The Appeals Board considered the fact that the case had been appealed to the NEC out of time. The excuse given by the Bank was that the case had erroneously been sent to another Grievance and Disciplinary Committee. However, the Appeals Board did not feel that a mistake like that was a valid excuse for submitting a late appeal. The Bank has vast experience in dealing with disciplinary issues, and the procedure is very clear in the Code of Conduct. 

This is an appeal against the decision of the Labour Court setting aside the suspension and dismissal from employment of the respondent by the appellant and re-instating the respondent to his former position without loss of salary and benefits.

The background to this matter is as follows.

The respondent was employed by the appellant as its Chief Executive Officer. In terms of the contract of employment signed by the two parties, the respondent's conduct at the workplace was to be “regulated through the Staff Code of Conduct and the Labour Relations Act [Cap. 28:01] as well as other related Statutory Instruments.” It was further agreed that all disciplinary and appeals procedures were to “be handled in conformity with S.I.371 of 1985 and/or according to the Code of Conduct of the organisation.”

In December 2006, the respondent was suspended from employment without benefits in terms of section 4 of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 (“the National Employment Code of Conduct”) and also in terms of the Labour Relations (Employment Codes of Conduct) Regulations S.I.379 of 1990, and, further, in terms of the Chikomba Rural District Council Code of Conduct. In due course, the respondent appeared before a Disciplinary Committee facing eight (8) charges of misconduct as defined in section 4 of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006. He was found guilty of six of the eight charges and was dismissed from employment. Dissatisfied, the respondent lodged an application for review in the Labour Court. Essentially, he sought an order setting aside the decision of the Disciplinary Committee on the basis that the appellant should have conducted the disciplinary proceedings in terms of its Code of Conduct and not the National Employment Code of Conduct.

The Labour Court accepted this submission and consequently made the order that is the subject of this appeal.

The appellant, in its grounds of appeal, has attacked the decision of the Labour Court on several bases. These are:

1. That the court erred at law in concluding that the appellant's use of the procedure provided for in the National Employment Code of Conduct was fatal to the disciplinary proceedings conducted against the respondent.

2. That the court misdirected itself in failing to appreciate that the contract of employment signed by the appellant and the respondent allowed the appellant to use either its Code of Conduct or the National Employment Code of Conduct in conducting disciplinary proceedings against the respondent.

3. That the court erred in disregarding the provisions of the contract of employment signed by the parties in terms of which both parties expressly agreed that the appellant's Code of Conduct, the Labour Relations Act [Chapter 28:01] and other related statutory instruments, were to govern labour disputes between the parties.

4. That the court adopted an over-fastidious approach in interpreting the National Employment Code of Conduct and in the process resolved a labour dispute on the basis of a legal technicality despite the overwhelming evidence which pointed to the respondent's guilt.

The above grounds raise one issue only and that is whether, at law, the appellant, which had a registered Code of Conduct, was entitled to discipline the respondent using the National Employment Code of Conduct.

The starting point is section 12B of the Labour Act [Chapter 28:01]. That section provides, in relevant part, as follows:

“12. An employee is unfairly dismissed –

(a) If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or

(b) In the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9).”…,.

The Labour (National Employment Code of Conduct) Regulations, 2006 were made in terms of section 101(9) of the Labour Act [Chapter 28:01]. Those Regulations also provide, in section 5, as follows:

“5. Termination of contract of employment

No employer shall terminate a contract of employment with an employee unless -

(a) The termination is done in terms of an employment code which is registered in terms of section 101(1) of the Act; or

(b) In the absence of the registered code of conduct mentioned in (a), the termination in terms of the National Employment Code of Conduct provided for under these regulations; or

(c) …,.

(d) …,.” …,.

Section 101 of the Labour Act [Chapter 28:01] provides that a registered employment code shall be binding in respect of the industry, undertaking or workplace to which it relates.

It is the appellant's contention before this court, as it was in the court a quo, that the appellant was entitled to use either the Labour (National Employment Code of Conduct) Regulations, 2006 made under the Labour Act [Chapter 28:01], or its Code of Conduct, or both, as this was specifically agreed upon in the contract of employment signed by both parties.

There can be no doubt, regard being had to the provisions in the Labour Act [Chapter 28:01] and the Labour (National Employment Code of Conduct) Regulations, 2006, to which reference has been made, that the submission by the appellant that it was entitled to use either its employment code, or the Labour (National Employment Code of Conduct) Regulations, 2006, or both, is not tenable. Both the Labour Act [Chapter 28:01] and the Labour (National Employment Code of Conduct) Regulations, 2006 are clear that the National Employment Code of Conduct contained in the Labour (National Employment Code of Conduct) Regulations, 2006 can only be invoked where there is no registered Code of Conduct. Since it is common cause that the appellant does have a registered Code of Conduct, the termination of a contract of employment of any of its employees had to be in terms of its Code of Conduct and not the National Employment Code of Conduct. 

The appellant therefore erred in terminating the respondent's employment in terms of the National Employment Code of Conduct….,.

I am satisfied that the court a quo was correct in coming to the conclusion that the suspension and dismissal of the respondent by the appellant was null and void. The appeal must therefore fail.

The appeal is accordingly dismissed with costs.

This is an appeal from a judgment of the Labour Court upholding a decision of an arbitrator setting aside the dismissal of the appellant's employees who had been found guilty of an act or conduct inconsistent with the fulfilment of express or implied conditions of contracts of employment in that they had taken part in an unlawful collective job action.

The appellant's employees were members of the respondent. They engaged in an unlawful collective job action from 4 to 23 October 2006. It is common cause that at the time the employees engaged in the collective job action, on 4 October 2006, they had not given the fourteen days written notice of their intent to resort to such action on that day. They had not satisfied the other matters required under section 104(2) of the Labour Relations Act [Chapter 28:01] (“the Act”).

After the unlawful collective job action ended, the appellant commenced disciplinary proceedings against each employee who had taken part in the collective job action.

On 8 December 2006, the employees were individually charged with conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment in that he had taken part in the unlawful collective job action. The allegation was that the employees had contravened section 12B(2)(b)(1) of the Labour Relations Act [Chapter 28:01].

The disciplinary hearings were conducted in terms of section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003 (“the Regulations”).

The employees were found guilty of the misconduct charge and dismissed from employment.

The respondent took up the case of the dismissal of the employees with a Labour Officer on the ground that the dismissal constituted an unfair labour practice.

The contention was that the appellant should not have charged the employees individually with conduct they committed collectively as a group. The argument was that disciplinary proceedings ought to have been commenced against the employees as a group on the ground that they took part in an unlawful collective job action in terms of the provisions of Part XIII of the Labour Relations Act [Chapter 28:01].

The appellant accepted that the employees had taken part in an unlawful collective job action. It denied the accusation that, in instituting disciplinary proceedings against each employee on the charge that he had committed an act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment in that he had taken part in an unlawful collective job action, it committed an unfair labour practice.

The argument was that there was no provision in Part XIII of the Labour Relations Act [Chapter 28:01] to the effect that an employer who wishes to take disciplinary action against an employee for having taken part in an unlawful collective job action can only do so in disciplinary proceedings commenced against the employees who took part in such action as a group.

The Labour Officer failed to conciliate the dispute and referred the case for arbitration in terms of section 93(5) of the Labour Relations Act [Chapter 28:01].

The arbitrator heard the case and determined that the appellant ought to have proceeded in terms of sections 106 and 107 of the Labour Relations Act and charged the employees as a group with having taken part in an unlawful collective job action. The dismissal of the employees was adjudged an unfair labour practice. It was set aside and an order of reinstatement or payment of damages in lieu thereof made.

On appeal to the Labour Court, the decision of the arbitrator was upheld hence the appeal to this Court.

The question that falls for determination is whether there is a provision in Part XIII of the Labour Relations Act [Chapter 28:01] to the effect that an employer who wishes to take disciplinary action against an employee who took part in an unlawful collective job action must institute disciplinary proceedings against all the employees involved in such action and charge them with having taken part in an unlawful collective job action.

The contention that the appellant ought to have charged the employees, as a group, with having taken part in an unlawful collective job action and proceeded in terms of the provisions of Part XIII of the Labour Relations Act was based on the interpretation of section 8 of Category 4 of the appellant's employment Code (“the Code”).

A list of what is considered to be serious acts of misconduct is given under Category 4 of the Code. In section 8 the following is stated:

“8. Instigating and/or taking part in an unlawful job action – to be handled in terms of Labour Relations Act [Cap. 28:01].”

There is, of course, no specific reference to Part XIII of the Labour Relations Act in section 8 of Category 4 of the Code.

Even if the appellant had decided to charge the employees with having taken part in an unlawful collective job action there would have been nothing in the provisions of section 8 compelling it to conduct the disciplinary proceedings in terms of the provisions of Part XIII of the Labour Relations Act.

Part XIII of the Labour Relations Act is headed “Collective Job Action”. It contains sections 102 to 112, the provisions of which deal with matters relating to or arising from a collective job action.

The sections said to contain the provisions which the appellant was found to have unlawfully failed to observe are sections 104, 106 and 107.

Section 104(1) gives all employees, workers committees, and trade unions the right to resort to collective job action to resolve disputes of interest. The right is given subject to specific conditions of its exercise prescribed under subsection (2).

A collective job action resorted to without the mandatory requirements for a lawful exercise of the right prescribed under sub-section (2) of section 104 having been strictly satisfied is an unlawful collective job action.

Specific procedures and remedies for the protection of the rights for the parties affected by the unlawful collective job action are provided under sections 106 and 107.

Section 106 provides that when a workers' committee or trade union, for example, “threatens, recommends, encourages, incites, organizes or engages” in an unlawful collective job action, the Minister, acting on his own initiative or upon the application of any person affected or likely to be affected by the unlawful collective job action, may issue an order calling upon the workers' committee or trade union concerned (“the responsible person”) to appear before the Labour Court to show cause why a Disposal Order should not be made in relation to the unlawful collective job action.

The Show Cause Order must specify the date, time and place at which the responsible person must appear before the Labour Court. The order may direct that pending the issuance of the Disposal Order, the unlawful collective job action concerned be terminated, postponed, or suspended.

Section 107 provides that on the return day, the Labour Court must inquire into the matter, and may, after the inquiry, issue a Disposal Order directing that the unlawful collective job action be terminated, postponed, or suspended….,.

Section 107(3) provides that the Disposal Order may provide for the employer, in his discretion, to dismiss, summarily, specified employees or categories of employees engaged in the unlawful collective job action or provide for the dismissal of specified employees or categories of employees engaged in the unlawful collective job action.

The inquiry the Labour Court is required to carry out before issuing a Disposal Order, as well as the right it may give to the employer to dismiss employees found to be threatening or engaging in an unlawful collective job action, implies that the Show Cause Order may take the place of a charge of misconduct in disciplinary proceedings and the inquiry the hearing thereof.

The disciplinary action which the Labour Court may order or may authorize the employer to take against the employees is not the primary object of the provisions of sections 106 and 107 of the Labour Relations Act. The primary purpose of the provisions of sections 106 and 107 is to provide procedures and remedies for the disposal of an unlawful collective job action.

The right given to an employer, under section 107(3) of the Labour Relations Act, to dismiss specified employees or categories of employees who threaten or engage in an unlawful collective job action, is dependent upon the discretionary remedies. It is up to the Labour Court to decide whether to provide, under the Disposal Order, for the dismissal of specified employees or categories of employees. It is also up to the Labour Court to decide whether to give the employer, under the Disposal Order, the right to dismiss specified employees or categories of employees who threaten or engage in an unlawful collective job action.

The right to dismiss is dependent upon the exercise of discretion by the Labour Court.

Without the initiation of the procedure leading to the issuance of the Disposal Order, and the exercise of discretion by the Labour Court in his favour, an employer would have no right to dismiss employees who threaten or engage in an unlawful collective job action in terms of any of the provisions of Part XIII of the Labour Relations Act [Chapter 28:01].

