manager, Operations, a position that was also commonly referred to as
Chief Operations Manager. The appellant, a duly registered company in
terms of the laws of this country, is a subsidiary of Meikles Ltd.
[4] On 24 April 2014, the
respondent was placed on suspension with benefits pending
investigations into allegations that he had improperly handled the
purchase of a hundred cases of Famous Grouse Whiskey from an entity
called Fly Crew Investments. The suspension was at the instance of
Meikles Ltd. It was alleged that Fly Crew Investments did not have a
valid agreement with Meikles Ltd for the supply of whiskey, that it
was not the holder of a valid wholesale liquor licence and that it
had not provided proof of the origin of the whiskey.
[5] On 9 May 2014 Meikles Limited
preferred two charges of misconduct against the respondent. It was
alleged that he had firstly, improperly authorised the purchase of
the whiskey from Fly Crew Investments and secondly that he had
engaged in conduct that gave a company known as Zimsource an unfair
advantage over other suppliers of mealie meal.
The letter containing the charges
also set down the disciplinary hearing for 14 May 2014 at the Meikles
Boardroom.
[6] Apparently because of the
senior position occupied by the respondent and the fact that the
Executive Chairman of Meikles Ltd, one John Moxon (“Moxon”) was
to be called as a witness, a decision was taken by Meikles Ltd to
appoint a senior legal practitioner as the hearing officer. For her
services, she was to be paid by Meikles Ltd.
[7] On 14 May 2014, the
respondent, accompanied by a legal practitioner from the firm of
legal practitioners representing him, attended the hearing but
requested for the postponement of the matter. This was on the basis,
firstly, that the legal practitioner representing him, a Mr Muza, was
out of the country in Hong Kong and, secondly, that he had only been
served with the notice of hearing on Friday 9 May 2014, giving him
very little time to prepare for the hearing. The parties agreed that
the hearing be postponed and be heard during the period 27-30 May
2014. As further agreed, the respondent later that day confirmed in
writing that he was waiving any rights he may have had in respect of
the fourteen (14) day period during which the matter was required be
determined in terms of the relevant Code.
[8] On 20 May 2014, the
respondent's legal practitioners wrote to the hearing officer
raising a number of concerns. The first was that the letter
containing the charges did not indicate in terms of which code, or
sections of the code, the respondent had been charged. Secondly,
that since the respondent was not employed by Meikles Limited but by
TM Supermarkets (Pvt) Ltd, the decision by Meikles Ltd to suspend and
prefer charges of misconduct was null and void. The respondent also
took issue with the appointment of a legal practitioner, an outsider,
as the hearing officer. The respondent's legal practitioners
demanded the reversal of the disciplinary process and reinstatement
of the respondent and gave the appellant up to 22 May 2014 to comply.
[9] By letter dated 22 May 2014,
Meikles Ltd lifted the suspension and directed the respondent to
report for duty the following day at 7.45a.m. The respondent's
legal practitioners responded immediately, advising that they had not
been able to contact the respondent but had ascertained from his wife
that he would only be back late on 25 May 2014 and that consequently
he would only be able to report for duty on 27 May 2014, as 26 May
2014 was a public holiday.
[10] On 23 May 2014, i.e. the
following day, TM Supermarkets (Pvt) Ltd, the appellant in this case,
then suspended the respondent without pay and benefits in terms of
the Labour (National Employment Code of Conduct) Regulations, 2006
(S.I. 15/2006) (“the National Code”). The appellant
simultaneously preferred a total of five charges alleging conduct
inconsistent with the fulfilment of the express or implied conditions
of his employment contract. The charges were based on the same set
of facts that had given rise to the two charges previously preferred
against him and which had subsequently been withdrawn. Attached to
the charges were various documents which the appellant indicated were
to be used during the hearing. The letter set the matter down for
hearing on Friday 30 May 2014.
[11] On 28 May 2014, the
respondent's legal practitioner wrote to the appellant, advising
that he would be engaged in the Labour Court on 30 May 2014 and that
he would therefore be unable to attend the hearing on that date. He
further indicated that he would be available to appear before the
hearing officer on either 4 June 2014 or 10 June 2014.
Following receipt of that letter,
a Colonel Dyke and a Mr T. Mpofu, representing the appellant,
communicated with the respondent's legal practitioner during which
tentative dates, in particular 11 June 2014, were discussed. The
respondent's legal practitioner reiterated that he was not able to
attend the hearing set for 30 May 2014. No confirmation of the new
hearing date was made by the two gentlemen.
