Labour
Appeal
MAVANGIRA
JA:
This
is an appeal against a judgment of the Labour Court wherein the
decision to dismiss the appellant from employment that had been made
by the appellant's Managing Director was set aside whilst an
earlier decision by the disciplinary committee that the respondent be
issued with a second written warning was confirmed.
The
facts of the matter may be summarized as follows;
The
respondent was employed as a creditor's clerk by the appellant. He
was charged with a number of acts of misconduct. He denied all the
charges. A hearing was conducted by the disciplinary committee. On 30
January 2014, the human resources manager communicated the
disciplinary committee's decision to the respondent in the
following terms:
“RE:
DETERMINATION ON HEARING
Reference
is hereby made to the internal disciplinary hearing finalized on 29
January 2014 in respect (of) cases in terms of SI
67 of 2012
Annexure 2 Action Code:
(i)
Offence number 2; 2.2 – Gross incompetence or inefficiency in
performance of work.
(ii)
Offence number 2; 2.3.1 - Gross negligence.
(iii)
Offence number 3; 3.7 – Insubordination.
(iv)
Offence number 3; 3.14 - Wilful disobedience of a lawful order given
by the employer.
After
deliberations the hearing committee passed the following verdict:
Presentation
of case was not properly done.
You
need to change your attitude towards your job and to put more effort
in your job.
You
shall report for duty to your normal duties with effective (sic) 1
February 2014.
In
light of the above the hearing committee then agreed that you be
given a second written warning which will last for the period of 3
months.
If
you are aggrieved with this decision you have the right to appeal in
terms of SI
67 of 2012
appeal procedure.”
The
complainant in the disciplinary hearing appealed to the Managing
Director against the Disciplinary Committee's decision. There was
no appeal by the respondent.
On
10 February 2014, the Managing Director wrote to the complainant in
the following terms:
“Attention:
COMPLAINANT
PIONEER
TRANSPORT
Re:
APPEAL AGAINST DECISION IN DOUGLAS MAFIKENI HEARING
I
refer to your letter addressed to me dated 3 February appealing
against the decision of the Disciplinary committee in the hearing of
Douglas Mafikeni passed on 29 January 2014.
I
have read through the minutes of the hearing and looked at the
deliberations made, and have come to the conclusion that the
disciplinary committee made an error in coming up with the
determination.
It
is very clear that Douglas Mafikeni (sic) failed to meet set
deadlines and submitted creditor's listing (sic) that was grossly
incorrect showing a very high level of incompetence. Despite him
having been given a written warning three months earlier he still
failed to improve performance in executing his duties.
Matters
of discipline are determined on a balance of probability and as such
all these factors of failure to meet deadlines, production of
incorrect creditor's listing even after having been given an
extension. (sic)
THEREFORE,
in light of the above I hereby overturn the determination by the
Disciplinary Committee, and the respondent is found guilty of the
charges and the penalty is dismissal. The respondent (sic) should be
dismissed effective 12 February” (emphasis added)
On
12 February 2014, a letter was written by the human resources manager
to the respondent. It reads:
“This
letter serves to inform you that following a disciplinary committee
hearing that was concluded on 29 January 2014, where the disciplinary
committee made a decision to give you a second warning an appeal was
made by the complainant against that decision in terms of Part E
section E1.1 of the SI
67 of 2012.
(sic)
A
decision was made by the office made from the office (sic) of the
managing director as defined in Part A4 (definitions) of the Sixth
Schedule overturning the decision of the disciplinary committee.
The
decision to overturn the disciplinary committee ruling was based on
the fact that you failed to meet set deadlines, you also presented a
creditors listing that was grossly incorrect showing a very high
level of incompetence.
It
is against this background that you were found guilty in terms of SI
67 of 2012
Annexure 2 sections
2.2,
for gross incompetence, section
2.3.1,
section
3.7
and section
3.14.
You
are therefore being dismissed from Pioneer Transport with effect from
12 February 2014 and you are further advised that you have the right
to appeal to the Labour Court against this decision in terms of Part
E section E.3 of the Sixth Schedule within 21 working days.”
Aggrieved
by the decision to dismiss him, the respondent appealed to the court
a
quo,
arguing, inter
alia,
that the managing director had erred in considering an earlier
written warning which had, in any event, expired. The appellant's
contention on the other hand, was that the earlier written warning
was relevant and was therefore properly taken into consideration.
The
court a
quo
approached the matter as one in which it needed to examine whether
the appellant, as the employer, had exercised its discretion
judiciously in light of s12B(4) of the Labour Act, on the basis that
it could only interfere with such discretion if it was not so
exercised.