The procedure and remedies under sections 106 and 107 of the Labour Relations Act, are, in my view, applicable to the disposal of an unlawful collective job action being threatened or engaged in at the time the Show Cause Order is made.

There is nothing in the language of the relevant provisions of the Labour Relations Act to show that the intention of the legislature is that the procedure and remedies prescribed thereunder be applied to an unlawful collective job action which has ended on its own without a Disposal Order having been issued in respect of it.

One can hardly think of such action which ceased on its own being made a subject of a Show Cause Order or Disposal Order directing that it be terminated, postponed, or suspended.

The unlawful collective job action engaged in by the appellant's employees ended on 23 October 2006 - without a Show Cause Order having been issued in terms of section 106 of the Labour Relations Act.

The disciplinary proceedings against the employees commenced on 8 December.

The provisions of sections 106 and 107 of the Labour Relations Act were clearly not applicable to the determination of the appellant's right to dismiss the employees concerned.

Where then did the appellant derive the right to dismiss the employees?

The appellant did not charge the employees with having taken part in the unlawful collective job action. It charged each employee with an act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment in that he had taken part in an unlawful collective job action.

The charge was in terms of section 12(B)(2)(b)(i) of the Labour Relations Act [Chapter 28:01] as read with section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003 which recognize the common law right of an employer to charge an employee with such conduct.

Section 12B of the Labour Relations Act provides that:

“(1) Every employee has the right not to be unfairly dismissed.

(2) An employee is unfairly dismissed –

(a) If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or

(b) If, in the absence of an employment code, the employer fails to show that when dismissing the employee he had good cause to believe that the employee was guilty of –

(i) Any act, conduct, or omission inconsistent with the fulfilment of the express or implied conditions of his contract;

(ii)…,.”

Subsection (3) of section 12B of the Labour Relations Act [Chapter 28:01] makes provision for cases of constructive dismissal.

Section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003 provides that:

“(2) For the avoidance of doubt, it is declared that no employer shall summarily or otherwise terminate a contract of employment with an employee unless –

(a) The termination is in terms of an employment code which is registered in terms of section 101 of the Act; or

(b)…,.; or

(c)…,; or

(d) The employee is dismissed on any of the grounds specified in para (b) of section 12B of the Act.”

The employment Code did not have a section prohibiting, as an act of misconduct, an act or conduct inconsistent with the fulfilment of the express or implied conditions of the employee's contract of employment.

For an employer to have good cause to believe that an employee is guilty of the act or conduct specified in section 12B(2)(b)(i) of the Labour Relations Act [Chapter 28:01] he has to charge the employee with having committed that act or conduct, give him an opportunity to answer the charge, hold a disciplinary hearing, and make a finding of facts on which he believes the employee is guilty as charged.

The contention advanced by counsel for the respondent was not that participating in an unlawful collective job action was wrongly found to be an act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of each employee charged with that act of misconduct.

I agree with counsel for the appellant, that, taking part in an unlawful collective job action could not be a valid defence to the charge preferred against each of the employees.

The act of misconduct alleged against each employee in the charge was proved following a full hearing of evidence. At the time the employer dismissed each employee it had good cause to believe that he was guilty of an act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment.

The appellant had the right, under section 12(B)(2)(b)(i) of the Labour Relations Act [Chapter 28:01], as read with section 2 of the of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003, to dismiss the employees.

Counsel for the appellant relied on the case of Net-One Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers Union of Zimbabwe (2) Fifty-Six Net-One, Employees S-89-05, SC89-05.

Net-One, like the appellant, is a successor company to the Posts and Telecommunications Corporation. It was using the same employment Code as the appellant at the time its employees embarked on an unlawful collective job action. The employees in the Net-One case were charged, individually, with having been absent from work for a period of five or more working days without leave or reasonable cause. The employment Code had section 2 of Category 4 which made it an offence for an employee to be absent from work for a period of five or more working days without reasonable cause. In charging the employees, Net-One cited section 12B(2)(b)(v) of the Labour Relations Act. A full disciplinary hearing was conducted, at the end of which each employee was found guilty as charged and dismissed from employment.

It was contended, on appeal, that, in charging the employees under section 12B(2)(b)(v) of the Labour Relations Act, and not section 2 of the Code, Net-One had committed an unfair labour practice.

At p8 of the cyclostyled judgment, CHIDYAUSIKU CJ said that participating in an illegal collective job action could not have been a defence to the charge faced by the employees. He went on to say the following:

“The appellant charged the employees, individually, with absence from work for five consecutive days without reasonable excuse or cause.

I pause to point out that the employees were not charged with taking part in or inciting an unlawful collective job action, a charge that falls squarely under clause 8 of the Code. The employees were charged with absence from work for more than five consecutive days an offence under clause 2 of the Code and section 12B of the Act.

Disciplinary hearings were conducted in respect of each individual employee.

At the conclusion of the disciplinary hearing each of the fifty-six employees was found guilty and dismissed. It was not in dispute that due process was followed in respect of each of the employees. In this regard, the appellant, however, purported to act in terms of section 12B of the Act as read with Statutory Instrument 130/2003.”

The learned Chief Justice held that in citing section 12B(2)(b)(v) of the Labour Relations Act instead of clause 2 of the Code in charging the employees, Net-One was not guilty of unfair labour practice as due process was nonetheless followed in the dismissal of the employees.

The unlawful collective job action in which the employees in Net-One Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers Union of Zimbabwe (2) Fifty-Six Net-One, Employees S-89-05, SC89-05 had taken part had ended without a Show Cause Order having been made in terms of section 106 of the Labour Relations Act at the time disciplinary proceedings were commenced against individual employees.

The case supports the contention that the provisions of Part XIII of the Labour Relations Act [Chapter 28:01] do not, in the circumstances, preclude an employer wishing to take disciplinary action against employees who took part in an unlawful collective job action from charging them individually with acts of misconduct connected with or arising from the collective job action.

In this case, the offence of an act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment could be established in respect of each employee by proving that he took part in an unlawful collective job action.

There was no similar offence under the employment Code.

As the unlawful collective job action had ended at the time disciplinary proceedings were commenced, the appellant could not have acted in terms of any of the provisions of Part XIII of the Labour Relations Act.

The appellant derived the right to dismiss the employees from the disciplinary proceedings it conducted in terms of section 12B(2)(b)(i) of the Labour Relations Act [Chapter 28:01] as read with section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003.

The appeal succeeds with costs.

The judgment of the court a quo is set aside and substituted with the following order -

“The appeal against the decision of the arbitrator succeeds with costs. The decision is set aside.”

What the applicant seeks from this court is the court grants him an order for reinstatement in his former position. To that end he has invoked the the audi alteram partem principle to the effect that he was not heard before the respondent made a decision dismissing him from his employment.

It is trite that the audi alteram partem rule is a ground for review.

The question that falls for determination is whether or not the 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 for 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 Workers' Committee, or by a colleague.

In Chatira v Zimbabwe Electricity Supply Authority (ZESA) SC83-01, the court emphasized the need for procedural fairness in dealing with disciplinary hearings. EBRAHIM JA..., stated -

“..., the requirement of a fair hearing does not mean that employers must handle disciplinary proceedings 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 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) SA 486 went further and stated that the employee need not be given an oral hearing, or allowed representation by an attorney, or counsel, or an 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 the respondent's counsel, for which the court is grateful.

From the authorities cited, I hold the view that the applicant's denial of legal representation at the proposed Disciplinary Committee hearing, as required by the second respondent's Code of Conduct, does not offend against the principles of natural justice.

The applicant has suggested that the failure by the first respondent to call him or his legal practitioners for the appeal amounted to an irregularity. He has argued that the conduct of the first respondent was in breach of the audi alteram partem rule. He has referred this court to a decision of the Supreme Court, Metsola v Chairman, Public Service Commission & Anor 1989 (3) ZLR 147, as authority for that proposition.

I believe that the applicant's counsel failed to appreciate that in the authority he quoted the respondents were not acting as an appeal tribunal but were, in fact, the equivalent of a court of first instance. The case, however, is instructive as the court went on to discuss what constitutes a fair hearing for the purposes of the audi alteram rule. At pp 154D-155..., GUBBAY JA..., stated -

“The audi maxim is not a rule of fixed content, but varies with circumstances. In its fullest extent, it may include the right to be appraised of the information and reason underlying the impending decision; to disclosure of material documents; to a public hearing, to appear with legal representation, and to examine and cross-examine witnesses. See generally, BAXTER: Administrative Law at pp 545-547. The criterion, as I have noted, is one of fundamental fairness, and, for that reason, the principles of natural justice are always flexible. Thus, the right to be heard in appropriate circumstances may be confined to the submission of written representations. It is not the equivalent of a hearing as that term is ordinarily understood. This was stressed by COLMAN J in Heatherdale Farms (Pty) Ltd & Ors v Deputy Minister of Agriculture & Anor 1980 (3) SA 476 (T), where at 486D-G he remarked:

'It is clear on the authorities that a person who is entitled to the benefit of the audi alteram partem rule need not be afforded all the facilities which are allowed to a litigant in a judicial trial. He need not be given an oral hearing, or allowed representation by an attorney or counsel; he need not be given an opportunity to cross-examine; and he is not entitled to discovery of documents. But, on the other hand, (and for this no authority is needed) a mere pretence of giving the person concerned a hearing would clearly not be a compliance with the rule. For, in my view, will it suffice if he is given such a right to make representations as in the circumstances does not constitute a fair and adequate opportunity of meeting the case against him? What would follow from the last mentioned proposition is, firstly, that the person concerned must be given a reasonable time in which to assemble the relevant information and to put forward his representations, secondly, he must be put in possession of such information as will render his right to make representations a real, and not an illusory one'.”

Thus, the underlying principle in the right to heard is that of fairness and natural justice in that each person appearing before the administrative body is given an opportunity to put his or her position to that body. An oral hearing is not an absolute necessity as that may not necessarily mean that the person has been heard as may happen where the person has been given inadequate notice, is not allowed to present his case, or has not been furnished with all the information alleged against him, and yet a hearing may be called.

In any event, the applicant does not state that when the initial Board of Inquiry was held, he was not given an opportunity to be heard. He was heard and dissatisfied with the result. He then launched an appeal. There is no suggestion that such an appeal should have been a re-hearing of the initial inquiry.

The applicant was a member of the Zimbabwe Republic Police who had attained the rank of Assistant Inspector at the time he was discharged from the police force. The circumstances which led to his dismissal were as follows:

He was alleged to have contravened the provisions of paragraph 34 of the Schedule to the Police Act [Chapter 11:10] in that he had allegedly performed “any duty in any improper manner” on two occasions during the period extending from 1 April 2008 to 31 August 2008.

On the first occasion, he was alleged to have withdrawn an unknown number of bags of maize and exchanged them for four (4) cattle and four (4) goats without permission from the Officer-in-Charge.  He had not entered the beasts in the official records known as bin card.  He had allegedly slaughtered one goat for his personal use. The four (4) cattle and three (3) goats were recovered. Secondly, on 20 December 2008, he had been assigned to purchase maize from GMB, Gweru for the ZRP, Gweru town mess. He purchased seven (7) tonnes of maize but only delivered six (6) tonnes to the mess. He, without authority, took 18 x 50kg bags of maize to a grinding mill for reasons only known to him.

He was served with a notice to appear before a court presided over by an Officer, to be held at 0900 hours at CID Provincial Headquarters, Gweru on 3 February 2009 to answer the above allegations.

On 29 January 2009, he addressed a letter to the prosecutor wherein he elected, in terms of section 32 of the Police Act [Chapter 11:10], that he wished his matter to be tried in the Magistrates' Court.  Section 32 of the Police Act [Chapter 11:10] is couched in the following terms:

“If notice is given, in the manner and time prescribed, by a member whom it is proposed to try before a board of officers in terms of paragraph (c) of subsection (1) of section twenty-nine that he wishes that the charge against him be tried by a magistrates' court and not by a board of officers, the charge shall be tried by a magistrates' court.”