[12] In a letter dated 30 May
2014, appellant confirmed the discussion between the respondent's
legal practitioner and its representatives, namely, Colonel Dyke and
Thabani Mpofu, on the need for a postponement of the hearing that had
been scheduled for 30 May 2014 to a future date. In the letter the
appellant advised that the matter would now be heard on 3 June 2014.
As 30 May 2014 was a Friday, this effectively gave the respondent
only one business day i.e Monday, 2 June, to prepare for the hearing.
[13] On 2 June 2014, the
respondent's legal practitioners once again wrote to the appellant
reiterating that he would be in the Labour Court on 3 June 2014 and
expressing surprise that, despite previous discussions, the matter
had been set down for 3 June 2014. In the letter, he again sought a
postponement.
It is what happened on 3 June
2014, the date of hearing, that gave genesis to the proceedings
before the Labour Court.
[14] On that day, the respondent
and a legal practitioner from the firm representing him, appeared
before the hearing officer. A request for the matter to be postponed
was refused. Instead, the hearing officer stood the matter down for
an hour, indicating that witnesses, some from as far afield as
Victoria Falls, were in attendance. The respondent's legal
practitioner, Mr Muza, eventually appeared before the court at 12
noon. At that stage he raised a number of objections. Firstly, that
the respondent required a copy of the order for 300 bags of mealie
meal that formed part of the charges against him. He also required
the procedure manual, a summary of the employer's evidence and
access to the respondent's laptop, which was in the appellant's
custody, in order to prepare his defence. Expressing the view that
the respondent was merely trying to facilitate a postponement of the
matter which had been denied, the hearing officer ordered that the
hearing proceed. She was of the view that since the employer was to
call a total of six (6) witnesses, it was unlikely that the matter
would get to the defence case by the close of business that day and
accordingly directed that the documents be furnished by the close of
business so that the respondent would have the opportunity to prepare
his defence, “especially after hearing the evidence of the
witnesses called by the employer.”
[15] There were three other
objections raised after the ruling by the hearing officer that the
matter proceeds. The first was that the hearing officer should recuse
herself because she was not an employee of the appellant, that there
were other suitable persons within the company who could conduct the
hearing and that, in any event, as she stood to be paid for her
services by the appellant, she was likely to be biased against the
respondent.
It was also submitted that the
involvement of Thabani Mpofu, who was an outsider, vitiated the
proceedings.
Whilst accepting that Mpofu's
status within the appellant did not appear to be clearly articulated,
the hearing officer concluded that
Mpofu was working for the appellant on what appeared to be a consultancy. She accordingly
dismissed all the objections raised, including the objection that the suspension was unlawful
because, at the stage when the respondent was again suspended on 23 May 2014, he had not yet
been reinstated.
[16] After the several rulings by
the hearing officer, the respondent's legal practitioner complained
that he and his client were very unhappy about those rulings, in
particular, that the hearing proceeds in the absence of the documents
requested. He complained that they were not in a position to
cross-examine witnesses without those documents. He also questioned
the set down of the matter when it had been made clear in several
correspondence that he would not be available on 3 June 2014. He
further complained that the hearing was an ambush.
That notwithstanding, the hearing
officer gave the green light for the appellant's first witness to
be called. At that stage, the
respondent and his legal practitioner then walked out of the hearing.
[17] After the respondent and his
legal practitioner had walked out, various witnesses were called at
the instance of the appellant. In a determination dated 6 June 2014,
the hearing officer found the respondent guilty of all the charges
preferred against him. An invitation to the respondent to address in
mitigation of the punishment to be meted out was ignored. In a ruling
dated 11 June 2014, the hearing officer imposed the ultimate penalty
of dismissal.
APPLICATION FOR REVIEW BEFORE
THE LABOUR COURT
[18] Dissatisfied, the respondent
as applicant, filed an application for review before the Labour Court
seeking the setting aside of the suspension and disciplinary
proceedings. The basis of the application was that:
(a) the decision by the hearing
authority to allow access to certain documents and the laptop only at
the end of the first day of hearing was irrational in that it
compelled the respondent to conduct his case without the documents
which the hearing authority had agreed should be furnished.
(b) the disciplinary process was
conducted in circumstances which exhibited a real possibility of
bias.
