GWAUNZA
DCJ
[1]
This
is an appeal against the entire judgment of the Labour Court handed
down on 10 March 2017. The Labour Court dismissed the appellant's
application for review challenging the disciplinary proceedings that
led to his dismissal from the first respondent's employment. There
were no appearances for the second and third respondents.
FACTUAL
BACKGROUND
[2] The
appellant was employed by the first respondent as its Chief Executive
Officer (hereinafter “CEO”) between the period 2009 until the
dissolution of its Board in 2013. The appellant had been employed on
a contractual basis with his subsisting contract having been renewed
in May 2011. On 14 November 2013, the then Acting Secretary for
Information, Media and Broadcasting Services, wrote to the appellant
placing him on leave with full pay, until further notice. The letter
stated that the appellant was placed on leave due to the exacting
challenges faced by the first respondent which required urgent
intervention through a full audit of its affairs. The appellant was
barred from visiting the first respondent's premises or issuing any
instructions to its staff. On 30 January 2014, the appellant was
notified of the allegations of misconduct against him which were said
to have been unearthed during the audit. The initial decision to
place the appellant on paid leave was rescinded and substituted with
leave without pay pending determination of the allegations against
him.
[3] On
18 November 2014, the appellant was duly served with a notice by the
first respondent's legal representatives, to attend a disciplinary
hearing to be presided over by the second respondent. The appellant
faced 32 charges of misconduct which were contained in a schedule
attached to the notice of the hearing. When the disciplinary
proceedings began, the first respondent abandoned 21 of the charges
against the appellant, leaving only 11. At the hearing, the appellant
argued that it was not competent for the first respondent to
undertake disciplinary proceedings based on allegations flowing from
an expired employment contract. This argument was based on his
interpretation of the Labour (National Employment Code of Conduct)
Regulations, 2006 (hereinafter, “SI 15/2006”).
[4] Counsel
for the appellant contended that for a person to be properly charged
with misconduct, he or she must still be an employee in terms of a
subsisting employment contract at both the time of the commission of
the offence and institution of misconduct proceedings. He further
submitted that what were now termed acts of misconduct had been
properly approved by the first respondent's Board. Counsel further
submitted that the integrity of the disciplinary proceedings was
further thrown into doubt by the direct role played by the Minister
of Information Media and Broadcasting Services, who initiated his
suspension.
[5] The
first respondent disputed the appellant's contention that it sought
to improperly charge him in terms of an expired employment contract.
It averred that the parties were engaged in a continuous employment
relationship which was highlighted by the renewal of the appellant's
contract in May 2011. Counsel for the first respondent placed
reliance on the Lesotho case of Limkokwing
University of Creative Technology Lesotho (Pty) Ltd v Mosia Nkoko and
Anor
LC/REV 58/12, whose import was that an employment relationship
becomes continuous, where the contract of employment is renewed
immediately upon the expiry of a preceding one. Accordingly, he
argued, since the acts of misconduct in question were committed
during the subsistence of an employment relationship between the
parties, the appellant was properly charged.
[6] The
disciplinary hearing chaired by the second respondent found the
appellant guilty of misconduct in respect of 7 of the 11 charges
levelled against him. These were counts 1, 2, 3, 6, 7, 21 and 23 on
the charge sheet. It is not in dispute that the second respondent
did not pronounce the verdict of dismissal against the appellant.
This was rather, done by the first respondent.
[7] Dissatisfied
with the disciplinary hearing's decision, the appellant filed an
application for review in the Labour Court. The basis of the
application was that there was gross irregularity, gross
irrationality and illegality in the manner that the disciplinary
proceedings were conducted and the decision reached. In particular,
the appellant alleged gross irregularity and irrationality, or
alternatively, illegality based on its review grounds 1.1 – 1.4. He
went on to allege gross irrationality and alternatively, illegality
and procedural irregularity on the basis of a second set of review
grounds, that is, grounds 3 - 3.5. While the manner the review
grounds are formulated is somewhat confusing, it is apparent that the
appellant effectively submitted two sets of review grounds, each with
its own alternative grounds for review.
[8] The
court a
quo
did not advert to the second set of review grounds (nor the
alternative thereof), but determined the matter on the basis of the
first set which alleged irregularity in the proceedings, as follows:
1.
a number of charges levelled against the appellant related to alleged
acts of misconduct arising from a contract of employment which had
expired;
2.
the first respondent at all material times either directed or
approved all acts of the appellant which were then later deemed as
misconduct on his part;
3.
the proceedings were initiated by the Minister of Information Media
and Broadcasting Services who was not a party to the contract of
employment; and
4.
the first respondent improperly imposed a penalty before the
disciplinary proceedings were completed, contrary to SI15/2006 and
section 12B(4) of the Labour Act (Chapter
28:01).
The
appellant consequently sought nullification of the disciplinary
proceedings and reinstatement as an employee of the first respondent.