The above provisions relate only to a member who is to be tried by a Board of Officers.

A member whose trial is before a court consisting of one officer is excluded from having recourse to the above provisions. The provisions expressly mention trials before a Board of Officers which has the effect of excluding trials before one officer according to the maxim expressio unius est exclusio alterius. See Craies on Statute Law 7^th edition by S G G EDGAR…,.  It therefore follows that the applicant was not entitled to be tried by the Magistrates' Court. The correct forum for the trial of his case was before one officer.

After the hearing, the applicant was convicted of the first count but was found not guilty and was acquitted on the second count. He was sentenced to undergo 14 days imprisonment at Fairbridge Support Unit detention barracks. He appealed to the Commissioner General of the Zimbabwe Republic Police.

On appeal, the Commissioner General, after examining the evidence which was on record, concluded that the applicant had been wrongly charged with performing any duty in any improper manner breaching the provisions of paragraph 34 of the Schedule to the Police Act [Chapter 11:10]. The Commissioner General held that the applicant should have been charged with contravening paragraph 39 of the Schedule to the Police Act [Chapter 11:10] id est “Improperly using position as a member for private advantage.”

The Commissioner General, sitting as an appeal court, then proceeded to substitute the conviction of the trial court with one for “improperly using position as a member for private advantage.”

The applicant complained that the Commissioner General, sitting as a court of appeal, fell into error by substituting a conviction for a charge that was not put to him so that he could respond to it.

The attitude of the respondents to the applicant's complaint is summarised in their heads of argument was follows:

“It is common cause that when a person is being charged for having committed an offence, there is an alternative charge that may be preferred against the accused person. This is an elementary rule of procedure which applicant should be aware of as he left the Zimbabwe Republic Police after having attained the rank of assistant inspector. The case of alternative charges is taught to recruits in depot and should not be an issue to a person facing a main charge but being convicted on the alternative charge; the audi alteram partem rule he cites recognizes this simple issue.

The respondents are at a loss as to what applicant is trying to put forward with this statement that “accused must also be charged with an offence that is an offence at the time of its commission and which is recognized as such by law.” When one is being charged for any offence at any particular time, there is the possibility that he may face alternative charges; there is nothing peculiar about this.”

The above submissions by the respondents are without foundation.

Where it is felt that the accused must be charged with a main charge and an alternative charge both charges ought to be put to him. He ought to be charged with both the main and alternative charge so that he prepares his defence in respect of both charges. He must be heard in respect of each charge.  He may elect to plead not guilty to the main charge but guilty to the alternative charge. He is entitled to make that election. He may plead not guilty to both the main and alternative charge in which case the court may convict him of the charge that is supported by the evidence adduced before it. The court must find him not guilty of the charge which is not supported by the evidence before it. It is not competent for the court to convict the accused of both the main and alternative charge.

Alternative charges are provided for by section 145 of the Criminal Procedure and Evidence Act [Chapter 9:07] where it is doubtful what offence has been committed. Section 145 of the Criminal Procedure and Evidence Act [Chapter 9:07] reads thus:

“If by reason of the nature of an act or series of acts, or of any uncertainty as to the facts which can be proved, or if for any other reason whatever it is doubtful which of several offences is constituted by the facts which can be proved, the accused may be charged with having committed all or any of those offences, and any of such charges may be tried at one time, or the accused may be charged in the alternative with having committed some or one of those offences.” …,.

These provisions become clearer when read with section 279(b)(ii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which recites as follows:-

“279. Concurrent and alternative charges

In this Code, the use of the word -

(a) …,.

(b) “alternatively” whether in the phrase “concurrently or alternatively” or on its own in relation to the charging of a person with two or more crimes, means that the person may be charged -

(i) …,.

(ii) With both or all those crimes in the alternative, if for any reason whatsoever it is doubtful which of them he or she can be proved to have committed.”

What these provisions mean is that the accused ought to be charged with both the main charge and the alternative before the court commences to hear evidence in order to determine which of the crimes he or she committed.

In casu, the accused was not charged with the alternative charge which was substituted for the one the trial court had convicted him. That was a serious irregularity entitling the accused to bring the proceedings on review as he was not heard in respect of the charge. That was contrary to the rules of natural justice in particular the audi alteram partem rule.

An accused person may be convicted for a crime other than the one he was charged with where the essential elements of such crime include the essential elements of the other crime as provided for in section 274 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Section 274 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] recites that:-

“Where a person is charged with a crime the essential elements of which include the essential elements of some other crime, he or she may be found guilty of such other crime, if such are the facts proved and if it is not proved that he/she committed the crime charged.”

In casu, the elements of the crime that the accused was charged with and those of the substituted conviction are completely different.  Paragraph 34 of the Schedule to Police Act [Chapter 11:10] reads thus:-

“Omitting or neglecting to perform any duty or performing any duty in any improper manner,”

Paragraph 39 of the Schedule to Police Act [Chapter 11:10], on the other hand, recites as follows:-

“Improperly using his/her position as a member for his/her private advantage.”

The essential elements of the offences constituted by these two paragraphs are completely different.  It was therefore not proper for the appeal court to substitute the conviction of the offence charged with one that was not charged.

Summary

(1) A member to be tried by a court consisting of one officer is not entitled to elect that his case be tried by the Magistrates Court as the provisions of section 32 of the Police Act [Chapter 11:10] expressly relate to trials before a Board of Officers.

(2) Where it is intended to charge an accused person with an alternative charge that alternative charge ought to be charged together with the main charge so that he can respond to it too as failure to do so falls foul of the audi alteram partem rule.

In conclusion the application for review succeeds….,. The order of this court is as follows:

It is ordered that the conviction of the applicant, which had been substituted for that of the court a quo, be and is hereby set aside.

This is an application in which the applicant seeks the following order:

“It is ordered that:

1. The respondent's suspension letter of the 14^th August 2011 be and is hereby declared null and void.

2. The disciplinary hearing held on the 3^rd October 2011 and subsequent proceedings be and is (sic) hereby declared null and void and the respondent is hereby barred from further charging and prosecuting the applicant.

3. The respondent be and is hereby ordered to reinstate the applicant without loss of salary and benefits.

4. The respondent shall pay the costs of this application.”

In his founding affidavit, the applicant states that he was employed by the respondent in 2003 as a Depot Messenger for Murewa and that the relationship between the parties is governed by a Code of Conduct which he has attached to the application. He states, further, that he was suspended without salary and benefits on 14 August 2011 and was subsequently charged with misconduct. After aborted hearings, a disciplinary hearing finally took place on 3 October 2011 - albeit late. On 12 October 2011, he was notified of the outcome of the hearing which was a verdict of guilty of misconduct and a final written warning.

In terms of the Code of Conduct of the respondent, the management appealed that decision to the General Manager who upheld the appeal and ordered the dismissal of the applicant from employment.

In his view, the disciplinary proceedings were a smoke screen intended to achieve a predetermined goal because the respondent's General Manager had come out on national television announcing to the nation that he had fired two employees at GMB Murewa Depot.

He therefore seeks the relief aforesaid on the grounds that there was a breach of the Code of Conduct which rendered the disciplinary proceedings a nullity in that his suspension was not done by his Departmental Head as required by the Code. A determination was not made within 14 days in breach of a provision in the Code. He was not properly advised of the outcome of the disciplinary hearing and he was not accorded a fair hearing, again, in breach of provisions of the Code. The appeal process was also done in violation of the Code.

(a) Incompetent Relief

Counsel for the respondent spoke with a certain degree of eloquency in his effort to impress upon the court on the need on its part to remain alive to the distinction which exists between a vindicatory action and a disciplinary hearing. He said whilst the action was based on the principles of common law, the hearings which the respondent instituted against the applicants were based on the provisions of the Labour Amendment Act number 17 of 2002. He stated that the vindicatory action which is referred to in case number HC10472/13 is a common law action which the respondent, as owner of the vehicles, instituted with a view to recovering from the applicants possession and ownership of the vehicles. He developed his argument and stated, further, that the disciplinary hearings which the respondent instituted against the applicants were an internal process the result of which was aimed at disciplining the applicants for their misconduct. He stated, in a very persuasive manner, that it was incompetent for the applicants to invite the court to interdict the internal labour process on the basis of a vindication action.

The court mentions, in passing, that it was thoroughly impressed by counsel for the respondent's line of reasoning, which, taken at face value, would almost have moved the court to dismiss the application and rule in the respondent's favour without any further ado. Counsel for the respondent showed the court that he had done a lot of research work on the matter and he had no difficulty in arguing his client's case along the lines which he had developed….,.

The misconduct which prompted the respondent to prefer charges against the applicants is said to have occurred, in or around, January 2013. It occurred, the respondent said, during a disturbance which allegedly took place at the applicants' place of work. The respondent did not advance any reason which caused it to delay the disciplinary hearings for a stretch of fourteen (14) months running. The misconduct is alleged to have taken place in January 2013 and the notices which relate to the hearings were issued to the applicants only on 28 March 2014.

The respondent's employer-employee Code of Conduct, in terms of which the charges were preferred against the applicants, was not availed to the court. The court does not, therefore, know its contents, particularly the procedures which the respondent is enjoined to follow when it prefers charges against its employees. What the court does know, though, is that most employer-employee codes of conduct do contain some set standard guidelines and timelines within which charges should be preffered against an employee, or employees, who is, or are, alleged to have involved himself or herself, or themselves into some act(s) of misconduct. The guidelines which are, more often than not, followed are that an investigation into the conduct is instituted as the initial step and some recommendations are made as a result of which charges are, or are not, preferred against the employees(s).

In casu, the respondent appears not to have followed the outlined procedure when it proceeded to prefer charges against the applicants.

Because the court remains in the dark on the mentioned point, the court accords to the respondent the benefit of doubt on that same matter. It does so as it may very well be the position that the respondent's Code of Conduct, under which the charges against the applicants were preferred, does not have in it the procedure which is, by and large, accepted as a standard way of dealing with disciplinary matters in most employer-employee codes of conduct.

The applicants, as has already been stated, alleged that the hearings were aimed at nothing but getting rid of them from the respondent's employment. They alleged that the hearings were interconnected to their acquisition and ownership of the motor vehicles. They, in the mentioned regard, urged the court not to take a piece-meal examination of the matter on the point at hand. They, in short, implored the court to take a holistic approach to the same.

A reading of the contents of the notices which the respondent dished out to the applicants on 28 March 2014, does, in the court's view, support the applicants' claim. The wording of each one of the notices is identical, and it, in part, reads:

“The basis of the above allegation is as follows:

(a) You transferred an NP300 Nissan Hardbody irregularly during the period of unlawful occupancy of the mine in early 2013. This was in contravention of the Chief Executive Officer's communique of 21 December 2012.

(b) Ownership of the vehicle should have reverted to the company since all decisions made during the said occupation were ruled unlawful and of no force or effect by the High Court.

(c) Notwithstanding management's several communications and proferred financial assistance in the form of cash in lieu of leave/salary advancement to meet the costs of reversing the vehicle ownership, you have not obliged up to now. 

Therefore, you are advised to appear before the Disciplinary Authority…,.”…,.

The foregoing shows, in a clear and lucid manner, that for the fourteen (14) months which it did not act to, as it were, discipline the applicants, the respondent was busy compelling the applicants, in some way or other, to hand-over the motor vehicles to it as well as to transfer ownership of the same from the applicants' respective names into its own name. The respondent, it is evident, made several communications with the applicants to whom it advanced money as a way of enabling the latter to reverse the vehicle ownership. It was only when the applicants refused to give in to the respondent's very harsh demands, which were apparently veiled in some conciliatory tones,  that the respondent realised that it was not making any headway and it, therefore, made up its mind to:

(i) Institute legal action under case number HC10472/13; and

(ii) Charge the applicants with an act of misconduct.