(c) Moxon could not properly
depose to an affidavit on behalf of the appellant, a separate legal
entity from Meikles Ltd, which he was Executive Chairman of.
(d) inadequate notice of the
hearing set for 3 June 2014 had been given.
(e) the suspension was irregular
as it was effected by one Colonel Dyke whose position within the
appellant was unknown.
(f) the re-suspension effected on
23 May 2014 was null and void because, as of that day, he had not
been fully reinstated; and
(g) in the absence of an
agreement on the date and time of reinstatement, the finding that he
should have made himself available for work first thing on 23 May
2014 was irrational.
[19] The application for review
was opposed by the appellant on a number of grounds.
First, that Moxon could properly
depose to an affidavit on behalf of the appellant. Second, that the
failure to cite the authority that made the decision was a fatal
omission. Third, that the respondent had failed to exhaust domestic
remedies provided for in section 8(6) of the Code of Conduct which
allows a party aggrieved by a decision or manner in which his matter
is handled to refer the case to a labour officer. Fourth, that the
failure to file a supporting affidavit to the application exhibited
mala fides on the part of the respondent.
[20] The appellant further
averred that, had the respondent genuinely wanted to use the various
documents in his defence, he should have requested for them prior to
the hearing and that “in any event they were going to be furnished
to him before presenting his defence”.
The appellant further averred
that the appointment of a legal practitioner as hearing officer was
permissible in terms of the law. Further, that the respondent wanted
the hearing officer to set the matter down on a date that suited his
convenience.
It also disputed that the
respondent was not given adequate notice of the hearing, having known
of the charges since 23 May 2014.
Lastly, it stated that, once the
respondent had been reinstated, he should have reported for work
immediately.
[21] After hearing argument on
the issues raised in the review proceedings, the Labour Court made a
number of findings.
First, that the opposing
affidavit filed by Moxon, Chief Executive Officer of Meikles Ltd,
complied with the Rules, notwithstanding that the employer was TM
Supermarket (Pvt) Ltd, a subsidiary of Meikles Ltd. Second, that the
failure to cite the chairperson of the disciplinary committee was not
a fatal irregularity since it was clear that the hearing officer was
appointed by, and acted at the behest of, the appellant. Third, that
Colonel Dyke had the authority to act on behalf of the appellant and,
consequently, his involvement in the process was not irregular.
Fourth, that although the respondent walked out of the disciplinary
proceedings, he had the right to seek the review of that part of the
proceedings that took place in his presence. Fifth, that it was an
irregularity for the hearing officer to proceed with the hearing
after directing that the documents and laptop that the respondent
required be made available at a later stage in the proceedings.
Lastly, that the involvement of persons not employed by the appellant
was not necessarily irregular.
The court found that the
appellant had satisfactorily explained the involvement of Colonel
Dyke. There was also nothing irregular in the appointment of a legal
practitioner as hearing officer even though she was to be remunerated
by the appellant at the end of the day. The court ultimately found
that the failure to provide the documents and laptop were a
reviewable irregularity and that a perception of bias had been
created. On that basis, the court set aside the order dismissing the
respondent and directed the remittal of the matter to the appellant.
The present appeal is against
that order.
GROUNDS OF APPEAL
[22] The appellant has attacked
the findings of the court a quo on four grounds. I cite these
verbatim:
“1. The court a quo erred
holding (sic) that the respondent's failure to cite the Presiding
Officer of the Disciplinary Hearing was not fatal to its petition for
Review. At law when one attempts to impugn proceedings on account of
the conduct and bias of a presiding officer, it is peremptory that
such adjudicator be cited and joined as a party in the Review
proceedings.
2. The court a quo grossly
misdirected itself in determining that the presiding officer in the
respondent's hearing was biased. Bias can only be determined in the
face of cogent facts evidencing such bias and cannot be inferred from
a refusal to postpone a matter that was time-sensitive and had been
on an earlier occasion(s) been delayed (sic).
3. The court a quo erred in
failing to hold that, by the respondent abandoning and absenting
himself from the disciplinary proceedings, he thereby abdicated any
right and entitlement to impugn such proceedings or the proceedings
eventual outcome. It is an established rule of law that if an
employee walks out of the proceedings, he does so at his own peril
and at the palpable risk of having the proceedings conducted in his
absence.