[9] The
court a
quo
dismissed the appellant's application for review. It held that the
acts of misconduct in question were committed during the subsistence
of the parties employment relationship. The court found that the
appellant did not adduce any evidence to disprove the claim that he
enjoyed a continuous employment relationship with the first
respondent during the period 2009 to 2013. It stated that the renewal
of the contract in May 2011 did not vary the essential terms of his
employment as he remained both the Principal Accounting Officer and
CEO of the first respondent. For this finding, the court cited an
excerpt
from the case of van
Der Post v Twyfelhock Diamond Prospecting Syndicate
(1903)
20 SC 213,
to
the effect that
where
several or a series of contracts between the same parties are
concluded to effect a single purpose, they should be treated as one
contractual document.
[10] The
court a
quo
also relied on Air
Zimbabwe v Chiku Mensa & Anor
SC89/10,
as an authority supporting its decision to uphold the outcome of the
disciplinary proceedings. It was stated in that case that a person
guilty of misconduct should escape the consequences of his misdeeds
because he is innocent, not because of a failure to conduct
proceedings properly by another employee.
In
relation to the appellant's third ground of review the court held
that the disciplinary proceedings conducted by the second respondent
were not vitiated by virtue of the Minister of Information and Media
Broadcasting, (and not the first respondent, his former employer)
having authored the letter of suspension. The court took the view
that the absence of a letter of suspension was, in any case, not
fatal to the conduct of disciplinary proceedings. It cited in this
respect the following sentiments of the court in Shumbayaonda
v Ministry of Justice Legal and Parliamentary Affairs and Anor,
SC11/14:
“…Suspension
is not a prerequisite to the holding of disciplinary proceedings and
a disciplinary hearing does not have to take place during the period
of suspension…”
[11] Finally,
in so far as the final ground of review was concerned, the court a
quo
quoted the part of the second respondent's written decision of 15
April 2015, that specifically convicted the appellant of acts of
misconduct 1,2,3, 6,7, 21 and 23. The excerpt
also indicated that the second respondent had dismissed some
preliminary issues raised on behalf of the appellant. A chronological
analysis of the events that then ensued satisfied the court a
quo
that the first respondent had not 'prematurely concluded' the
disciplinary proceedings, as alleged by the appellant.
In
the final result the court a
quo
reached the decision that the disciplinary proceedings against the
appellant had not been irregularly conducted.
[12] Aggrieved
by the judgment of the court a
quo,
the appellant approached this Court on appeal. He prays that the
decision of the court a
quo
be set aside and substituted with an order granting the application
for review and setting aside both the disciplinary proceedings and
his dismissal. His grounds of appeal are set out as follows:
1.
The court a
quo
erred
and misdirected itself in law in holding that under the Labour
National Employment Code of Conduct Regulations, 2006 SI15/2006, the
appellant could be charged with, and convicted of alleged acts of
misconduct arising from an expired contract.
2.
The court a
quo
erred
in law in failing to find that the first respondent, through its
various agents either directed or approved all the acts of the
appellant which were then later construed as misconduct. The court a
quo
ought
to have found that the first respondent could not regard, as
misconduct, the actions it either directed or approved.
3.
The court a
quo
erred
and misdirected itself in law in failing to hold that it was not
competent for the first respondent to impose the penalty of dismissal
before its own appointed disciplinary authority had made a
determination on the appropriate penalty.
4.
The court a
quo
fell
into an error of law in failing to find that the appellant's
conviction was contrary to the evidence that was placed before the
disciplinary authority.
[13] At
the hearing of the appeal, the first respondent raised a preliminary
point challenging the validity of the appellant's second ground of
appeal. It asserted that the ground of appeal did not raise a
question of law. Rather, it attacked the factual finding of the court
to the effect that the appellant had tendered no evidence to support
his assertion that the first respondent's Board had approved most
of the actions that formed the basis of the misconduct charges
levelled against him. Per
contra
the appellant contended that the impugned ground of appeal raised a
procedural issue that attributed the acts of the employee to the
employer itself, that is, the first respondent. Counsel for the
appellant referred to Zvokusekwa
v Bikita Rural District Council
SC44/15, which held that it was not the formulation but the substance
of a ground of appeal that matters.
[14] After
hearing argument from both counsel, the court found merit in the
submissions of the first respondent and upheld its point in
limine.
The
court noted that the court a
quo
clearly found as a matter of fact that the appellant had not tendered
any evidence to substantiate the assertion that the first
respondent's Board had indeed approved the actions that were then
converted into misconduct charges against him.
As a factual finding, the appellant could only have successfully
impugned it upon proof that the finding was so grossly unreasonable
that no other court, properly applying its mind to the issue, could
have reached the same conclusion. (See
Barros and Chimphonda, 1999 (1) ZLR (S) 58 at p62).