The
court a
quo
found that the earlier written warning had expired and that
therefore, the managing director had misdirected himself in giving
any consideration to it. On that basis the court then interfered with
the appellant's decision and set aside the dismissal imposed by the
appellant's managing director but confirmed the disciplinary
committee's decision that a written warning be issued.
It
may be noted at this juncture that the respondent averred that the
first written warning is non-existent as the appellant failed to
produce a copy of it in the disciplinary hearing and to the court a
quo.
The appellant has not shed any light on this issue.
The
appellant has now appealed to this court against the court a
quo's
decision on the following grounds:
(i)
The court a
quo
grossly erred at law in interfering with the penalty of dismissal for
a misconduct that goes to the root of the contract;
(ii)
The court a
quo
erred at law in making a finding that an expired warning cannot be
treated as a record of employment service when imposing penalty
contrary to the provisions of section 12B(4) of the Labour Act
[28:01]
which makes it mandatory to consider such;
(iii)
The court a
quo
misdirected itself factually, which misdirection amounts to a point
of law, in that it made a finding that the decision of the Appeals
Officer to impose a penalty of dismissal was solely hinged on the
issue of a previous warning which was not the case as the Appeals
Officer also considered other factors like the gravity of the
offence, inter
alia.
The
appellant's prayer (as amended) is for an order that the appeal is
allowed and that the decision of the court a
quo
be set aside and substituted with the following:
“That
the appeal be and is hereby dismissed with costs.”
The
last paragraph of the letter dated 30 January 2014 to the respondent
informing him of the decision of the disciplinary committee pointed
him to SI
67 of 2012
with regard to his right to appeal should he be aggrieved.
He
did not appeal.
As
already pointed out earlier, an appeal was noted by the appellant's
representative who was the complainant in the Disciplinary Committee
hearing.
SI
67 of 2012
is the “Collective Bargaining agreement: Transport Operating
Industry.”
It
incorporates in the Sixth Schedule thereof the code of conduct
applicable to the entire transport operating industry. Part E in
terms of which the complainant appealed to the managing director
provides as follows:
“E.
APPEALS AND REVIEW OF MATTERS
A
party which may be aggrieved by the decision of the Disciplinary
Committee as per D.1 above, may within 5 days –
E.1
Appeal to the Chief Executive.
E.1.1
Appeals to the Chief Executive where the issue involves dismissal or
any form of termination of employment shall be in writing, and shall
state the grounds of appeal.”
By
stating that “a party, which may be aggrieved
…
may appeal”, the section gives the right to appeal against the
decision of the disciplinary committee to any party, including an
employer, who may be aggrieved by the committee's decision.
Thus,
whilst it is generally undesirable for an employer to appeal against
decisions that are usually viewed as decisions of its own internal
disciplinary bodies, in
casu,
the applicable law, that is to say, the Statutory Instrument allows,
in clear terms, for an appeal against the decision of the
disciplinary committee by a “party
which may be aggrieved.”
Accordingly,
the employer being an aggrieved party, acted within its statutory
rights in appealing against the decision of the disciplinary
committee.
The
respondent's averments that he was not served with a copy of the
said appeal and that he was not invited to make any submissions in
relation thereto were not challenged.
In
addition, note is also taken that the letter that triggered the
complainant's appeal to the managing director is not part of the
record. The appellant's legal practitioner was unable to shed any
light regarding the non-availability of the letter on the record.
A
fundamental rule of natural justice was broken when the managing
director made the decision that he did without hearing the
respondent.
As
the respondent was not served with a copy of the appeal letter, only
the appellant and its managing director are privy to the details of
the appeal.
The
proceedings before the managing director fell foul of the axiomatic
requirement of the rules of fair play in the delivery of justice.
A
decision that affects the respondent was made without him being heard
by the maker of the decision.
In
Musarira
v Anglo American Corporation
2005
(2) ZLR 267 (S)
the following was said:
“I
would point out here that as long as a charge of misconduct is
preferred by an employer against an employee there is always a
certain element of institutional bias, as the employer is the
offended party. However, this happens to be the situation in all
misconduct cases. What is important is that the misconduct matters
are dealt with in a manner that is fair and impartial and that the
rules of natural justice are followed.
The
rules of natural justice in such a case are that the party concerned
–
(a)
must be given adequate notice;
(b)
must be heard or be able to present his/her side of the story; and
(c)
Should be allowed to call witnesses if he/she so wishes.