4. The court a quo grossly
misdirected itself in finding that that there was a procedural
irregularity as regards the respondent's request for documents. The
finding was grossly irregular as evidence had led (sic) showing that
the documents requested by the respondent were for the preparation of
his defence and not documents that were to be used by the applicant
in the prosecution of its case against the respondent. In any case
the respondent was never denied the documents but instead denied a
spurious request for postponement.”
APPELLANTS
SUBMISSIONS ON APPEAL
[23] In motivating its grounds of
appeal, the appellant made the following submissions.
First, the allegations of bias on
the part of the hearing officer were not a trifling matter. The
party accused of partiality should therefore have been given the
opportunity to explain or defend herself. This is particularly so
given that the Labour Court exercises the same powers of review as
does the High Court.
In terms of the High Court Rules,
Rule 256 in particular, an application for review must be directed
at, inter alia, the presiding officer of the tribunal.
Secondly, in view of the fact
that the hearing authority was presiding over proceedings that were
time sensitive, the request for a postponement was considered against
this requirement.
Thirdly, no bias was exhibited.
Lastly, by walking out of the
proceedings, the respondent had waived all rights to impugn the
entire proceedings, including that part of the proceedings that had
taken place in his presence. He could not, therefore, appeal or seek
the review of a process he had abandoned.
RESPONDENT'S SUBMISSIONS ON
APPEAL
[24] The respondent, on the other
hand, submitted as follows.
First, the appellant had sought a
remittal of the matter to the court a quo. That relief having been
granted, the appellant could not have appealed against the order.
Second, that the hearing officer
does not exist independently of the employer. The substance of the
dispute concerned the irregularities in the disciplinary processes of
the appellant. That issue could be determined without the need to
involve the authority. In any event, the law is now settled that it
is improper for an adjudicator to seek to justify its conduct or
pitch camp with one of the litigants. There were no other facts which
the authority was required to set out as the record of the
proceedings was before the court.
Third, that there is no law that
bars a litigant from challenging conduct that takes place in his
presence.
Fourth, once the hearing officer
accepted the request that the documents and laptop should be made
available, she could not proceed before these were made available.
In fact, by nevertheless proceeding with the hearing, the hearing
officer gave the impression of bias.
Lastly, the involvement of
Colonel Dyke and Thabani Mpofu, who were outsiders, vitiated the
proceedings.
ISSUES FOR DETERMINATION
[25] I consider the issues that
arise for determination before this Court to be the following.
First, whether it was mandatory,
on the part of the respondent, as applicant a quo, to cite as a
party, the hearing officer who chaired the disciplinary proceedings.
If so, whether the non citation renders the entire review proceedings
a nullity.
Second, and only in the event
that the answer to the first issue is in the negative, whether the
proceedings before the legal practitioner were afflicted by
procedural irregularity as would justify an order setting them aside.
Third, whether in any event, the
legal practitioner conducted herself in such a way as to induce a
sense of bias.
Fourth, the implication, in law,
of the respondent walking out in the midst of disciplinary
proceedings and attacking the conduct of the portion of the
proceedings that took place in his presence. In particular, whether
he has the locus standi to launch a review application in respect of
that part of the proceedings that took place during his presence.
Fifth, the effect on the
proceedings following the involvement of Colonel Dyke and Thabani
Mpofu, who prosecuted the disciplinary proceedings on behalf of the
appellant.
I deal with each of these in
turn.
WHETHER THE DISCIPLINARY
CHAIRPERSON SHOULD HAVE BEEN CITED
[26] The appellant is correct in
its submission that Rule 256 of the High Court Rules, 1971 provides
that, in an application for review, the person who presided over a
tribunal or board must be cited as a respondent in those proceedings.
Indeed, in Blue Ribbon Foods Ltd v Dube NO & Anor 1993 (2) ZLR
146 (S), MCNALLY JA made the following pertinent remarks at page 150
B-C:
“In review proceedings, where
allegations of procedural impropriety or bias are commonly made
(those being the common grounds which justify review) the presiding
officer whose conduct is in question may, if he wishes, file an
affidavit to clarify such matters as he may wish to clarify. And in
a proper, though I would think exceptional, case he may be
represented by counsel. But only on that issue. It is not for him to
enter into the merits of the case or to defend his decision. That is
the function of counsel for the respondent employer or the respondent
employee, as the case may be.”