The appellant not having proved any such misdirection on the part of
the court a
quo,
the court accordingly struck
out the appellant's second ground of appeal.
[15] The
appellant's fourth ground of appeal in
casu
addresses an issue that was included in his alternative set of review
grounds a
quo.
It is evident from the record that the court a
quo,
having determined the review application only on the basis of the
main review grounds advanced by the appellant, did not address the
appellant's alternative set of review grounds, which included the
issue raised in the appellant's fourth ground of appeal. To the
extent that an appeal court's mandate is to test the correctness or
otherwise of a lower court's decision and the reasoning behind it,
the appellant's fourth ground of appeal is misplaced. This is
because the ground calls upon this Court to determine, in the first
instance, an issue that the court a
quo
did not consider. The ground of appeal is therefore invalid and is
accordingly struck out.
This
leaves the appellant with two grounds of appeal, which the court will
now consider.
Whether
or not the court a
quo
erred at law by making the finding that the appellant could be
charged with acts of misconduct arising from an expired contract of
employment
[16] Counsel
for the appellant submitted to this Court that in terms of SI
15/2006, it is not competent for an employee to be charged with acts
of misconduct purportedly committed during the currency of an expired
contract of employment. He emphasised that a fixed-term contract of
employment lapses automatically on the date of its expiry, and as a
result, there was no such thing as the renewal of a fixed term
contract. Rather, so the argument goes, the old contract lapses and
an entirely new contract comes into being. Counsel contended that SI
15/2006 employs a rigid scheme that provides an avenue for an
employer to terminate an existing contract of employment owing to its
serious breach by the employee. Further, that a person ought to still
be an employee in terms of a subsisting contract of employment at
both the time of the commission of the offence and the institution of
misconduct proceedings by the employer. He averred that the
misconduct contemplated by section 4 of SI 15/2006 as read with
section 6 of the same statutory instrument refers to a subsisting
employment contract.
[17] Save
for his own interpretation of these provisions, Counsel cited no
authority to support his assertions in this respect. Nevertheless, on
those grounds, it was Counsel's submission that only one out of the
11 charges brought against the appellant was competent as it was
allegedly committed during the currency of his existing contract. He
went on to argue that it was improper to combine in the same
proceedings, alleged acts of misconduct relating to an expired
contract of employment and a subsisting one. That being the case,
Counsel contends the first ground of appeal ought to succeed since
the charge relating to the subsisting contract could not be severed
from the others.
[18] In
response, counsel for the first
respondent
disputed
and challenged the appellant's strict interpretation of SI15/2006
concerning the effect of the expiry of a contract that is immediately
renewed without interrupting the employee's work nor the employment
relationship between the parties. Counsel submitted that the relevant
provisions of SI15/2006, if properly interpreted, would not protect
an employee who committed acts of misconduct during a previous
contract of employment, from being charged with such misconduct
during the currency of a subsequent contract. Counsel further
submitted that in any case, there was no cessation in the employment
relationship enjoyed by the parties. The contract renewal in May 2011
was essentially on the same terms as when the appellant was engaged
as the first respondent's CEO and Principal Accounting Officer. He
contended that the acts of misconduct only came to light following
the appellant's suspension and consequent audit proceedings.
Counsel submitted that it was competent to charge the appellant in
respect of acts of misconduct committed during the currency of his
prior contract as he enjoyed a continuous employment relationship
with the first respondent.
[19] Counsel
for the first respondent bemoaned the dearth of judicial
pronouncements in our jurisdiction on the issue of whether or not it
is competent to charge an employee with acts of misconduct committed
during the currency of an expired employment contract which is
immediately replaced with a new one on substantially the same terms.
He sought to argue that an employment contract, to begin with, was a
contract and thus subject to the basic tenets of the law of contract.
He placed reliance on the case of Van
Der Post v Twyfelhoek Diamond Prospecting Syndicate
(1903)
20 SC 213,
where
the following was held:
“Where
several or a series of contracts between the same parties are
concluded to effect a single purpose, they should be treated as one
contractual document and where there is doubt as to the meaning, they
should be read together to determine the intention of the parties and
the same principles of interpretation should be applied in the case
of any other contract.”
[20] My
reading of this case however suggests that it was concerned with a
very different set of circumstances to those at hand. The contracts
in issue in that case were neither related to an employment
relationship nor were they successive in the sense of one expiring
and a new one immediately replacing it. More significantly, the case
was concerned about how to interpret seemingly contradictory
provisions in a number of concurrent contracts governing the sale of
a property. Hence the finding that such contracts, for purposes of
interpretation of their respective provisions, should be treated as
one. The case is therefore distinguishable from the one at hand,
where the question of interpreting any provisions of the appellant's
expired and subsequent employment contacts did not arise.
[21]
However, the court finds the other authority cited by the first
respondent to be entirely persuasive in
casu.
This is the Lesotho case of
Limkokwing University of Creative Technology Lesotho (Pty) Ltd v
Mosia Nkoko and Anor
LC/REV
58/12.