The fact that the respondent filed the vindicatory action with the court on 5 December 2013 and not before that date explains its inaction for fourteen consecutive months. The court, in the premise, remains of the view that the contemplated disciplinary action has nothing to do with giving the applicants any fair hearing. It is, if anything, instituted mala fides and with a certain degree of vindictiveness on the part of the respondent who appears to have been thoroughly frustrated by the applicants' refusal to hand over possession and ownership of the vehicles to it. The respondent translated what it sought from the applicants through some internal process into an apparent labour dispute which it knows this court is precluded from hearing, let alone making a determination upon. The net effect of the charges which the respondent preferred against the applicants is one and the same thing, namely, transfer of possession and ownership of the motor vehicles….,. The applicants stated as much and the respondent confirmed the same in the vindicatory action which it instituted against the applicants….,

The respondent confused issues when it stated, as it did, that the purported charges against the applicants were, or are, separate and distinct from the vindication action which it instituted. The charges have nothing to do with disciplining the applicants. They, in the court's firm view, have everything which relates to the possession and ownership of the motor vehicles. This, therefore, is not a matter which falls to be decided in terms of the respondent's Code of Conduct. It is, in short, not a matter for disciplinary, but vindicatory, action which this court is competent to deal with. 

The respondent's argument on this point does not, therefore, hold.

It is clear from the facts of this case that the appellant had been improperly suspended on allegations of misconduct in terms of a Code of Conduct which, it is common cause, was inapplicable in this matter. 

This is an appeal against a judgment of the Labour Court setting aside the dismissal of the respondents' and reinstating them to their former positions in the employ of the appellant....,.

(iii) The finding that the respondents had not committed the disciplinary offence of sabotage as defined in the applicable Code of Conduct.

The offence of sabotage is defined in the N.E.C.C.S. Employment Code of Conduct as follows:

“SABOTAGE

Any wilful act by an employee to interfere with the normal operations of the employer's business by damaging any plant, machinery, equipment, raw materials or products or by interrupting any supplies of power, fuel, materials or services necessary to the operations.”

Sabotage has been defined as:

“'noun' 1. The act of doing deliberate damage to equipment, transport, machines, etc to prevent an enemy from using them, or to protest about something…,.

Verb 1: To damage or destroy something deliberately to prevent an enemy from using it or to protest about something…,.

Verb 2: To prevent something from being successful or being achieved, especially deliberately'. See Oxford Advanced Learner's Dictionary 8 Ed.”

It is defined, in Wikipedia, as:

“A deliberate action aimed at weakening another entity through subversion, obstruction, disruption, or destruction. In a workplace setting, sabotage is the conscious withdrawal of efficiency generally directed at causing some change in workplace conditions…,.”…,.

In Black's Law Dictionary 8 Ed, it is defined as:

“1…., the destruction, damage, or knowingly defective production of materials, premises, or utilities used for national defense or for war…,.

2. The wilful and malicious destruction of an employer's property or interference with an employer's normal operations especially during a labour dispute.”…,.

In its ordinary meaning, therefore, sabotage can mean the withdrawal of labour with the intention of forcing the employer to comply with the employees' demands. While such withdrawal of labour, when exercised in the context of a lawful strike, is permitted by law, it is contended by the appellant that the unlawful withdrawal of services by the respondents in this matter constituted sabotage as defined in the N.E.C.C.S. Employment Code of Conduct.

The court a quo was of the view that while the actions of the respondents constituted an interruption of supply of services to the employer such interruption was not meant to be proscribed by the N.E.C.C.S. Employment Code of Conduct but rather it was the interruption of the services, not of the employee, but of third parties to the employer, which was intended to be proscribed.

I am unable to agree with this view. For to do so would mean that an employee who, during the course of an unlawful collective job action, deliberately refrains from sending a signal of the arrival of a train to the next station knowing that his failure to send the signal might cause a derailment of the train, and such a derailment does eventuate, could, in answer to a charge of sabotage, take refuge in the fact that the withdrawal of his labour does not constitute sabotage.

In my view, the unlawful withdrawal of their services by the respondents did constitute sabotage. They interfered with the normal operations of the appellant to the extent that those services were not available to the appellant, to its loss, during the period of the strike. Their conduct amounted to an interruption of services necessary to the operations of the appellant who was dependent on those services for its functioning. They were, therefore, properly found guilty of the misconduct of sabotage and dismissed by the appellant.

In the result, the appeal succeeds with costs.

The judgment of the court a quo is set aside and substituted with the following:

“The appeal is allowed.

This is an appeal against the decision of the Labour Court in which it dismissed an appeal by the appellant against an award made by an arbitrator directing the appellant to reinstate the respondent without loss of salary or benefits, and, in the event that reinstatement was no longer possible, pay damages.

The background to this matter is as follows.

The respondent was employed as a security guard at the appellant's premises in Marlborough. During the morning of 13 June 2009, it was discovered that approximately thirty five (35) litres of diesel had been stolen from one of the appellant's trucks parked on the premises. Following an investigation conducted by the appellant, the respondent was charged with theft in terms of the National Code of Conduct Regulations, S.I.15 of 2006 (“the National Code of Conduct”). On 1 July 2009, the respondent was informed that he had been found guilty and that consequently his contract had been terminated with effect from 23 June 2009.

Aggrieved by the decision to dismiss him, the respondent appealed to the appellant's Executive Director. The appeal was unsuccessful and the respondent was advised accordingly on 10 July 2009. The respondent was further advised that he could appeal to the appellant's Board of Trustees within seven working days if he so wished. On 16 July 2009, the respondent prepared his appeal but it was only date-stamped on 24 July 2009 at GAPWUZ - where one of the Trustees is employed. Although it is not clear what GAPWUZ stands for, it would appear to be the workers' union headquarters. There was no response to the appeal. On 18 August 2009, the respondent then wrote a letter to the Labour Officer complaining that his appeal had not been heard and asking for a fair hearing. Following a certificate of no settlement, the Labour Officer then referred the matter for arbitration on the issue whether or not the dismissal of the respondent was fair.

The arbitrator found that the failure by the Board of Trustees of the appellant to determine the appeal within fourteen days infringed the respondent's right to be heard and was thus a breach of the rules of natural justice. He also found that the respondent had a legitimate expectation to have his appeal heard by the Board of Trustees and the fact that the appeal had still not been determined was unprocedural rendering the dismissal null and void. The arbitrator then gave an award for the reinstatement of the respondent to his position with effect from 23 June 2009 without loss of salary or benefits, and, alternatively the payment of specific sums of damages. 

Not satisfied with the award, the appellant noted an appeal with the Labour Court.

In its judgment, the Labour Court found, firstly, that the arbitrator had made a factual finding that the appeal by the respondent had not been heard by the appellant's appellate body, and, secondly, that the failure to determine the appeal rendered the dismissal null and void. Consequently, the Labour Court concluded that the finding by the arbitrator that the dismissal was unfair was an issue of fact and not one of law. In the result, the court ruled that the appeal was not properly taken and on that basis dismissed the appeal.

Against that finding, the appellant has now appealed to this Court.

In its grounds of appeal, the appellant has attacked the decision of the Labour Court on three bases. These are:

(a) That the court a quo erred in concluding that the appeal before it did not raise points of law;

(b) That the court a quo erred in concluding that the dismissal of the respondent had been effected in accordance with the law and thus could not be termed unfair.

(c) That the learned President of the Labour Court had misdirected herself in disregarding the points raised by the appellant in its appeal before that court.

Counsel for the appellant…, submitted that the learned President in the court a quo erred in concluding that the appeal by the appellant to the Labour Court did not raise points of law.

In particular, he argued that the arbitrator had erred in failing to appreciate that the respondent had failed to exhaust internal remedies before approaching the Ministry of Labour. He argued, further, that the arbitrator had erred in “quantifying” damages due to the respondent without hearing evidence on the issue of mitigation of damages by the respondent. He further submitted that the learned arbitrator had erred in setting out damages to be paid to the respondent without advancing any reasons or justification for the award….,.

The respondent's complaint against the appellant before the arbitrator was effectively that his dismissal had been effected outside the provisions of the Labour National Employment Code of Conduct, S.I.15 of 2006, thus constituting an unfair dismissal. What constitutes an unfair dismissal has been defined in section 12B of the Labour Act [Chapter 28:01]. That section provides, in relevant part, as follows:

“(1)…,.

(2) An employee is unfairly dismissed -

(a) If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or

(b) In the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9).”

It is common cause that in this case the respondent was charged with misconduct in accordance with the Labour National Employment Code of Conduct, S.I.15 of 2006. Section 8(2) of the Labour National Employment Code of Conduct, S.I.15 of 2006 provides as follows:

“An internal appeal structures (sic) shall be limited to not more than two appeal authorities.”

An aggrieved party is therefore entitled to appeal to two bodies within the employment structure. The respondent has alleged failure on the part of the appellant to afford him an opportunity to have the second appeal determined. The arbitrator found that this failure was unprocedural rendering the dismissal null and void.

In Sable Chemical Industries Limited v David Peter Easterbrook SC18-10 this Court had to consider whether or not failure to comply with the procedures provided for in codes of conduct would vitiate the proceedings in question. This is what GARWE JA stated…,:

This is an application for review of the Labour Court's decision. The grounds for review are that:

a) There was a gross irregularity in the proceedings in that the court entertained the matter when it had not been properly set down in terms of the law.

b) That the court issued an order that was actually different from the original order sought, which order could only have been granted had new proceedings been instituted. 

The relief sought, although not stated on the face of the application for review as provided for by Rule 257, is stated in the draft order as that the decision of the Labour court of the 21^st of February 2013 be set aside and be declared null and void.

The judgment subject to review in this application was apparently granted in default. The applicant alleges that the matter was not properly set down and he was not given notice of the proceedings of the 21^st of February 2013.

This is an application for review.

On the 16^th of June 2009, the applicant was convicted of contravening Section 29 of the Schedule to the Police Act [Chapter 11:10] as read with Section 34 of the Police Act [Chapter 11:10] in that he improperly disposed of 85 litres of diesel for tillage. The applicant filed this application upon dissatisfaction with the conviction and the penalties that followed.

The third and fourth respondents apparently are the ones that unearthed the theft of the diesel at ZRP Springs Farm.

The trial, before a single officer, was presided over by the third respondent, and the fourth respondent was prosecuting. This, in essence, means that the third and fourth respondents were complainants/witnesses in the same case that one of them adjudicated upon and the other prosecuted. The respondents, in paragraph 3.3 of the respondents' heads of argument wherein the respondents' counsel states that:-

“3.3.1 It is trite that the trial did not adhere to the principles of natural justice, viz,

(a) Audi alteram partem rule.

(b) Memo judex in sua causa.

3.3.2 The third and fourth respondents arrested the applicant, prosecuted, and tried him. It is not in dispute that this was a flagrant miscarriage of justice.”

This point was rightly conceded to by the respondents.

Although the respondents are opposed to this application, having said that they concede that the proceedings were a flagrant miscarriage of justice, one wonders what then makes the respondents' counsel be of the view that such can be overlooked by this court.

The proceedings breached the rules of natural justice and clearly cannot stand. Section 27 of the High Court Act [Chapter 7:06] provides that the grounds for review are the following:-

(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned.

(b) Interest in the cause, bias, malice, or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned.

(c) Gross irregularity in the proceedings or decision.

Clearly, if the third and fourth respondents were complainants/witnesses, judge and prosecutor in the same case, they could have had interest in the cause; and proceeding in this manner amounted to a gross irregularity in the proceedings. The proceedings can therefore not stand.

I accordingly grant the application in the following terms:-

(1) The decision of the trial by a single officer on 15^th and 16^th June 2009 be and is hereby set aside.

(2) The matter be remitted back to the first respondent for a trial to be conducted before a different officer.