[27] Whilst the High Court Rules
require that the person whose conduct is impugned should be cited,
the position now appears settled that such person must not be seen to
be pitching camp with or taking sides in the dispute. In such a
case:-
“… an arbitrator, umpire,
judge or other adjudicating body has one of two choices. The first is
that he could file an affidavit setting out facts which he considers
may be of assistance to the court. So long as such facts are stated
colourlessly, no-one could object, but if the affidavit should err
plainly in support of one of the parties it might expose the
adjudication to the odium of the court. … . The second choice of
the arbitrator or umpire when served with the notice of motion for
his removal, or to set aside his award, is to take no action and
abide by the court's decision.” – Leopard Rock Hotel Co (Pvt)
Ltd & Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S),
279 B-F.
[28] Although in terms of section
89(1)(d) of the Labour Act, [Chapter 28:01], the Labour Court shall
exercise the same powers of review as does the High Court, there is
no provision, either in the Act itself or the Rules of court made
thereunder, requiring the citation of the presiding officer in these
circumstances.
[29] The position in neighbouring
South Africa is different.
The Labour Court Rules there
provide that where the Rules are silent on a particular aspect, the
Uniform Rules of the High Court may be applied – Public Servants
Association of South Africa & Minister: Department of Home
Affairs & Others Case No. JA 90/11; Mads Pub & Sizzle Cc t/a
The Grant v Raymond Ngwenya Case No. JS 448/12.
[30] The strict rules of
procedure and evidence that apply in the High Court do not apply to
proceedings before the Labour Court. Indeed the Labour Court Rules
provide that matters coming before that court must not be determined
on technicalities but rather on the substance.
In this regard attention is drawn
to Rule 12 of both the 2006 and 2017 Labour Court Rules.
On a related aspect, the High
Court Rules, 1971 also provide that the non-joinder or misjoinder of
a party shall not defeat a cause or matter on that score alone.
[31] The disciplinary proceedings
in this case were conducted in terms of the National Code, 2006. In
terms of that Code, disciplinary authority means a person or
authority or such disciplinary committee dealing with disciplinary
matters in an establishment or at a work place.
Clearly “a person dealing with
disciplinary matters at the work place” is one appointed by the
employer. In other words, such person or authority does not exist
independently and outside of the employer. Such a person in fact
becomes part of the employer's processes.
[32] In my considered view, the
failure to specifically cite the presiding officer in review
proceedings before the Labour Court cannot constitute a fatal
irregularity.
In this case, there is a complete
record of the proceedings that took place before the hearing officer.
As counsel for the respondent correctly points out, there are no
other facts that she would have been required to set out to assist
the Labour Court in its determination of the matter.
[33] It is common practice in
this country for the employer, in these circumstances, to be cited as
a party as opposed to the disciplinary committee or authority set up
at the work place to adjudicate over labour disputes. Naturally, an
employer may, where necessary, attach an affidavit by the presiding
officer to clarify any issues arising before the court.
WALKING OUT OF PROCEEDINGS -
WHETHER CONSTITUTES WAIVER
[34] The submission by the
appellant that when a party absents himself from or walks out of
disciplinary proceedings, he waives his right to challenge the
conduct of the proceedings is, in general terms, correct. A number
of cases decided by this Court have stressed this principle.
See, for example: Moyo v Rural
Electrification Agency SC 4/14; Emmanuel Masvikeni v National Blood
Service Zimbabwe SC 28/19.
[35] In the matter that gave rise
to the review proceedings before the court a quo, the respondent made
it clear that he was not challenging the process that took place
after he walked out. Rather, he was challenging the proceedings that
took place in his presence.
The court a quo reached the
decision that in these circumstances the employee cannot be said to
have waived his rights to challenge what had happened in his
presence.
I am constrained to agree with
the court a quo in this respect.
[36] The principle that comes out
of cases such as Moyo v Rural Electrification Agency (supra) and
Emmanuel Masvikeni v National Blood Service Zimbabwe (supra) is that
a person cannot walk out of a hearing and thereafter allege that
things done in his absence are subject to review by the court. In a
review, one is concerned with the procedural propriety of proceedings
and not the merits of the matter. If, for example, a disciplinary
committee is not properly constituted, an employee who walks out of
the proceedings taking place before that committee can properly seek
the setting aside of those proceedings on account of that
irregularity.