The employee in that case, a lecturer on a fixed term contract, was
charged with misconduct and subjected to a disciplinary hearing on 5
July 2011. Despite this, after his contract expired on 14 July 2011,
it was immediately renewed for a further year with effect from 15
July 2011. That contract was due to expire on 17 July 2012. However,
the employee was subsequently dismissed from employment on 19
September 2011 based on the disciplinary proceedings held on 5 July
2011. The dismissal was effected during the subsistence of the
renewed fixed term contract while the disciplinary proceedings had
been conducted during the employee's previous contract. Similar
arguments to those made for the appellant in
casu,
were advanced before the court in Lesotho. It was argued for the
employee that because the dismissal was executed after the expiry of
his previous contract, his employer was in breach of the employment
contract since the employee could not be accused of incidents that
happened during the currency of an otherwise expired contract.
[22]
On the other hand the University argued that when the employee's
contract expired and was renewed on 15 July 2011, the employment
contract became continuous, thus giving the employer every right to
take disciplinary steps against him. Unlike in our jurisdiction where
there is no provision directly addressing the issue, counsel for the
University relied on a provision in the country's Labour Code
Order, 1992, which defined 'continuously employed' as follows:
“… means
employed by the same employer, including the employer's heirs,
transferees and successors in interest for a period that has not been
interrupted for more than four weeks in each year of such employment,
(emphasis added) during which four-week period there was no contract
of employment in existence and no intention of the employer to renew
it once that period has elapsed …”
The
court then found, on the basis of this provision, that upon renewal
of his contract, the employee's employment had become continuous,
meaning he could properly be charged with acts of misconduct
committed during the currency of his expired fixed term contract.
[23] The
court finds merit in the first respondent's submissions on the
interpretation to be given to sections 4 and 6 of SI15/2006. It is
also persuaded by counsel's submissions concerning the existence of
a continuous employment relationship between the appellant and the
first respondent, and its effect on the propriety or otherwise of the
charges of misconduct brought against the former. This is
notwithstanding the lack of any statutory provision similar to the
one in Lesotho. The principle coming through from the Lesotho case,
and the ratio
therein, the court finds, can properly be adopted in
casu.
[24] SI
15/2006 deals with misconduct under section 4 where its introductory
part reads as follows:
“An
employee commits a serious misconduct if he or she commits any of the
following offences….
(a)
any act of conduct or omission inconsistent with the fulfilment of
the express or implied conditions of his or her contract; or
(b)–(h)…”
The
section is read together with the operative part of section
6
of the same statutory instrument which states the following:
“6(1)
Where an employer has good cause to believe that an employee has
committed a misconduct mentioned in section 4, the employer may …”
[25] The
court is not persuaded that the interpretation ascribed to these
provisions by the appellant is correct. The appellant was an employee
of the first respondent in terms of the old contract up until
midnight of the last day of the contract. In other words, he
literally went to bed as first respondent's employee and woke up
still its employee on essentially the same terms of employment,
albeit
under the terms of a new contract. He proceeded to report for work as
usual, and to carry out his duties. It has not been averred that he
picked up any terminal benefits attendant on the expiry of the old
employment contract. Thus, notwithstanding the technicality
concerning the dates of expiry and renewal of the contracts in
question, the employment relationship continued. It is to be noted
that this employment relationship started in 2009. The court a
quo
pertinently observed that the appellant had not adduced any evidence
to prove that for the period 2009 to 2013, he was not in a continuous
employment relationship with the first respondent.
[26] Against
this background, to then suggest, as the appellant does, that
'employee' for purposes of SS 4 and 6 of SI15/06 refers only to
one who both commits and is charged with the misconduct in question,
during the currency of a subsisting contract and not a previous one,
is to advocate for an absurdity.
For
it would mean that an unscrupulous employee who is confident of a new
employment contract upon the expiry of a current one, can commit with
impunity, a serious act of misconduct that he knows would only be
discovered after his contract has expired and a new one has taken
effect. Going by the appellant's interpretation, and irrespective
of any consequent damage to the employment relationship between the
parties (since he would have revealed himself as an unworthy
employee), the offending employee would not only be allowed to get
away with it, but the employer would also, perforce, have to retain
him as an employee under the new contract.
[27] It
is an accepted principle of the law that the Legislature is presumed
not to intend any absurdity to arise in the interpretation of the
laws that it enacts. This point is highlighted thus in Webster
Tongoona Rushesha & Ors vs Alexious Mashingaidze Dera & Ors
CCZ24/17:
“It
is a sound principle of the law that when interpreting a statutory
provision, the court must be alive to the presumption that the
legislature does not intend irrational or unreasonable results. The
interpretation of a statute and indeed a constitution is based not
only on what the provision says but also on what the provision does
not say.
