Before
OMERJEE AJA, in chambers:
This
is an application for leave to appeal. The background relevant to the
determination of this matter is as follows:
The
applicant was employed by the respondent as Finance and
Administration Manager. He was the head of the Finance Department. On
21 October 2009, the applicant was suspended from duty following
allegations that the finance department could not account for
US$15,607, 25. The applicant directly supervised this department. It
is not clear from the record what charge the applicant was facing but
it is clear that a hearing was conducted in terms of S.I. 15 of 2006.
The applicant was found guilty and dismissed from employment.
The
applicant's internal appeal was dismissed on 25 November 2009,
leading to a referral of the matter to a Labour Officer for
conciliation. On 1 March 2010, the Labour Officer issued a
certificate of no settlement and referred the matter for compulsory
arbitration.
The
arbitrator in his findings accepted that there were some procedural
irregularities in the way the hearing was conducted and set aside the
employer's decision to dismiss the applicant. He ordered that the
applicant be reinstated without loss of salary and benefits as from
the date of dismissal pending the outcome of a hearing de novo. The
arbitrator also set out guidelines to be followed by the respondent
in the event of a hearing de novo. The respondent complied with the
arbitral award.
On
7 May 2010 the respondent re-instituted disciplinary proceedings
against the applicant. On 11 May 2010 the applicant appealed to the
Labour Court against the determination of the arbitrator. In his
notice of appeal the applicant averred that the arbitrator
misdirected himself and erred at law when he permitted the respondent
to conduct a hearing de novo.
The
appeal was heard on 10 March 2011 and it was dismissed on 6 May 2011.
On
13 May 2011 the applicant approached the court a quo with an
application for leave to appeal to this court. The application was
dismissed on 12 July 2012, some 14 months after the application was
made. There has been an inordinate delay between the date of hearing
of the application for leave to appeal and the date when the
determination was made. No reasons were furnished for the refusal to
grant leave or for the delay. This is unacceptable.
The
applicant on 20 July 2012 approached this Court in terms of section
92F(3) of the Labour Act [Cap 28:01] seeking leave to appeal against
the decision of the Labour Court.
During
the hearing of the application Mr Hwacha who was representing the
respondent submitted that, fresh disciplinary proceedings had been
instituted against the applicant and had been taken to finality. The
applicant was dismissed from his employment following new
disciplinary proceedings.
Mr
Muzangaza who was appearing for the applicant agreed that it was
correct that the applicant had been charged and having been found
guilty was dismissed from his employment.
It
is common cause that the arbitrator was exercising review powers over
the matter when he was considering the proceedings before the
disciplinary hearing with a view to determine whether the dismissal
was procedurally correct. The arbitrator found that there were
procedural irregularities in the manner in which the disciplinary
proceedings were conducted.
As
a general proposition, in cases where disciplinary proceedings have
been set aside, on review on purely procedural grounds, an employer
has the power to institute proceedings afresh against the employee,
if there exist bona fide grounds for doing so.
In
an application of this nature one ought to consider whether there are
any prospects of success on appeal. In this case there exist no
prospects of success because there is no law that precludes the
employer from instituting proceedings afresh especially when earlier
proceedings had been impugned on the basis of procedural
irregularities.
Even
if the court were to grant the relief sought by Mr Muzangaza such
relief would be academic in nature. The applicant stands dismissed
from his employment by reason of separate disciplinary proceedings
instituted by the employer against the applicant.
For
these reasons, the relief sought cannot be granted. The application
is hereby dismissed and there shall be no order as to costs.
Muzangaza,
Mandaza & Tomana, applicant's legal practitioners
Dube,
Manikai & Hwacha, respondent's legal practitioners