[37] In the present matter, the
respondent's complaints touched on processes that occurred in his
presence before he and his lawyer walked out of the proceedings. The
principle that comes out of cases such as Moyo v Rural
Electrification Agency and Emmanuel Masvikeni (supra) has no
application in these circumstances.
WHETHER THE REFUSAL TO AVAIL
CERTAIN DOCUMENTS AND ITEMS WAS IRREGULAR
[38] After the request for a
postponement had been turned down, the respondent's legal
practitioner requested the hearing officer to avail to the respondent
a number of documents which he intended to peruse in order to prepare
his defence. He also requested to be given access to his laptop.
Asked whether a request had previously been made for these documents
and laptop, the respondent's legal practitioner responded that the
request had not been made because the parties were still trying to
agree on a date of hearing. Asked by the hearing officer whether the
documents were available, the appellant's representative, Thabani
Mpofu, indicated that the documents were available and could be
furnished. It was at that stage that the hearing officer made the
remark;
“OK. I suggest we start with
the hearing. I doubt we will finish today. Please make those
documents available to A. Muza if possible by the close of business
today if necessary by e-mail.”
She further made the remark;
“So we can proceed and the
documents will be furnished by close of business today. That is an
order …”
[39] In her ruling, the hearing
officer stated as follows:-
“… I formed the impression
that these documents were being requested purely to force the
postponement which had already been denied. Nevertheless I ordered
that the hearing proceed, and the documents be furnished by the close
of business. As the employer had six witnesses, it was unlikely that
the matter would get to the defence case by then. The employee would
still have the opportunity to prepare his evidence; even better so
after hearing the employer's evidence.” (underlining my own)
[40] The court a quo concluded
that the hearing officer had erred in her approach. It found that
“the guilt or otherwise of the applicant was premised on the laptop
and other documents which he requested to be availed first before
witnesses could be led.” The court found that it was critical that
the respondent should have been given access before the employer was
permitted to call any witnesses.
[41] The court a quo was, in my
view, correct in finding, as it did, that the conduct of the hearing
officer constituted a reviewable irregularity. Once the hearing
officer had decided that the documents and laptop should be accessed
by the respondent, she could then not allow the hearing to proceed
and the documents to be made available at a later stage. If, as she
later suggested, her view was that the request for the documents was
not genuine, she should have turned the request down. She appeared
to have failed to appreciate that the documents and laptop were not
simply required for purposes of the defence case. They were required
right from the beginning of the oral testimony of the witnesses.
Without the documents, the respondent would have been constrained to
properly cross-examine the witnesses called by the appellant.
It was not for the hearing
officer to decide how important the documents were to the respondent
as at that stage the defence to the charge had not yet been given.
I am satisfied that, on this
basis alone, the proceedings stood to be set aside and that the court
a quo was correct in doing so.
THE QUESTION OF BIAS
[42] As noted, the court a quo
found that the decision by the hearing officer to continue with the
hearing notwithstanding the respondent's desire to have access to
certain documents and to his laptop taken together with some of her
utterances during the proceedings created a perception of bias.
[43] Perusal of the record of the
proceedings and the subsequent ruling does, indeed, convey a
perception of bias against the respondent.
Firstly, the hearing officer says
the set down date of 30 May 2014 had been agreed but the respondent
and his legal practitioner had not turned up. Factually, that was
incorrect. Initially, the hearing had been scheduled to take place
during the period 27-30 May 2014. But that hearing related to
charges preferred by Meikles Ltd which were withdrawn on 22 May 2014.
On 23 May 2014, the appellant, not Meikles Ltd, then suspended the
respondent and set the hearing again for 30 May 2014. That date was
imposed by the appellant. Correspondence on file shows that the
parties never agreed on the hearing date of 30 May 2014. To the
contrary, the respondent's legal practitioner made it very clear he
had prior commitments in the Labour Court, which was a more senior
tribunal.
[44] The respondent's
suspension was withdrawn on 22 May 2014 and a letter written to him
the same day requiring him to report for work the next day at
7.45a.m. His legal practitioners immediately wrote to the appellant
to advise that the appellant was out of town and that he would only
be able to report for work on 27 May 2014 since 26 May 2014 was a
public holiday. It was common cause that, up until the time the
appellant wrote to him withdrawing the suspension, the respondent
would not have known that the suspension and charges were to be
withdrawn. He could not have known in advance that the appellant was
going to withdraw the letter of suspension and require him to
immediately report for duty. The remark by the hearing officer that
the respondent was “absent without leave”, that he “should have
been able to go to work within an hour of the employer's summons if
required …” were unfortunate statements that clearly failed to
take into account the realities on the ground.