(my emphasis)”
Applied
to the circumstances at hand, the court holds that the absence from
sections 4 and 6 of SI15/2006 of words expressly including an
employee who might have committed acts of misconduct during the
currency of a previous employment contract, does not detract from the
intended meaning of the two provisions in question. Accordingly, the
absurdity alluded to could not have been in the contemplation of the
Legislature.
[28] A
contract of employment renewed immediately after an expired one,
normally is indicative of the trust and confidence that the employer
has in the employee's ability and competence in the performance of
his/her work. By no stretch of the imagination should the renewal of
a contract be seen as a means to wipe away any acts of misconduct
committed by the same employee during the currency of the previous
contract or contracts where such acts only come to light after the
expiry and renewal of the old and new contracts respectively. Such a
position would be untenable, and clearly inimical to the wellbeing of
any enterprise, business or other employer/employee concern. To the
extent that it would amount to rewarding rather than punishing an
errant employee, it runs counter to the letter and spirit of sections
4 and 6 of SI15/06. These provisions are concerned with bringing to
book an employee who has committed an act of misconduct. Pertinently,
at the time that he was charged with the acts of misconduct in
question, the appellant was in any event, an employee of the first
respondent, and not an ex-employee.
The
court therefore finds that the appellant fell squarely into the
category of employees referenced in sections 4 and 6 of SI 15/06.
This is notwithstanding the fact that the acts of misconduct in
question were committed during the currency of the appellant's
previous contracts of employment.
[29] As
for the continued working relationship between the parties, the court
finds the following excerpt
instructive concerning the relationship between a contract and the
employment relationship that it creates between the employer and
employee:
“...the
employment contract brings into being the relationship that labour
legislation seeks to regulate. However,
the agreement no longer forms the exclusive basis for determining
their subsequent rights and obligations;
once parties have concluded an employment contract, the content and
duration of the ensuing relationship are regulated to a considerable
extent by statute. The
employment relationship is thus something distinct from and wider
than the contractual relationship.
The contract of employment may therefore be regarded as little more
than the founding act of a relationship the content and duration of
which is regulated by statute, regulation or collective agreement.
(my
emphasis)”
(See
John Grogan's 'Workplace Law' 11th
Ed at p52)
[30] Relating
this to the circumstances of this case, the position is confirmed
that the appellant cannot rely solely on his previous contracts of
employment to argue that he cannot be charged with any act of
misconduct committed during the currency of those contracts. On the
basis of the authority cited above, the expired contracts no longer
formed the exclusive basis for determining the parties subsequent
rights and obligations. It follows that the first respondent was
within its rights to charge the appellant with all acts of misconduct
committed during the employment relationship that stretched from and
beyond the expired contracts, into the new contact.
[31] To
the extent that it may be salutary to have a provision to that
effect, there seems to be a lacuna
in our law regarding the issue of whether a party can be dismissed
for acts of misconduct committed under a prior employment contract by
the same employer. It is apparent that the appellant seeks to escape
the consequences of his misconduct on the strength of a grey area in
the existing legislation. He should not be allowed to do so, but must
be made to face the consequences of his actions.
[32]
When all is told, the court finds to be unassailable, the conclusion
reached by the court a
quo
that the appellant was engaged in a continuous employment
relationship with the first respondent at the time that he was
charged with the acts of misconduct in question. That relationship
survived the expiry of his previous contract of employment and
seamlessly extended into his new contract. That being the case, the
court is satisfied that the appellant was properly charged with the
acts of misconduct in question and that procedurally, he was properly
convicted.
The
appellant's ground of appeal on this issue is without merit and is
accordingly dismissed.
Whether
or not the court a
quo
erred at law by holding that it was competent for the first
respondent to dismiss the appellant before the disciplinary committee
had made its determination
[33] The
appellant submitted that the first respondent pronounced the penalty
of dismissal improperly, having done so before the disciplinary
committee had made its determination on that issue. In the
appellant's heads of argument and in oral submissions before the
court, counsel for the appellant sought to expand the scope of this
ground of appeal by impugning the determination and pronouncement of
the penalty by the first respondent rather than the disciplinary
authority. Counsel for the appellant contended that he was
challenging both the timing of the penalty and the medium by which
the penalty was determined and pronounced. He submitted that there
was no distinction between the two. Per
contra,
the first respondent averred that this latter point was not argued
before the court a
quo.
It asserted that the appellant's argument a
quo
was that he was dismissed before the disciplinary committee had
pronounced a penalty.
[34] It
is the observation of this Court that the appellant's papers a
quo
and,
in this Court,
explicitly
impugned the timing
of his dismissal rather than the agency by and through which it was
pronounced. As a consequence, he did not advance any argument to
support his contention that the first respondent did not have the
authority to pronounce the penalty of dismissal against him. It may
not always follow from this that once you attack the identity and
authority of the perpetrator, you automatically impugn the time at
which he or she instigates the event, and vice
versa.