The respondents raised a point in limine to the effect that the application should be dismissed as it is in fact an application for the review of a labour decision, wherein only the labour court has jurisdiction and therefore it has been brought on the wrong platform. 

It is this point in limine that I would want to deal with.

Section 4 of the Administrative Justice Act [Chapter 10:28] provides for relief against administrative authorities and it is worded as follows:

“Section (4) Subject to this Act, and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section 3 may apply to the High Court for relief.”…,.

This section clearly shows that the relief that can be sought by an applicant in terms of section 3 of the Administrative Justice Act [Chapter 10:28] is subject to the provisions of any other law. Section 7 of the Administrative Justice Act [Chapter 10:28] provides thus:

“Without limitation to its discretion, the High Court may decline to entertain an application made under section 4 if the Applicant is entitled to seek relief under any other law, whether by way of appeal or review or otherwise, and the High Court considers that any such remedy must be first exhausted.”

The relief sought by the applicant is clearly a review of the decision of the respondents in their capacity as the employers of the applicant. The applicant's dissatisfaction with the steps taken by his employer, and the manner in which these steps were taken, resulting in his transfer and “demotion”, are purely a labour issue which the labour court, in terms of section 89(1)(d)(1) of the Labour Act [Chapter 20:01], has jurisdiction in. That section provides as follows:

“The labour court shall exercise the following function:-

Exercise the same powers to review as would be exercised by the High Court in respect of labour matters.”…,.

Section 89(6) of the Labour Act [Chapter 28:01] provides that - 

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal or matter referred to in subsection (1).”

This, in effect, means that the Labour Court, and only the Labour Court, can exercise review powers and any other powers regarding the decisions of administrative authorities in labour matters.

Whilst the High Court has inherent jurisdiction in all matters, section 26 of the High Court Act [Chapter 7:06] provides as follows:

“Subject to this Act and any other law, the High Court shall have power, jurisdiction, and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities in Zimbabwe.”…,. 

Section 27(1)(a) of the High Court Act [Chapter 7:06] provides that:-

“Subject to this Act and any other law, the grounds on which any proceedings or decisions may be brought on review before the High Court shall be absence of jurisdiction on the part of the court, tribunal or authority concerned” …,.

Section 89 of the Labour Act [Chapter 28:01], as alluded to above, clearly takes away from any other court the powers to determine or hear matters provided for in that section. Powers of review in terms of section 3 and 4 of the Administrative Justice Act [Chapter 10:28] where labour matters are concerned, in my view, fall into the same category. On the other hand, section 26 of the High Court Act [Chapter 7:06] subjects the High Court powers of review to the provisions of any other law, clearly meaning that where another law provides otherwise, the High Court would not be allowed to exercise review powers that have been specifically taken away from it by another enactment. 

I therefore find that I cannot usurp powers specifically given to the Labour Court in no uncertain terms.

I am in total agreement with the findings of the learned judges in the following cases; Samudzimu v Dairiboard Holdings HH204-10; Tuso v City of Harare HH01-04; Gwindingwi and Another HH168-11; and Medical Investments Ltd v Pedzisayi HH26-10.

The essence of all these judgments was that the provisions of the Labour Act specifically exclude the jurisdiction of the High Court in labour matters.

It therefore follows that since I have found that whatever the applicant decides to call his application, I have, however, on its grounds, facts and relief sought, determined that this is, in fact, an application for review that the applicant decided to call a declarator, and it is therefore improperly before me as the jurisdiction to review labour authorities' decisions clearly lies with the Labour court.

Further, in her heads of argument, the appellant submitted that it was the Chief Executive Officer of the respondent who decided to transfer her on account of perceived misconduct. He dismissed her appeal against the transfer. When she did not report for duty at Inyati Mine on 14 February 2005, it was him who suspended her and arranged for the hearing to take place on 21 February 2005. On the date of hearing, it was him who chaired the disciplinary hearing. It was also him who announced the verdict and the penalty of dismissal. 

In these circumstances, he became judge, jury and executioner. The nemo judex principle having been violated, the proceedings were accordingly vitiated…..,.

Section 6 of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 provides in relevant part:-

“(1) Where an employer has good cause to believe that an employee has committed a misconduct mentioned in section 4, the employer may suspend such employee, with or without pay and benefits, and shall forthwith serve the employee with a letter of suspension with reasons and grounds of suspension.

(2) Upon serving the employee with the suspension letter, in terms of subsection (1), the employer shall, within 14 working days investigate the matter and conduct a hearing into the alleged misconduct of the employee, and may, according to the circumstances of the case –

(a) Serve a notice, in writing, on the employee concerned terminating his or her contract or employment, if the grounds for his or her suspension are proved to his or her satisfaction; or

(b)…,.”

On a proper reading of the above section, the following emerge:-

(a) An employer must have good cause to believe that an employee has committed a misconduct as defined in section 4 of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006.

(b) If this is the case, the employer may suspend the employee with or without pay and benefits.

(c) A copy of the letter of suspension, with reasons and grounds of suspension, shall forthwith be served on the employee.

(d) Within fourteen (14) days of serving the employee with the letter of suspension, the employer shall investigate the matter and conduct a hearing into the alleged conduct.

(e) After reaching a verdict, the employer shall serve a notice on the employee, either terminating the employment, if the misconduct has been proved, or removing the suspension, where the grounds of suspension are not proved.

It is clear that a suspension must be based on a belief that a misconduct, as defined, has been committed. An employer must have good cause for such belief. Only then may the employer consider suspending the employee. The procedure outlined in section 6 of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 has to be followed where the employee is suspected on reasonable grounds of having committed an act of misconduct. Whilst it is clear from the language of that section that an employer need not suspend an employee in all cases, where he decides to suspend, he must comply within the requirements outlined in that section.

It follows from what I have stated above that where the suspension is set aside and re-instatement ordered, any verdict or penalty imposed pursuant to any allegation made as part of the reason for the suspension must fall away. The suspension and the misconduct alleged against an employee are intertwined. There can be no suspension where there is no misconduct alleged against an employee.

Since the suspension was set aside by an order of court, which order remains extant, the proceedings that followed such suspension cannot therefore stand on their own. The law is settled that one cannot put something on nothing as it will collapse.

In the circumstances, I am satisfied that the findings of the disciplinary committee and the penalty of dismissal that was imposed cannot stand.

It is perhaps pertinent to note, at this stage, that the basis for the setting aside of the suspension appears to have been the failure on the part of the respondent Bank to comply with the fourteen (14) day requirement provided for in section 6(2) of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006. Whether the Labour Court was correct in making that order is not an issue before me. Attention should, however, be drawn to the decisions in Nyoni v Secretary for Public Service Labour and Social Welfare & Anor 1997 (2) ZLR 516…, and Posts and Telecommunications Corporation v Zvenyika Chizema SC108-04 which suggest that delay alone cannot justify reinstatement and that delay merely gives the aggrieved party the right to the remedy of a mandamus to enforce due compliance with any time limits.

Whether the fourteen (14) day requirement applies to the entire proceedings or only to the investigations is not a matter which is before me and need not therefore detain me.

In the light of the finding that I have made above, namely, that the verdict and penalty cannot stand, it becomes unnecessary to decide the other issues raised during this appeal….,.

The appeal must therefore succeed. It is accordingly ordered as follows:-

(1) The appeal is allowed with costs.

(2) The judgment of the court a quo is set aside and the following substituted:-

“(1) The application is allowed with costs.

Even assuming that Mr G Boothway's presiding over the hearing was irregular; that, in itself, was insufficient ground for setting aside the proceedings.

Labour matters are not to be decided on technicalities. See Dalny Mine v Banda 1999  (1) ZLR 220 (SC).

In relation to the second ground of appeal, we find that the Labour Court further misdirected itself in its consideration of the circumstances surrounding the severe written warning and its relevance to the disciplinary proceedings in question.

The finding by the court a quo that the severe written warning did not relate to two of the charges on which the respondent was convicted was misplaced. It is evident that the severe warning also related to the charge concerning conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment.

This is an appeal against the whole judgment of the Labour Court handed down at Harare on 30 August 2013.

The facts of the matter are as follows:

The respondent is a company engaged in farming operations on a number of its plantations and estates in the Manicaland Province. The appellant joined the employ of the respondent in 1997 as an Estates Coffee Manager based at New Year's Gift. Early in 2000, he was offered, and took up, the position of Agricultural Manager. All Estate Managers were now reporting to the appellant. In 2007, the appellant became General Manager Agriculture and subsequently, in 2010, he was appointed Director.

Sometime in 2011, the appellant was charged with contravening sections of the respondent's Employment Code of Conduct (hereinafter called “the Code”). In particular, he was charged with gross incompetence and negligence in the performance of his work, and violating the respondent's Anti-Sexual Harassment policy. In the latter respect, the appellant was accused of having improper relations with two junior members of staff. It seems, however, that the sexual misconduct charges were pursued only in relation to one of the two junior members of staff.

In October 2011, the appellant was notified of disciplinary proceedings set to be conducted against him.  The disciplinary hearing subsequently took place at New Year's Gift Estate. After the hearing, on 22 November 2011, the respondent wrote to the appellant notifying him of his dismissal from duty following his being found guilty of breaching the relevant sections of the Code. The appellant appealed internally, but unsuccessfully, against the decision of the Disciplinary Committee. Aggrieved by that decision, he filed an appeal with the Labour Court. The appeal before the Labour Court was essentially on two grounds:

(i) That the charges in respect of sexual misconduct and failure to graft the macadamia seedlings had prescribed; and

(ii) That the charges, in any case, lacked sufficient evidence and were therefore not proved.

The Labour Court, having dismissed the appeal, the appellant has now appealed to this Court against its judgment.

The grounds of appeal raise the following issues:

1.Whether or not the hearing and appeal tribunals were properly or improperly constituted thus technically rendering their decision to dismiss the appellant nugatory;

2. Whether or not the allegations against the appellant, at the commencement of the disciplinary proceedings, had prescribed;

3. Whether or not the appellant's failure to graft the macadamia seedlings amounted to gross negligence in the performance of his duties, as alleged;

4. Whether or not the alleged sexual relationship between the appellant and one junior staff member was proved; and

5. Whether or not, in light of the above issues, the penalty of dismissal against the appellant was justified.

3. Did the appellant's failure to graft the macadamia seedlings amount to gross negligence in the performance of his duties?

I consider it pertinent to prefix this part of the judgment, and the next, with the observation that the disciplinary proceedings conducted against the appellant had all the hallmarks of a fully-fledged trial. Looking at the detailed record of proceedings, one gets the impression that all issues were fully ventilated and argued. Each party was legally represented and was able to call its own witnesses. These were put through comprehensive examination-in-chief, cross-examination, and re-examination. Written submissions before and after the hearing, were also filed.

Against this background, it is the respondent's argument that it proved a case of gross negligence and incompetence in fulfilling his duties, on the part of the appellant. This, according to the respondent, was in large part attributable to his failure to graft the macadamia seedlings before planting them. The respondent further charges that this circumstance resulted in it suffering huge financial loss. Lastly, that this misconduct merited the penalty of dismissal.

The appellant does not deny that he failed to graft the seedlings as alleged nor that the seller of such seedlings, Mr Scott, had advised him to do so before planting them. He blamed his failure to graft the macadamia seedlings on the fact that at the time that they were supposed to be grafted, the estates were beset with economic and other hardships leading to inadequate operational funds, unavailability of the necessary grafting tools and shortages of labour. The respondent also sought to elicit evidence from his witness, Mr PFW Lee ('Lee'), to the effect that the failure of ungrafted seedlings to thrive was attributable not only to that circumstance, but to other factors as well. He also sought, in my view unsuccessfully, to contrast the expert opinion of Mr Lee with that of the two consultants engaged by the respondent. The consultants, Mr Fennel and Mr Wessels, gave evidence for the respondent on the effect of not grafting macadamia seedlings before they are planted.