[45] Further, the record of
proceedings shows very clearly that the date of 3 June 2014 was not
agreed between the parties. Whilst the proceedings were time
sensitive, the respondent had previously, in writing, waived any
rights to insist on the proceedings being determined within fourteen
(14) days. The respondent's legal practitioner had made it very
clear that he would be engaged in the Labour Court on that date. He
suggested 4 or 10 June. Thereafter there were further discussions
between him and the appellant's representatives, Colonel Dyke and
Thabani Mpofu on possible dates for the hearing and 11 June 2014 was
suggested as a convenient date. Despite all this, the hearing
officer was adamant that the matter should proceed on 3 June 2014.
Her comment, in reference to Phathisiwe Ncube who had come to request
for a postponement in place of Mr Muza, that “I know that young
lawyers always have that problem especially in the High Court where
your bosses send you but unfortunately you have to answer for the
firm …” was also an unfortunate statement.
[46] Viewed against the decision
to proceed with the hearing and the directive that the respondent be
given certain documents in the middle of the hearing, the conduct of
the hearing officer, in my view, tended to create the impression of
bias.
[47] The position is settled that
not only actual bias but also the appearance of bias disqualifies a
judicial officer from presiding over judicial proceedings. Actual
bias or partiality need not be shown as long as the court is
satisfied from the conduct of the presiding officer, either by his
words, his action or inaction or his handling of the proceedings that
he displayed a real likelihood that he might not be able to act
judicially – see MacMillan & Ors v Provincial Magistrate,
Harare & Ors 2004 (1) ZLR 17 (H).
The test for bias is an objective
one. It is not necessary to show personal animosity towards the
employee. If a reasonable person in their position, would have
thought that he would not have a fair trial in the circumstances,
that would be enough – Foya & Matimba v R. & Jackson N.O.
1963 R&N 318(FS), 322.
[48] In Metropolitan Properties
Co. (F.G.C.), Ltd v Lannon & Others (1968) (3) All ER 304,
310A-D, Lord Denning, with typical lucidity, stated as follows:-
“It brings home this point; in
considering whether there was a real likelihood of bias, the court
does not look at the mind of the justice himself …. The court
looks at the impression which would be given to other people. Even if
he was as impartial as could be, nevertheless, if right-minded
persons would think that, in the circumstances, there was a real
likelihood of bias on his part, then he should not sit. And if he
does sit, his decision cannot stand …. There must be circumstances
from which a reasonable man would think it likely or probable that
the justice or chairman as the case may be, would, or did, favour one
side unfairly at the expense of the other. The court will not inquire
whether he did, in fact, favour one side unfairly. Suffice it that
reasonable people might think he did …”
[49] In the light of the above
authorities and findings already made, I find no basis upon which the
finding that there was an appearance of bias can be said to be wrong.
THE INVOLVEMENT OF COLONEL
DYKE AND THABANI MPOFU
[50] The court a quo found that
the involvement of Colonel Dyke was “sufficiently” explained by
the appellant. As regards Thabani Mpofu, the court was non-committal,
expressing the view that “if his participation was calculated to
lead the applicant to believe that he was what he claimed to be then
that would put him within the ambit of what is frowned upon by law.”
The record shows that Thabani Mpofu had apparently been engaged by
the appellant to do certain work for Moxon and considered himself a
“consultant of sorts.”
I am unable to find, in these
circumstances, that he was a complete outsider or that the decision
by the appellant to use him to present the employer's case is
proscribed by the National Code of Conduct. In any event, the
judgment of the court a quo, having been in his favour, the
respondent cannot seek to impugn the finding by the court a quo that
the involvement of Colonel Dyke was sufficiently explained.
DISPOSITION
[51] I am satisfied that no case
has been made out to justify interference with the decision of the
court a quo. It follows from this that the appeal cannot succeed.
Costs follow the event.
[52] In the result, it is ordered
as follows:-
“The appeal be and is hereby
dismissed with costs.”
GOWORA JA: I agree
ZIYAMBI AJA: I agree
Gill, Godlonton & Gerrans, appellant's legal practitioners
Mawere & Sibanda, respondent's legal practitioners