The one goes to the power or jurisdiction of the perpetrator to do
what he or she did, while the other goes to the appropriateness of
the time at which the event happened. While there might indeed be a
difference between the timing of an event and the identity of the
person who orchestrates it, the circumstances of this case are such
that both the timing and the perpetration of the impugned action were
at the instance of one entity, that is the first respondent's
Board.
[35] A
quo,
and in its first ground of appeal before this Court, the appellant
was pre-occupied with attacking the timing of the pronouncement of
the penalty of dismissal, and was seemingly not concerned about the
identity of the medium through which it was pronounced. This led, as
the first respondent submits, to the court a
quo
tracing the chronology of events up to and leading to the dismissal
of the appellant on 21 July 2015. The court found this happened after
the appellant had filed his 'closing submissions'
on 8 March 2015. The court did not interrogate the question of
whether the first respondent had the requisite authority to determine
and pronounce the verdict of dismissal under the circumstances, for
the reason that the matter was not raised or argued before it. The
first respondent makes the argument that it would be unfair to
reverse the decision of the court a
quo
based on a point that had not been canvassed before it.
[36] The
court finds that the appellant does indeed seek to raise an issue not
raised or considered by the court a
quo.
The court finds, however that the issue may properly be considered by
this Court alongside that of the timing of the pronouncement of the
penalty. Firstly, the point in issue is one of law, which may be
raised at any time before the court, even on appeal. Secondly, both
circumstances arise from exactly the same set of facts, which are
already before the court. The matter was thus apparent ex
facie
the pleadings on record. Thirdly, the first respondent has not shown
that any inconvenience or unfairness would be suffered by it as a
result of the issue being considered on appeal. In this respect, the
following principles enunciated by the court in Zimasco
(Pvt) Ltd v Marikano,
2014
(1) ZLR 1 (S)
are apposite:
“It
is settled law that a question of law can be raised at any time, even
for the first time on appeal, as
long as the point is covered in the pleadings and its consideration
involves no unfairness to the party against whom it is directed.
See
Ahmed v Manufacturing Industries (Pvt) Ltd S294-96 at p17 and
Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S) at 157A. (my
emphasis)”
[37] It
is pertinent to note, in any case, that the appellant seeks the same
relief, that is the setting aside of his dismissal by the first
respondent, on the basis of his submissions on either the stage at
which the penalty of dismissal was pronounced
or
the medium through which this was done. Accordingly, a decision on
the appellant's ground of appeal as formulated, as much as one
pertaining to the medium through which the penalty was determined and
pronounced, would determine whether or not the appellant is entitled
to the relief sought. It becomes, in the end, 'a difference with no
distinction'.
[38] A
quo,
the
appellant's
ground of review concerning the timing of the pronouncement of the
penalty of dismissal read as follows:
“The
first respondent arrived at a decision on the penalty before the
disciplinary proceedings were completed, in contravention of
SI15/2006 as well as section 12B of the Labour Act (Chapter
28:01).”
The
appellant in his third ground of appeal in
casu
elaborated on this argument by stressing that the first respondent
had imposed the penalty of dismissal before its own appointed
disciplinary authority had made a determination on the appropriate
penalty. The court a
quo,
as already indicated, made the finding that the first respondent had
not 'prematurely concluded' the disciplinary proceedings when it
pronounced the penalty of dismissal. The court stated as follows:
“The
applicant filed his closing submissions (actually, submissions in
mitigation) on 8
May 2015.
On 19 May 2015 the
submissions were considered by the board. It was then resolved that
the contract should be terminated with effect from 30 January 2014.
The decision was communicated on 21 July 2015 through a letter dated
17 July 2015. It
is therefore not correct to say the board prematurely concluded the
disciplinary proceedings.
(my
emphasis)”
[39] This
finding by the court a
quo
echoed the first respondent's response to the allegation by the
applicant in his founding affidavit that the former had arrived at a
verdict before the disciplinary authority had done so. The first
respondent responded as follows in its opposing affidavit:
“This
is denied. Retired Judge James Devittie handed down his determination
on 22 April 2015. The applicant filed his submissions in mitigation
on 8 May 2015. Thereafter
on Tuesday 19 May 2015, the ZBC Board of directors sat and
considered the nature of the offences with which applicant had been
found guilty, and the submissions in mitigation filed by applicant.
The
ZBC Board of Directors resolved that a penalty of dismissal met the
justice of the case.
Applicant's conduct particularly acts of theft go to the root of
the employer-employee relationship. The
penalty of dismissal was handed down subsequent to the completion of
the disciplinary hearing and after considering the judgment by
Justice
Devittie
and whether there were any mitigatory circumstances. (my
emphasis)”
[40] The
above excerpts
capture a factual conspectus
which is not disputed by the parties. The excerpts
also make it abundantly clear that the first respondent, and the
court a
quo,
subscribed to the view that the disciplinary proceedings were
'completed' upon the pronouncement of the guilty verdict by the
disciplinary authority. That being the case, according to that view,
the first respondent through its Board was at large to thereafter
step in and consider the appellant's submissions in mitigation and
other factors, determine, and pronounce what it considered to be the
appropriate penalty.