As correctly argued for the respondent, while the experts' opinions varied from the categorical to the almost ambivalent, depending on the side for which they were proffered, all experts seemed to agree that decidedly, there were disadvantages to not grafting the seedlings in the manner advised.

To illustrate this point, Mr Fennel stated that it was 'common knowledge' that one cannot plant ungrafted macadamia seedlings. He estimated that between 35 and 40ha of the plantation in question had 'no future'. Mr Wessels, the other consultant, estimated that about US$300,000= of revenue was lost and that this was largely due to the non-grafting of the macadamia seedlings. He added that only 20 per cent of the entire macadamia field was expected to bear fruit.

Contrasted with this was Mr Lee's evidence to the effect that given all the problems observed, the crop that he saw was 'surprisingly good' despite its ungrafted state.

However, as the court a quo noted, Mr Lee's other comments on the value of grafting seedlings appeared to take the appellant's case a step or two back. The court noted in relation to his evidence:

“Even his own witness, Mr PFW Lee, on page 1994 of the disciplinary record (sic), confirms the appellant's gross negligence when he says the 'orchard that we visited wasn't receiving full irrigation. The trees had been stressed because they lacked water.' On page 194 he also confirms the importance of grafting seedlings, when he says, as a consultant, he would not recommend that commercial growers use the ungrafted method. So even from the evidence of (the) appellant's own witness, the gross negligence on the issue of macadamias comes out.”

Added to this, and as correctly noted in the respondent's heads of argument, Mr Lee went further to state that the effect of not grafting seedlings would be that:

'You will have a situation where some trees will produce good fruit while others produce low fruit. Overally, you will have an average yield…,.'”

The upshot of the foregoing is, in my view, to put it beyond doubt that the failure by the appellant to graft the seedlings in question substantially eroded the quality of the product from the crop. I find that in this respect, the appellant compounded his default by:

(i) Disregarding the advice from the seller of the seedlings, that he should first graft them before planting; and

(ii) Having faced challenges in carrying out the task, failing to draw his superiors' attention to the problem before proceeding to plant.

There is, in addition, nothing on the record to suggest that the appellant disputed that the harvest from the crop in question was seriously compromised. He does not seem to dispute the loss said to have been suffered as a result of the failure to graft the seed, estimated at some 35ha and worth over USD300,000=.

I find, in the result, that the alleged gross negligence and incompetence in his work, was sufficiently proved against the appellant. In short, the appellant was properly found guilty of the misconduct of gross negligence, defined as follows in the respondent's Code of Conduct:

“12.17 Gross Negligence

An employee is grossly negligent if he/she fails to exercise proper care in the discharge of his/her duties resulting in loss of life, or serious damage or loss of company property.”

4. Whether the alleged sexual relationship between the appellant and Eulater Makuyana was proved

The appellant alleges that the court a quo made an irrational finding that the respondent had proved the violation by him of the anti-harassment and discrimination policy.

The appellant was charged, in terms of the respondent's Code of Conduct, under the banner of “An inconsistent Act, Conduct or Omission.” The specific offence of which he was accused was conducting an improper sexual relationship with a junior member of staff, one Eulater Makuyana, sometime between 2003 and 2006. This was contrary to the respondent's anti-harassment and discrimination policy (sexual misconduct), which, in relevant part, reads as follows:

“9. Sexual Misconduct

Sexual misconduct applies where both parties are consenting but the relationship is likely to jeopardise the smooth operation of the workplace…,.

Sexual misconduct towards subordinates in the workplace raises serious questions regarding the ability to provide a healthy, safe, and harassment-free work atmosphere, especially on the estates, where access to residences is easy…,.”

The relevant provision of the respondent's Code of Conduct reads:

“12.20 Inconsistent Act, Conduct or Omission

An employee commits a gross offence if he/she does any act, conduct or omission, which is inconsistent with the fulfilment of the express or implied conditions of his/her contract of employment.”

At the disciplinary hearing, and regarding this charge, the respondent called as its witnesses Eulater Makuyana, the appellant's former cook, Irene Sithole, and the appellant's alleged love rival, Mr Craig. Eulater Makuyana went into great detail in both her evidence in chief and under cross examination, regarding when the relationship started, where it was conducted, how long it lasted, the care taken by both parties to keep it secret and how it all ended.

The appellant's defence was to deny that such a relationship ever existed between him and Eulater Makuyana. It was in light of this that the court a quo, in its judgment, after analysing the evidence of the three witnesses, had this to say:

“Eulater's evidence was corroborated by her next boyfriend, Brian Craig, who got to know about the relationship when he started his own relationship with Eulater…, and asked her to choose between him and the appellant…,. Eulater's evidence was also corroborated by the appellant's cook, Irene Sithole. The court agrees with the hearing officer's finding that Eulater was a credible witness. The sum total of the evidence of Eulater, Craig and Irene shows that the relationship between Eulater and the appellant must have existed for them to talk about it because they gave their evidence long after the relationship had terminated. Why then would all three corroborate (sic) on the existence of this relationship between 2003 and 2006? If their evidence was a fabrication, why would they confirm the expiration of the relationship and not allege that it was in existence up to the time of Eulater's resignation?...,. Because of the above reasons, this court is convinced that both the Disciplinary Committee and the appeal hearing officer were correct in accepting the corroborated evidence of Eulater on the relationship with the appellant as truthful.”

I can find no fault with the reasoning and conclusion of the court a quo on this point.….,.

5. Penalty

It is the appellant's contention that the decision to dismiss him was irrational and contrary to the provisions of the respondent's Code of Conduct.

I do not find that this assertion is supported by the Code in question. The offences of 'Gross Negligence' and of 'An inconsistent Act, Conduct or Omission' are listed in Schedule IV of the respondent's Code of Conduct. The section is entitled “GROSS OFFENCES: (DISMISSAL)”. As is evident, the offences attract the penalty of dismissal. Given this circumstance, there can be no doubt that the respondent imposed a penalty consistent with what its Code of Conduct stipulates.

The position is settled that where an employer takes a serious view of misconduct committed by an employee, and, in its discretion, imposes a penalty of dismissal, the appeal court will generally not interfere with the exercise of such discretion in the absence of demonstrated unreasonableness or gross irrationality. This position was articulated in the case of Mashonaland Turf Club v Mutangadura SC05-12 where ZIYAMBI JA held as follows:

“In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer's discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.”

I have already determined that the appellant, who held the most senior position on the estates in question, was, in the circumstances of this case, properly found guilty of the misconduct charges that he faced. That being the case, I am not persuaded there was any misdirection or unreasonableness in the exercise of the respondent's discretion in imposing the penalty of dismissal.

6. DISPOSITION

I find, in the final analysis, that this appeal lacks merit and ought to be dismissed. Costs will follow the cause. Accordingly, it is ordered as follows:

This is an appeal against the decision of the Labour Court, Harare, which was handed down on 5 March 2010.

The background to this dispute is as follows.

The respondent, who was employed by the appellant as an Accounts Clerk, and, on 5 March 2007, was suspended from her employment on the following charges:

(a) Wilful disobedience to a lawful order;

(b) Insubordination;

(c) Dragging the name of NEWU into disrepute;

(d) Disregarding set standard rules with impunity;

(e) Failure to adhere to set rules and standards as outlined by the organization; and

(f) Gross negligence.

A disciplinary hearing was subsequently conducted following a letter addressed to the respondent, dated 5 March 2007. The respondent was found guilty of acts of misconduct falling under section 4 of the Labour (National Employment Code of Conduct) Regulations, S.I.15/2006, (“the National Code”), in particular:

(i) An act or omission inconsistent with the fulfilment of the express or implied conditions of her contract of employment;

(ii) Wilful disobedience to a lawful order;

(iii) Theft or fraud; and

(iv) Gross incompetence or inefficiency in the performance of her work.

She was consequently dismissed from employment.

The matter was referred to a labour officer and eventually to an arbitrator.

The arbitrator, whose sole term of reference was to determine whether or not the respondent was unfairly dismissed, found that:

(i) The labour dispute emanated from sour working relations between the appellant and the respondent;

(ii) The Disciplinary Committee was improperly constituted; and

(iii) The Disciplinary Committee failed to consider any mitigating factors before imposing the penalty of dismissal.

The arbitrator then ruled that the respondent was unfairly dismissed.

He ordered that she be reinstated to her former position with no loss of salary or benefits, or, alternatively, that she be paid damages in lieu of reinstatement. The Labour Court dismissed the appellant's appeal against this decision and substituted the arbitrator's award with an order that the appellant pay the respondent damages calculated from the date of her dismissal to 15 September 2008. This was the date on which the respondent commenced employment with another employer.

Disgruntled with this decision, the appellant filed this appeal, which essentially raises three issues, that is;

(i) Whether, on the facts of the matter, the disciplinary hearing was conducted by a Disciplinary Authority or by a Disciplinary Committee;

(ii) Whether the adjudicating authority was properly constituted; and

(iii) If so, whether or not the court a quo erred by proceeding to order that the respondent be paid damages in the absence of any evidence before, and without the parties addressing, the court on that issue.

NATURE AND COMPOSITION OF THE ADJUDICATING AUTHORITY

The first and second issues relate to the nature and correct composition of the disciplinary body before which the respondent appeared.

The judge a quo found that although the disciplinary proceedings which resulted in the respondent's dismissal were conducted in terms of the National Code, this was done before an improperly constituted disciplinary committee. The court relied for this finding on section 2 of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006, which defines a 'disciplinary committee' as follows:

“'disciplinary committee' means a committee set up at a workplace/establishment composed of employer and employees representatives, to preside over and decide disciplinary cases and/or worker grievances.”

Having made this finding, the court did not hear argument on, nor consider, the merits of the dispute but proceeded to make a new award of damages in favour of the respondent.

The appellant, on the other hand, argues that the hearing was conducted by and before a Disciplinary Authority as defined in the same section of the Code, as follows;

“'disciplinary authority' means a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or at a workplace.”

The court a quo did not allude to the definition of 'disciplinary authority' as defined above, and its possible implications on the applicability or otherwise of the definition of 'disciplinary committee' that is contained in the same section of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006.

My analysis of the National Code brings to the fore two important issues:

(i) Firstly, there are two definitions of 'disciplinary committee' in the definitions section of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006. There is one that I will refer to as a 'stand alone definition, and the other that is subsumed under the definition of 'disciplinary authority.' This means that a disciplinary committee, as so subsumed, is one of the 'bodies' that may constitute a disciplinary authority, just like the 'person' or 'authority' mentioned in the definition in question.

(ii) Secondly, while the two definitions are contained in the definitions section of the statutory instrument, only 'disciplinary authority' is referred to in the body of the instrument itself, and this is in section 6(1)(4)(b), which reads, in the relevant part, as follows:

“(4) At a hearing in terms of subsection (2), an employee shall have the right to -

(a)…,.

(b) Appear in person before the employer or the employer's representative or disciplinary authority, as the case may be, and be represented by either a fellow employee, worker's committee member, trade union official/officer or a legal practitioner.”…,.

The significance of this provision, as properly pointed out by GOWORA JA in the recent case of Crispen Mandizvidza v ZFC Limited and Anor (SC73-15) is that it confers on a disciplinary authority powers to conduct a disciplinary hearing at the workplace. By contrast, there is no provision in the operative provisions of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 that confers similar powers on a disciplinary committee. In effect, and as already stated, such committee is not mentioned in the body of the Code. Based on this anomaly, this Court correctly determined, in Crispen Mandizvidza v ZFC Limited and Anor (SC 73/2015), that there is no provision in the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 for an employee to appear before a disciplinary committee unless such committee is constituted as part of a disciplinary authority.

