CHEDA
J: This is an urgent chamber application
for an interdict seeking to suspend a disciplinary hearing which was set down
for hearing on the 6th April 2009.
Applicant is employed by second
respondent as its Sales Administration Manager and has been in that employment
since February 2002.
First respondent is the Chairperson of second
respondent, a Cement and Lime Manufacturing Company duly registered in terms of
the Laws of Zimbabwe.
The brief facts of this matter are
that applicant who is employed by first respondent as its Sales Administration
was suspended on the 19th day of March 2009 on allegations of having
been involved in practices inconsistent with his role, duties and
responsibilities. He was given notice to
attend a disciplinary hearing on the 30th day of March 2009. He
duly appeared on the date in question accompanied by his Legal
representative. However, first
respondent denied him permission to attend with his legal practitioner. It is that denial which has led to this
application.
Applicant contends that first
respondent's refusal amounts to:
1) a
violation of his constitutional rights,
2) offends
against the principles of natural justice
(Audi Alteram Partem) and,
3) will
result in both substantive and procedural unfairness.
Mr.
Sibanda for both respondents firstly argued that applicant has been tardy in
filing his documents as some papers served on respondents were not signed
including the certificate of urgency and are therefore defective. While I agree with him that there is a need
for documents to be signed, in my view, the fact that documents in possession
of the opposing party are not signed but filed does not make them defective to
an extent of making the proceedings fatal.
It is, however, necessary and courteous that all documents filed of record
should be authenticated. For the purposes
of progress, the court will condone the said omission, but, would like to issue
a stern warning to those legal practitioners who file and serve unsigned and
undated documents on the opposition. The
matter is therefore urgent and deserves the court's urgent attention.
The question that falls for
determination is whether or not applicant's denial of legal representation at a
disciplinary hearing is an infringement of the principles of natural justice.
In order to expediently resolve labour
disputes the Legislature enacted the Labour Relations Act [Chapter 28:01] which
in turn created the provision of various Codes of Conduct currently in
operation in both Industry and Commerce.
The objective of these Codes is to make the proceedings as simple, informal
and inexpensive as possible at a preliminary stage. It is for that reason that a person facing
disciplinary action has a choice of either being represented by either a Union
official, a member of the Worker's Committee, or by a colleague. In Chatira
v Zimbabwe
Electricity Supply Authority (ZESA) SC 83/2001, the court emphasized the
need for procedural fairness in dealing with disciplinary hearings. Ebrahim JA at page 3 of the cyclostyled
judgment stated:
“…..the
requirement of a fair hearing does not mean that employers must handle
disciplinary proceedings according to the rigorous standards of a court of
law. The rules of natural justice
require no more than that a domestic tribunal acts according to the common
precepts of fairness.”
It was also stated in that case that
in a hearing of misconduct it is not necessary that viva voce
evidence be led, but,
however, the employee concerned must be shown any statements or documentary
evidence that is being produced before the Disciplinary Committee but he cannot
insist that the person who made the statement be called for cross examination. This, in my view, goes to demonstrate, the
extent of the informal nature and simplicity of the proceedings at that
stage. In fact, COLMAN J in Heatherdale Farms v Deputy Minister of Agriculture 1980(3) SA486 went further
and stated that the employee need not be given an oral hearing or allowed
representation by an Attorney or Counsel or even an opportunity to
cross-examine and is not entitled to the discovery of documents. The same principle was adopted in the
following cases, Minerals Marketing
Corporation of Zimbabwe v Mazvimabvi 1995(2) ZLR 353(S); Zimbabwe Granite v
Workers' Committee Chairman SC99/96 and Nhari v Public Service Commission
1999(1) ZLR 513(S) which were referred to by respondent's counsel for which
the court is grateful.
From the authorities cited, I hold the
view that applicant's denial of legal representation at the proposed
Disciplinary Committee hearing as required by second respondent's Code of
Conduct does not offend against the principles of natural justice.
In the circumstances the application
is dismissed with costs.
Messrs Dube-Banda, Nzarayapenga and
partners, applicant's
legal practitioners
Joel Pincus, Konson
and Wolhutter, 1st and 2nd respondents'
legal practitioners