[41] In
addition to the timing of the event, the appellant takes issue with
this conflation of the roles played by the first respondent and the
hearing authority in a situation where the latter ought to have,
itself, completed the proceedings. It is contended that the
proceedings could only have properly ended with the disciplinary
authority hearing the parties submissions in aggravation and
mitigation, and thereafter considering and pronouncing the
appropriate penalty. Counsel for the appellant contended in this
respect that the first respondent 'usurped' the responsibility of
its own disciplinary authority and 'completed' the disciplinary
proceedings itself. He asserted further as follows in the appellant's
heads of argument:
“A
proper reading of SI15/2006 in the light of the lawmaker shows that
an employer who has appointed a disciplinary authority must live with
its decision. It is unlawful for the employer to split the
disciplinary process into two phases, namely conviction and sentence,
with the disciplinary authority handling the conviction phase while
the employer takes over at the sentencing stage.”
[42] The
court finds there is merit in the appellant's submissions as
outlined above. While it is inelegantly formulated, the import of the
disciplinary procedure laid out in section 6 of SI15/2006 is that
disciplinary proceedings against an employee facing misconduct
charges are conducted by the employer, or a disciplinary authority
appointed by it. The tone of section 6(4)(b) makes it clear that
where a disciplinary authority is appointed, it is expected to
conduct the hearing as set out therein, including hearing submissions
in mitigation, as well as determining and imposing the 'ultimate'
penalty. The hearing in other words is only completed after the
'ultimate' penalty is imposed. The impression created in the end
is that the disciplinary authority, once it starts the hearings,
enjoys a great measure of autonomy in the conduct of the hearing,
until it has completed the process.
[43]
Considerations of fairness and the interests of justice in
disciplinary proceedings support this procedural route. It is also a
route that is emphasised in various authorities on the subject. In a
section of the book 'Workplace
Law' (11th
Ed. at p285)
by the learned author John
Grogan, that addresses the requirements of fair disciplinary hearing,
the following is stated:
“As
in criminal proceedings, the
decision of
the presiding officer
should be made in two distinct stages.
First, the guilt of the accused employee should be determined on the
evidence, without reference to the employee's disciplinary record….
Secondly and after the verdict is decided, a penalty must be
determined which
is appropriate to the offence and the particular employee… (my
emphasis)”
[44] The
above caption underlines three procedural issues. Firstly, the
decision, must be that of the presiding officer. Secondly the
decision consists of two parts, the verdict and the penalty. Thirdly,
and to that extent, a 'decision' that ends with just the verdict
would not be complete. What should and generally happens after a
guilty verdict is pronounced, is aptly articulated as follows in what
is termed 'corporate disciplinary hearing templates for misconduct'
by the learned author Michael
Opperman
in his book 'A
Practical Guide to Disciplinary Hearings' at p6:
“Stage
5 – Mitigation, aggravation and sanction
1.
If the employee is found guilty, the employer may formulate arguments
in aggravation and the employee may advance arguments in mitigation
of the offence, for purposes of the sanction to be imposed;
2.
This process will be
in the form of a
mini hearing
and is removed from the facts of the main hearing;
3.
The (disciplinary) panel will then adjourn once more and consider a
sanction befitting the verdict and the arguments in aggravation and
mitigation.”
(my
emphasis)
[45] It
would follow from what is set out above that, after it pronounces a
verdict of guilty, only the disciplinary authority is mandated to
move on to the part of the proceedings that relates to mitigation,
aggravation and sanction. Accordingly, the assumption of this mandate
by someone who, as happened in
casu,
did
not preside over the proceedings nor participate as a member of the
disciplinary panel, would be highly irregular. That the person
happened to have been the employer of the appellant and therefore, an
interested party in the proceedings, could only have served to
compound the irregularity. The first respondent, as the employer,
chose to appoint the disciplinary authority that presided over the
proceedings. All that it had to do, after that, was to let the
disciplinary authority conclude its work by imposing the penalty that
it would have adjudged appropriate under the circumstances. Only
thereafter could the first respondent have properly taken the matter
on and proceeded to determine the appellant's fate.
[46] The
evidence on record shows that the appellant expected the convening,
by the hearing officer, of the 'mini-hearing' on 'Mitigation,
Aggravation and Sanction' that is listed by the authority cited
above, as the final stage in disciplinary proceedings. The
chairperson of the disciplinary hearing, on or about 25 June 2015
received a letter to this effect from the appellant's legal
practitioners, Messrs
Mawire JT & Associates:
“Re:
ZBC (Pvt) Ltd vs Happison Muchechetere: Mitigation Hearing
We
refer to the above matter in which you availed your determination on
the verdict on 22 April 2015. We filed our written mitigatory
submissions on 7 May 2015. We now enquire as
to when you intend to invite the parties for a mitigation hearing.