This notwithstanding, the question, in my view, may properly be posed as to whether, in the absence of such a provision, (i.e. for an employee to appear before a disciplinary committee), it is not feasible for an employer to set up a disciplinary committee as separately defined in the Code, to preside over and determine the matters listed in that definition? If not, then a further question could be asked as to whether this was the intention of the Legislature?

Tempting though it may be to delve onto these questions, I refrain from doing so for the simple reason that the questions were neither posed nor argued in casu.

The dispute in this case relates to the nature of the disciplinary body that determined the matter at hand.

I find to be persuasive in this respect, the appellant's submission that there is ample factual evidence before the court that points to a clear intention by the appellant to set up a disciplinary authority as opposed to a disciplinary committee (as separately defined). Firstly, the letter to the respondent, dated 5 March 2007, which outlined the misconduct charges against her, read, in part, as follows:

“Furthermore, you advised (sic) to appear before a Disciplinary Authority on Friday 9 March at 12.00pm. You reserve the right to bring a person of your choice to represent you.”

Secondly, the minutes of the proceedings duly conducted on 9 March 2007 are headed:

“NATIONAL ENGINEERING WORKERS UNION DISCIPLINARY AUTHORITY MINUTES”…,.

Thirdly, and in keeping with the requirement in the definition of 'disciplinary authority', the respondent was advised to bring to the disciplinary hearing, 'a person of your choice to represent you.'

The minutes themselves record that its Chairman informed those who were present that the hearing was to be conducted in terms of section 6(4) of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006. This provision contains no direct reference to a disciplinary committee.

Finally, the disciplinary hearing was attended by the appellant's representatives on the one hand, and the respondent and her legal practitioner on the other. This composition accords with what is provided for in section 6(4)(1)(b) of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006, cited above.

Had the appellant wished to convene a disciplinary committee, as described in the stand-alone definition, it would in all probability have said so, and ensured that the composition of such committee met the requirements stipulated in the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006.

The distinction between these two disciplinary authorities is highlighted in Crispen Mandizvidza v ZFC Limited and Anor (SC73-15) where this Court stated as follows in relation to the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006:

“It seems to me that whereas the National Code has stipulated who should constitute a disciplinary committee, the composition of a disciplinary authority has been left to the discretion of the employer.

A disciplinary authority, on the other hand, can mean a person or a committee dealing with disciplinary matters at the workplace and its composition is not dictated by the Code of Conduct…,. Clearly, the appellant is obviously mixing the two. The disciplinary authority can be constituted by a single person and it can be extended to a disciplinary committee.”

Applied to the circumstances of this case, it becomes evident that the appellant consciously set out to constitute a disciplinary authority (as opposed to a disciplinary committee), and properly exercised its discretion in choosing the size of and specific people to sit on, such disciplinary authority. It is pertinent to note in this respect that no limitation is imposed by the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 as to the number of persons who should constitute a disciplinary authority. Nor is the designation of such persons stipulated.

It is all left to the employer's discretion.

In the proceedings in question, and in compliance with section 6(1)(4)(b) of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006, the respondent was allowed to bring, and be represented by, her legal practitioner.

It is therefore my finding that the authority that conducted the disciplinary proceedings against the respondent was a Disciplinary Authority as defined in the Code, and that it was properly constituted.

Given all of the above, I find that the court a quo misdirected itself in finding, as it did, that:

“There was no representative from the employees' side in the Committee. This was in contravention of the Code. In view of this, I therefore do not find fault in the arbitrator's finding that the disciplinary committee was improperly constituted.”

The court a quo further rejected the argument of the appellant that the three employer's representatives on the disciplinary authority attended the hearing as prosecutors, finding in this respect, (and thereby further misdirecting itself), as follows:

“Further, assuming that the appellant's submission was correct, the arbitrator's finding would still be correct, in that (as per definition of Disciplinary Committee) the Disciplinary Committee, comprising one person (i.e. Mr Garira) would be improperly constituted and would equally suffer the same fate.”

The respondent was employed by the appellant as a mechanical foreman. On or about 12 March 2010, a screen problem developed at a production site. An examination revealed that there was discharge of pulp to a plate screen and that pulp was being discharged onto the floor. The mill was stopped to allow rubbers to be changed. After this process an inside rubber was found to be off position and, on 14 March 2010, the respondent was tasked to attend to it. The respondent attended to the rubber but did not secure it properly as he used worn out bolts instead of new ones. The job had to be re-done by other artisans and in the process the appellant lost an hour and a half worth of production time. As a result of this mal-performance the respondent was, on 16 March 2010, charged with gross incompetence or inefficiency in the performance of his duties.

Prior to the disciplinary hearing that took place on 15 April 2010, [relating to the above mentioned alleged misconduct], the respondent had, on 1 April 2010, been convicted of a misconduct involving negligence and had been given a final written warning as a penalty.

On 15 April 2010, he was convicted by the disciplinary committee 'only' of negligence. He was dismissed on the basis that he was already sitting on a final written warning which was given on 1 April 2010. Part of the determination by the disciplinary committee read as follows:

“Although the offence amounts to negligence but as the accused is already on a final warning, dismissal verdict awarded.”

The respondent appealed internally. He alleged, in the appeal, that the final written warning which persuaded the disciplinary committee to issue a penalty of dismissal related to an act of misconduct which occurred after the act of misconduct which gave rise to the disciplinary proceedings he was seeking to have set aside. He contended, therefore, that the final written warning had been taken into account un-procedurally.

The question that arose was whether the consideration of the final written warning was appropriate   when regard was had to the fact that it was issued out only after the first offence had already been committed but not yet determined.

The Appeals Officer dismissed the appeal and upheld the determination of the Disciplinary Committee.

The respondent appealed to the Labour Court.

In his grounds of appeal before the Labour Court, the respondent alleged that the Disciplinary Committee erred in taking into account the final written warning when considering an appropriate penalty. The essence of the complaint was that the final written warning was in respect of an offence committed after the commission of the offence in the matter before the court.

The Labour Court found that the final written warning was issued in relation to a different offence, and, as such, was not applicable to the disciplinary proceedings which culminated in the dismissal of the respondent. The court a quo stated:

“The Committee dismissed him on the basis that he was sitting on a valid final written warning in respect of similarly placed conduct. The record shows that the previous warning related to the loss by a colleague of a tool that had been allocated to the appellant. This is not in any way 'similar' to alleged acts of negligent performance of one's duties. It was therefore a misdirection on the part of the hearing committee to take this final written warning into account. The two offences were not similar.”…,.

On that basis, the Labour Court allowed the appeal and set aside the dismissal of the respondent. In its stead, the Labour Court imposed a final written warning.

It is against that decision that the appellant has appealed.

In this Court, the appellant submitted that the respondent was already sitting on a final written warning when he was convicted of the act of misconduct and was dismissed on that basis. It was argued, further, that the court a quo erred in interfering with the penalty imposed by the disciplinary committee without any legal basis for doing so.

The respondent per contra, has argued that the final written warning did not apply to the disciplinary proceedings simply because the final written warning was not in place when the act of misconduct in issue was committed. To that end it should not have played any part in the determination of the appropriate penalty. In addition, the respondent contends that the final written warning relates to an unrelated offence and for that reason should never have been a consideration in the penalty.

Whether the Labour Court was correct in interfering with the penalty imposed by the employer

The respondent did not challenge the decision to find him guilty of misconduct. What was before the court therefore was the issue of the penalty imposed upon the respondent and its appropriateness.

The court a quo could only have dealt with the question whether or not the employer had improperly exercised its discretion.

The respondent has not suggested, either in the internal appeals process or before the Labour Court, that the misconduct of which he was found guilty did not go to the root of the employment contract and that on that basis a penalty of dismissal was not justified. In Toyota v Posi 2008 (1) ZLR 173 (S) the position was stated as follows:

“That position accords with the common law principle that an employer is entitled, upon conviction of an employee of misconduct which goes to the root of their relationship, to dismiss him….,.

In any case, the fact that the two penalties, that is to say the final written warning valid for 12 months and /or demotion and/or suspension without pay for up to 30 days and dismissal are penalties provided for the serious breaches, means that any of them can be lawfully imposed as a punishment for the offences in that class of cases.”

At common law, an employer has the discretion on what penalty can be imposed upon an employee who has been found guilty of an act of misconduct which is inconsistent with the fulfilment of the expressed or implied terms of his or her contract of employment and where such misconduct goes to the root of his or her employment contract. See Toyota v Posi 2008 (1) ZLR 173 (S)…,.

It is also settled that an appeal court cannot interfere with the exercise of this discretion by the employer unless there has been a misdirection in the exercise of such discretion. See Malimanjani v Central African Building Society 2007 (2) ZLR 77 (S)…,.

The respondent did not attack the penalty imposed on the premise that the exercise of its discretion by the employer was irrational or that there had been a serious or gross misdirection on the part of the employer. Indeed, before us, counsel for the respondent submitted that the employer had not erred and made the concession that there was no irrationality or misdirection on the part of the employer.

The court a quo appeared, however, to have justified its interference with the penalty on the basis that the respondent had not been found guilty of gross incompetence or inefficiency but negligence.

Clearly, the view it took was technical.

The law is settled that labour disputes should not be delayed through the consideration of issues of a technical nature but should be resolved on substantive issues.

In my view, it was immaterial whether the respondent had been found guilty of negligence as opposed to gross incompetence or inefficiency. The record shows that the evidence adduced established the charges of misconduct preferred against him.

I agree with the submissions by counsel for the appellant that the right to dismiss is available at common law and that such right is entrenched. The employer, at its election, may decide to impose a lesser penalty than dismissal. Such is the exercise of discretion. In Malimanjani v Central African Building Society 2007 (2) ZLR 77 (S) this Court stated:

“The issue of what punishment to impose after an employee is found guilty of an act of misconduct is clearly one of discretion…,.

It is trite that an appeal court does not interfere with the exercise of a discretion by a lower tribunal unless it is shown that the discretion was improperly exercised. As contended for the respondent, the penalty imposed must show a serious misdirection to justify interference by the appeal court.”

Clearly, the court a quo erred in interfering with the employer's exercise of discretion. The court ought to have asked itself whether the employer had properly taken a serious view of the matter and whether there was sufficient evidence to support the conviction on the preferred charges. Unfortunately, the court a quo did not ask itself these pertinent questions and proceeded to determine the matter on an issue which was not even premised on the grounds of appeal before it.

The law is clear that once an employer takes a serious view of the matter and the aggravated nature of the misconduct, it is irrelevant that the Code does not provide for dismissal as a penalty. In Circle Cement v Nyawasha SC60-03, this Court held:

“Once the employer had taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment the question of a penalty less severe being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee. The principle enunciated in Zikiti's case supra was inapplicable to the decision of the disciplinary and grievance committee to dismiss Nyawasha because it was not shown to the Labour Court that its finding, that her act of misconduct was of so serious a nature as to constitute a repudiation of her contractual obligation entitling Circle Cement to dismiss her from employment, was one a reasonable employer would not have made.”

In my view, these remarks are not only pertinent they are entirely apposite in the case in point. A mere examination of the charges of gross incompetence or gross negligence preferred against the respondent reveals the gravity with which the appellant viewed the respondent's conduct.

In any event, the court a quo did not sit to consider the penalty against the backdrop of the exercise of discretion by an employer. It proceeded to consider the propriety of the conviction. It therefore proceeded on a wrong premise and misdirected itself in the process. Thus, there was no principle of law upon which the court could have acted in overturning the proper exercise of discretion by the employer. 

Clearly, the court erred.

Whether the appellant could have taken into account the final written warning in imposing a penalty upon a conviction for misconduct

It was contended by the appellant that the court a quo misdirected itself in concluding that it, the appellant, ought not to have had regard to the final written warning in imposing a penalty upon the respondent.

The court a quo concluded that the final written warning was not relevant for purposes of arriving at a penalty for the sole reason that, in its view, the offences in issue were unrelated.

In this regard, the court a quo erred.