See
Dabner v S A Railways and Harbours 1920 AD 588 at 598.”
In
casu,
the respondent was not heard in the appeal before the managing
director. By reason thereof, the said appeal proceedings must be set
aside.
So
axiomatic is the audi
alteram partem
rule, that it would be unconscionable for this or any court to uphold
proceedings wherein the rule was not complied with. The proceedings
before the managing director are a nullity. The Labour Court did set
aside the managing director's decision but for different reasons.
It
decided the matter on the merits and in doing so it erred.
The
proceedings before the managing director having been a nullity, the
appropriate course would have been for the court a
quo
to remit the matter to the managing director for a hearing that
accords with the rules of natural justice.
In
the circumstances, the decision of the managing director ought to be
set aside.
It
would however, be undesirable to have the matter remitted to him for
a rehearing. This is so because the fact that the managing director
was prepared to and did determine the matter without hearing the
respondent might justifiably create an impression of partiality on
his part.
Justice
must be seen to be done.
For
these reasons, in the interests of justice, instead of having the
court a
quo
remitting the matter to the managing director, this court will order
that the Labour Court rehear the appeal instead and ensure that the
rules of natural justice are complied with.
Section
89(2)(a)(i) of the Labour Act empowers and enables the Labour Court
to conduct such a hearing.
Labour
matters ought not be dealt with and finalized on technicalities.
The
rehearing of the matter by the Labour Court will ensure that this
does not happen. This is so because if such a rehearing is not
ordered, especially after the nullification of the proceedings before
the managing director, then the merits of the matter would remain
eternally undetermined, to the prejudice of one party or the other.
Section
89(2)
reads:
“(a)(2)
In the exercise of its functions, the Labour Court may: in the case
of an appeal –
(i)
Conduct a hearing into the matter or decide it on the record; or
(ii)
Confirm, vary, reverse or set aside the decision, order or action
that is appealed against, or substitute its own decision or order; or
(iii)…
(repealed); or
…
(repealed).”
In
Dalny
Mine v Banda
1999
(1) ZLR 220 (S)
McNally JA stated at 221B-C:
“As
a general rule it seems to me undesirable that labour relations
matters should be decided on the basis of procedural irregularities.
By this, I do not mean that such irregularities should be ignored. I
mean that the procedural irregularities should be put right. This can
be done in one of two ways:
(i)
By remitting the matter for hearing de novo and in a procedurally
correct manner;
(ii)
By the tribunal hearing the evidence de novo.”
He
continued at 222B:
“The
point I am making is that when the Tribunal decides, as it did in
this case, to exercise its powers under s97(4)(a)
of the Act,
and to 'proceed with the appeal by way of a hearing', then it is
starting afresh, as it were, on a clean page. The errors of the past
are no longer relevant.”
He
continued further at 222D:
“It
does not seem to me, with respect, to be a compliance with s4(1)
if the Tribunal, for technical reasons, compels an employer to
reinstate (or pay damages to) a person who has been clearly shown to
have committed a dismissible offence.”
The
applicable statute in the Dalny
Mine
case (supra)
was the Labour Relations Act. Section
97(4)(a) of that Act
is similar to section 89(2)(a) of the Labour Act which is the
applicable statute in
casu.
Section
97(4)(a) of the Labour Relations Act [Chapter
28:01]
(Act
No. 16 of 1985
as amended by Act
No. 20 of 1994)
reads:
“Upon
receiving notice of an appeal, the Tribunal may –
(a)
Proceed with the appeal by way of a hearing; or
(b)
Decide the appeal on the record; or
(c)
Remit the matter to the senior labour relations officer concerned for
further investigation, and, upon the conclusion of such
investigation, proceed with the appeal by way of a hearing or decide
the appeal on the record.”
The
similarity in the wording of the relevant portions of the two
sections (89(2) and 97(4)(a)) of the current and repealed statutes
respectively) justifies the applicability of the reasoning as cited
above from the Dalny
Mine
case to the instant case.
In
the result, the appeal succeeds for reasons different to those raised
in the grounds of appeal and consequently, with a result different to
that in the appellant's prayer.
Accordingly,
the following order is made:
1.
The appeal is allowed.
2.
The judgment of the Labour Court be and is hereby set aside.
3.
The matter is remitted to the Labour Court for a rehearing of the
appeal before a different judge of that court.
4.
Each party shall bear its own costs.
GARWE
JA: I agree
BHUNU
JA: I agree
Matsikidze
& Mucheche, appellant's legal practitioner
Transport
& General Workers Union, for the respondent