Our client is now anxious to have the matter completed.” (my
emphasis)
[47] While
there is no record of any response to the letter, by the chairperson
of the disciplinary authority, the letter terminating the appellant's
employment removes any doubt as to what then ensued. As already
indicated, the letter advised the appellant that following the
verdict of guilty pronounced by the disciplinary authority, the full
Board of the first respondent on 19 May 2015 sat to consider the
submissions made on his behalf in mitigation and resolved that
termination of his contract of employment would 'meet the justice
of the case.' The first respondent, through its Board, as argued
for the appellant, clearly jumped the gun, as it were, and assumed a
responsibility that was properly meant to be discharged by the
hearing authority.
[48] In
that way, the first respondent interfered with on-going proceedings
and irregularly brought them to an end. This clearly cast into
serious doubt the fairness of the proceedings post the pronouncement
of the guilty verdict by the disciplinary authority. It does not
escape notice that the Board, having taken over a quasi-judicial role
that it should not have done after the parties had filed submissions
in aggravation and mitigation, is said to have related only to the
appellant's submissions in mitigation and not the respondents own
submissions in aggravation. This circumstance ran counter to the
accepted procedure where an independent tribunal weighs and balances
the mitigating and aggravating features of the offence in question
against each other, before reaching and pronouncing an appropriate
penalty. The
appellant had the right to have his submissions in mitigation
considered and assessed by the same authority that had presided over
the disciplinary proceedings, before pronouncement by it, of the
penalty. By the same token, the first respondent should have allowed
its own submissions in aggravation, to be heard and assessed by the
same hearing authority.
[49] Although
not argued, the point must also be made that section 69 of the
Constitution of Zimbabwe Amendment (No.20) Act 2013, guarantees the
right of a litigant to a fair hearing before an independent and
impartial court or tribunal. The first respondent was a party to the
proceedings and had an interest in seeing the appellant dismissed
from his employment. Having taken over a crucial part of the
disciplinary process from the independent hearing authority, the
court finds that the first respondent, through its Board, crucially
undermined the fairness of the sentencing part of the disciplinary
proceedings.
This could only have been to the detriment of the appellant. Conduct
that conjures the much-condemned circumstance where someone is seen
to act as both a prosecutor and judge in the same cause, flies in the
face of the time-honoured adage 'justice must not only be done, but
must be seen to be done'.
[50] The
court therefore finds that in all respects, the conduct of the Board
as outlined, constituted gross irregularity whose effect was to
render the part of the disciplinary proceedings that pertained to
'mitigation, aggravation and sanction' a nullity. The conduct was
without any legal basis, and therefore surpassed the bounds of what
would ordinarily be regarded as a procedural faux
pax
meriting
disregard or
condonation
by a tribunal or court in the determination of labour matters. The
court a
quo
accordingly erred in its finding that the following excerpt
was
applicable:
“…a
person guilty of misconduct should not escape the consequences of his
misdeeds because of a failure to conduct proceedings properly by
another employee. He should escape such consequences because he is
innocent. (Air
Zimbabwe v Chiku Mensa & Anor
SC89/10)”
The
disciplinary authority in
casu
was prevented from conducting 'the proceedings properly' by the
employer who, acting on some undefined basis, stepped in midstream of
the disciplinary proceedings, and purported to complete the process
itself.
Accordingly,
the 'sentencing' stage of the proceedings cannot stand and must
be vacated. It is important that the disciplinary authority be
allowed to properly complete its mandate.
DISPOSITION
[51]
What was before the court a
quo
were review proceedings. Of the appellant's two valid grounds of
appeal, the first lacks merit and will be dismissed. The second
ground of appeal, being meritorious, will be upheld. The court a
quo,
acting on the basis of a wrong procedural principle,
erred
in its finding that the disciplinary proceedings properly ended with
the pronouncement of the guilty verdict against the appellant.
In
the result, it is ordered as follows:
1.
The appeal succeeds in part, with each party bearing its own costs.
2.
The judgment of the court a
quo
is set aside and substituted with the following:
'(a)
The applicant's first, second and third grounds for review
are dismissed;
(b)
The appellant's fourth ground for review is upheld.
(c)
The matter is remitted to the disciplinary authority for it to
consider the parties submissions in mitigation and aggravation,
and thereafter, to pronounce the appropriate penalty against the
applicant.
(d)
Each party shall bear its own costs.'
UCHENA
JA: I
agree
MAKONI
JA: I
agree
Lovemore
Madhuku Lawyers,
appellant's legal practitioners
Scanlen
& Holderness,
1st
respondent's legal practitioners
1.
These
were, in fact, submissions in mitigation
