On 24 February 2017, the Labour Court granted, with no order as to costs, an application for review brought by the respondent against the appellant. It thereby set aside the decision of the appellant to dismiss the respondent whom it reinstated with no loss of salary and benefits with effect from the date of the dismissal. In the alternative, and if reinstatement was untenable, it ordered that the appellant pays damages to the respondent.
This is an appeal, with leave, against that order.
BACKGROUND
The respondent was employed by the appellant as a bus conductor. Suspecting that she had committed an act of theft or fraud, the appellant brought the respondent before a disciplinary committee. The disciplinary committee failed to reach a decision in the matter. Instead of referring the matter to the Chief Executive, as is provided for in the governing code of conduct, the deadlocked disciplinary committee referred the matter to the Division Operations Manager, who, clearly oblivious of his incompetence in the matter, found the respondent guilty and dismissed her from employment.
On the sole basis that the referral of the matter to the Division Operations Manager was a nullity, the respondent approached the court a quo, on review, seeking to have the decision dismissing her set aside.
At the hearing of the matter a quo, the court held the appellant barred for want of filing heads of argument on time. It however proceeded to determine the matter on the merits.
It granted the application.
After setting aside the appellant's decision to dismiss the respondent, it made the additional order of reinstatement detailed above.
Aggrieved by the order of reinstatement, the appellant noted this appeal.
THE APPEAL
In the appeal, the appellant raised one ground of appeal as follows:
“The learned judge in the court a quo erred at law in ordering reinstatement of the respondent, or, alternatively, payment of damages in lieu of reinstatement, in an application for review where only a procedural irregularity was determined.”
Quite clearly, and correctly so, the appellant did not challenge the correctness of the court a quo's order to set aside the decision of the Division Operations Manager to dismiss the appellant as a nullity and therefore as unlawful. This therefore considerably narrows down the issues that fell to be resolved in this appeal.
THE ISSUE
The sole issue that arose in this appeal is whether, after setting aside the dismissal of the respondent as unlawful, it was competent for the court a quo to order the reinstatement of the respondent with no loss of salary and benefits with effect from the date of the dismissal, or in lieu thereof, the payment of damages....,.
THE LAW
It is common cause that the matter was placed before the court a quo by way of an application for review. It is further common cause that reviews before the Labour Court are governed by section 89 of the Labour Act [Chapter 28.01] which provides that the Labour Court shall exercise the same powers of review, in relation to labour matters, as would be exercisable by the High Court.
The powers of the High Court, on review, are based on the common law and on the provisions of the High Court Act [Chapter 7.06].
Section 28 of the High Court Act provides that on a review of any proceeding or decision in civil matters, the High Court shall have the power, subject to any other law, to set aside or correct the decision or proceedings reviewed. By virtue of section 89 of the Labour Act, the Labour Court similarly has power to set aside or correct the decision or proceedings reviewed.
As discussed above, the only issue that arose in this appeal is whether the court a quo could competently order the reinstatement of the respondent when it did not consider the merits of the charges preferred against the respondent in the disciplinary proceedings under review.
The appellant argued that the court had no such competence.
It correctly based its argument on the position of law, that, upon the setting aside of a fatally irregular decision in disciplinary proceedings, without a consideration of the merits of the matter, the status quo ante of the parties is restored. It mainly relied on the cases of Standard Chartered Bank of Zimbabwe Ltd v Chikomwe and 211 Others SC77-00 (SC77-2000), and Air Zimbabwe (Private) Limited v Chiku Mnensa and Another SC89-04, both decisions of this Court.
It appears to me, that, the appellant understood the legal position enunciated in the above authorities to only mean that the setting aside of fatally irregular proceedings, on review, automatically restores the proceedings to the last valid proceeding. In other words, it understood the legal position to be purely procedural, affecting only the procedural rights of the parties and not their substantive rights.
The appellant was partially correct.
Its understanding, however, represents the narrow procedural position. It is not uncommon for procedural irregularities to also affect the substantive rights of the parties to the dispute. It is not uncommon for procedural irregularities to produce nullities that then restore, in full, the rights of the parties ante.
The broader, and more readily acceptable position, in my view, is that the status quo ante of the parties that is restored upon the setting aside of the irregular employment disciplinary proceedings also relates substantively to the contractual status of the parties. Put simply, it must be understood to mean, broadly, that, upon the setting aside of fatally defective disciplinary proceedings, the employment contract is restored, without necessarily or by implication, negating the remedies and procedures available to each of the parties to terminate the contract in terms of the agreed terms.
It thus presents itself clearly to me that the restoration of the contract in such a situation has no effect on the merits of the charge or charges against the employee and the right of the employer to proceed against the employee in terms of the governing Code of Conduct.
The position that I come up with above was obliquely endorsed by McNALLY JA in Air Zimbabwe Corporation v Mlambo 1997 (1) ZLR 220 (S) where…, he accepted as correct the submission by counsel for the respondent to the effect that:
“…, as soon as there is a finding that the disciplinary findings were a nullity, it must follow that the employee is reinstated. After all, the basis for his dismissal has been set aside. So he has not been properly dismissed.”…,.
The conclusion that I reach above is similar to the conclusion reached by this Court in the case of Minerals Marketing Corporation v Mazimavi 1995 (2) ZLR 353 (S) where the court upheld the decision of the tribunal a quo to reinstate the employee after finding that a gross irregularity had occurred during the disciplinary proceedings.
The clear position of the law appears to me to be, that, upon the setting aside of employment disciplinary proceedings as a nullity, both the procedural and the substantive rights of the parties are restored to the position immediately before the nullified process. In other words, where a dismissal is set aside as being a nullity, the employee is reinstated as such notwithstanding the further disciplinary proceedings that the court may order by way of remittal or otherwise.
I thus reject, as stating the correct position at law, the argument by the appellant, that, the court a quo could only confine itself to confirming or nullifying the disciplinary proceedings of the appellant without granting substantive relief in the matter.
ANALYSIS
Applying the law to the facts of this matter, it cannot be disputed, that, by setting aside the dismissal of the respondent by the Division Operations Manager, the court a quo effectively restored the status of the respondent as an employee of the appellant - albeit one who had charges pending against her and had appeared before a disciplinary committee.
The record is not clear whether, prior to her being brought before the disciplinary committee, the respondent was on suspension with or without salary. This is a material consideration. In the absence of evidence that the respondent was on suspension pending the determination of the charges against her, the appeal has no merit.
I note, in passing, that, the issue that the employees in Air Zimbabwe (Private) Limited v Chiku Mnensa and Another SC89-04 were on suspension was the turning point in that case. The court reasoned, that, before the suspension was lawfully lifted, the employees could not be reinstated. In that case, the employees concerned were on suspension without salary. This is the status they reverted to after the setting aside of the disciplinary proceedings.
This reasoning does not and cannot apply in casu. It was not argued a quo that the respondent was on suspension without salary before she was unlawfully dismissed. It was similarly not so argued before us.
In the circumstances of this matter, the setting aside of the unlawful dismissal of the respondent restored her status as an employee of the appellant. To this extent, and in the absence of evidence that she had been lawfully suspended without salary before she was dismissed, the order a quo cannot be faulted.
In the result, I find no merit in the appeal which I must dismiss.
In view of the fact that there is no justification for departing from the general position that costs follow the cause, I must dismiss the appeal with an accompanying order of costs.
Accordingly, I make the following order:
The appeal is dismissed with costs.