The final written warning was issued in relation to a finding of guilty of negligence. In relation to the events of 16 March 2010, although charged with gross incompetence or negligence, the respondent was found guilty of negligence. In this respect, therefore, the final written warning was a relevant consideration in relation to the offences.

The respondent never argued that the two offences were unrelated. Rather, his contention was that as the final written warning was issued for an offence committed after the commission of the misconduct for which he was dismissed, the disciplinary committee ought not to have taken it into account in assessing the penalty for the subsequent offence.

Had the court a quo dealt with the issues as presented by the parties, it would have come to the realisation that the respondent was dismissed because he was sitting on a final written warning. It would have then had to consider whether the appellant, in dismissing the respondent, had exercised its discretion improperly. Its failure to deal with the matter before it amounts to a misdirection which invites this Court to interfere with its conclusion.

The appellant contends that the respondent was dismissed because he was a habitual offender and that his offences caused losses to the appellant.

I could not agree more.

The Code of Conduct does not provide that the effectiveness of a final written warning depends on the relatedness of the offences. It is irrelevant for purposes of deciding what penalty is imposed whether or not the offences are related. What is critical is the employee's conduct in the work environment. This is what the employer has to consider in the exercise of its discretion in imposing an appropriate penalty. Any employer is bound to view previous convictions for misconduct in a negative light and come to the conclusion that the acts of misconduct go to the root of the employment contract. For this Court to interfere with the penalty imposed by the employer in the exercise of its discretion there needs to be proof that the exercise of the discretion was impeachable based on the principle laid out in Barros v Chimphonda 1999 (1) ZLR 58…, thus:

“It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution…,.”

The respondent did not, either in the internal appeal or in the court a quo, show that the disciplinary committee had made any error in the exercise of its discretion. It was not enough to suggest that the final written warning should not have been taken into account merely on the grounds that it related to a subsequent breach on the part of the respondent. The disciplinary committee would have been within its right and entitlement to take the same into account. To do otherwise would have been a negation of its mandate. The final written warning was an indicator of the type of employee that the respondent was. It was a manifestation of his attitude towards his contract of employment - an absence of diligence. There is no principle that supports the contention by the respondent that to be relevant a final written warning should be in respect of an earlier infraction for purposes of arriving at an appropriate penalty.

In my view, the appeal has merit and must succeed. In the result the following order is issued:-

1. The appeal is allowed with costs.

2. The judgment of the court a quo is set aside and substituted with the following:

“The appeal is dismissed with costs.”

The appellant appealed to this court against the whole judgment of the Labour Court. The appellant was the respondents' employer. It dismissed them from employment for wilfully losing two beds and mattresses, part of a consignment it had assigned them to deliver to Rusape and Mutare.

The circumstances under which the respondents lost the appellant's property are fully explained in their evidence which, in spite of the evidence given by its own witnesses and the views expressed by members of the disciplinary committee, the appellant found hard to believe.

It is not disputed that on 12 August 2010 the appellant assigned the respondents the duty to deliver beds and mattresses to Rusape and Mutare. They left Harare at about 6.00pm. At about 21.00 hours the respondents phoned one Makuyo, the appellant's clerk, advising him that part of the appellant's property had been stolen by thieves as they slowly negotiated a steep rise at a place called Mafusire along the Harare-Mutare Highway. Makuyo instructed them to proceed with their journey to Mutare.

The respondents reported the theft to Headlands Police. Police officers from Headlands police station accompanied them to the Mafusire area to try and recover the stolen property. They were not able to recover anything. The police advised them to put up at the police station so that they could again search for the stolen property in the Mafusire area the next morning. The respondents put up at the police station and a search was conducted the following morning. The search did not yield any positive results. The respondents proceeded on their journey to Rusape and Mutare where they delivered the remaining beds and mattresses.

On their return to Harare, the respondents were charged with misconduct for negligence in terms of section 2.2(c) and wilful loss of employer's property in terms of section 2.3(c) of The National Employment Council for the Furniture Manufacturing Industry's Employment Code of Conduct duly registered on 19 November 1992.

The respondents gave evidence before the disciplinary committee.

A motorist stopped them after the Mafusire steep rise and told them that the doors of their truck were open and that he had seen people carrying beds similar to those in their truck into a mountain at the Mafusire area. Due to confusion, they did not take the details of the motorist, but immediately phoned Makuyo, the appellant's clerk and reported the theft to Headlands Police Station. The police escorted them back to the Mafusire area that night and the following morning.

D Matsika, E Moses, M Chatsiwa and F Makuyo testified for the appellant. 

Matsika told the disciplinary committee that he received a phone call from Makuyo who reported to him that he had received a report of theft of the appellant's property at the Mafusire steep rise. He further told the disciplinary committee that an assistant accompanying their other lorry, which was travelling behind the respondents, confirmed the theft. When asked why the respondents had not taken the details of the motorist who alerted them of the theft, Matsika said;

“It is strange from an academic point of view but considering the type of people involved it is possible.”

Moses, who apparently loaded the beds and mattresses, told the disciplinary committee that “the beds can only slip out if the ropes are untied and if the vehicle is at an uphill position.” He further told the committee that “if the beds are loaded on top they can slip out with ease.” He told the committee that in view of the way the beds were packed it was not possible for one person to offload them without assistance.

Chatsiwa, a Security Officer, went to the scene of the alleged theft to make observations. He opined that it would have taken time for one to open the truck's doors, untie the ropes and offload the two beds and mattresses. He questioned the respondents' failure to take the details of the motorist who alerted them of the theft. When it was put to him that the respondents knew that the truck doors were open but just wanted to use that possibility as a defence he said; “it was difficult as there was no one to cross examine.”

Makuyo confirmed that he received a theft report from the respondents on the night of the incident. He also confirmed receiving confirmation from one Jonah who was travelling in another truck belonging to the appellant on the same route that he had seen some people carrying beds into the mountain at the Mafusire steep rise. He further told the disciplinary committee that there is a small space at the back of the truck from which thieves could have cut locks with a bolt cutter to steal from the moving truck.

Mr Chiwaridzo, who chaired the disciplinary committee, and the majority of members of his committee initially recommended that the respondents be found guilty of negligence and be given written warnings.  He, on p 62 of the record, said:

“The facts of this matter are common cause and shall not be repeated herein. I shall confine myself to the findings of other members of the panel whose findings on the negligence of the defendants I concur with in toto. The defendants were negligent, and, as a result lost the company's property thus prejudicing the company to the tune of $1,810=.”

He thus agreed with the initial findings of the members of the disciplinary committee. For reasons which have not been placed on record, he subsequently changed the last part of the committee's recommendations and recommended that the respondents be dismissed from employment. This seems to be the reason why Susan Cakana, the appellant's Head, Group Human Resources Manager, by letters dated 15 September 2010, dismissed the respondents from employment.

Other members of the disciplinary committee held different views but converged on a finding of guilty of mere negligence for which they recommended written warnings.

Mrs L Chimbade recommended written warnings after commenting on the incident as follows:

“It is just sad that when the two were stopped by a certain motorist who advised them that the truck's doors were open and that he had seen some beds at Mafusire they did not take his details for reference purposes. History says Mafusire area is known for robberies and as such the two were supposed to be on guard, but in this case they were not very careful.”

She obviously believed the respondents and merely concluded that they were not very careful in view of the history of the Mafusire area.

Mr M Rukawo recommended a reprimand, which, in my view, is another way of recommending a written warning. He, in respect of Fungai Katswairo, the first respondent, said he “failed to exercise due care and custody of the consignment.” In respect of the second respondent he said; “As the driver's assistant, he was supposed to be extra vigilant at places such as Mafusire where known acts of banditry occur.” He believed the respondents' story and merely thought they should have been extra vigilant because of the notoriety of the Mafusire area.

Mr L Magwagwa, another disciplinary committee member, after giving a reasoned analysis of the Mafusire steep rise being three kilometres long and its history of robberies including previous theft of the appellant's property at the same place, recommended that the respondents be found not guilty. He was however of the view that if they are found guilty a lenient sentence should be imposed. It seems to me he had in mind a minimum sentence which, in the circumstances of this case, is a written warning.

The majority of the members of the Hearing Committee convicted the respondents of negligence in terms of section 2.2(c) of the Code for which they recommended written warnings. The Chairman's subsequent recommendation that they be dismissed from employment resulted in Susan Cakana writing letters to the respondents dismissing them from employment.

The respondents appealed against their convictions and dismissal to the National Employment Council for The Furniture Manufacturing Industry of Zimbabwe, (the NEC Appeals Committee). The NEC Appeals Committee, after finding that the disciplinary committee had recommended that the respondents be found guilty of negligence and be given written warnings, but had subsequently been inexplicably dismissed, upheld their appeal and ordered their reinstatement. It further ordered that if reinstatement was no longer possible, the respondents be paid agreed damages in lieu of reinstatement and that upon failure to agree on damages, either party may approach it for quantification.

The appellant appealed to the Labour Court which did not believe the appellant's assertion that the document which recommended that written warnings be given was a draft. It found, that there was no explanation for the existence of two sets of recommendations from the disciplinary committee. It found no fault in the decision of the NEC Appeals Committee which it upheld.

The appellant appealed to this court against the whole judgment of the Labour Court. Its appeal is premised on the following grounds of appeal:-

“1. The learned President erred and/or misdirected herself in law in failing to have regard to the facts of the matter and arrived at findings on the facts so outrageous which findings no reasonable tribunal applying its mind to the facts of the matter and the law could possibly have arrived at.

2. The learned President erred and/or misdirected herself in law in arriving at findings on the facts which findings constitute misdirections at law, in that she failed to consider and pay requisite regard to the following undisputed facts;

(a) That the beds had been loaded onto the appellant's truck in a manner which would not have permitted their removal unless the ropes which secured them had been deliberately untied;

(b) That the doors of the truck had been locked and secured and could not be unlocked from outside while the truck was in motion.

(c) That the appellant had never accepted the respondents' explanation that the truck had been attacked by thieves and the appellant's beds removed from the truck while the truck was in motion and without the knowledge of the respondents;

(d) The evidence as to the respective responsibilities of the respondents during the journey;

3. Having found that the record before her showed that there were two sets of minutes of the disciplinary hearing, the President erred in accepting the set of minutes which favoured the respondents when it is undisputed that both sets of minutes are unsigned. The rejection of the minutes recommending dismissal of the respondents is seriously flawed having regard to the facts of the matter and the highly improbable explanation for the loss of the appellant's property advanced by the respondents.

4. The learned President erred in her interpretation of section 6(1)(d) of the Labour Act [Chapter 28:10] and in finding that that section had any application to the facts of the matter before her and in thereby finding that the respondents' lives were placed at risk by the appellant in contravention of that section. This finding, having regard to the facts of the matter, represents a serious and gross misdirection on the part of the learned President.

5. The learned President's finding that the appellant acted unfairly in charging the respondents with misconduct having regard to the facts of the matter is seriously flawed and amounts to a serious misdirection.

6. The learned President erred in dismissing the appellant's appeal which dismissal represents a serious misdirection on the facts and the law.”

The issues which fall for determination are;

(a) Whether the decision of the court a quo is so outrageous in its defiance of logic that no reasonable tribunal, applying its mind to the facts of the matter and the law, could have arrived at such a decision.

(b) Whether the court a quo correctly interpreted section 6(1)(d) of the Labour Act [Chapter 28:10].

(c) Whether the disciplinary committee's recommendation that the respondents be dismissed from employment was lawfully made….,.

WHETHER THE DISCIPLINARY COMMITTEE'S RECOMMENDATION THAT THE RESPONDENTS BE DISMISSED FROM EMPLOYMENT WAS LAWFULLY MADE

The court a quo's and NEC Appeals Committee's decisions relied on the recommendation for a written warning which the appellant sent to the respondents to enable them to prepare for the hearing of their appeal to the NEC Appeals Committee. The respondents produced those minutes before the NEC Appeals Committee. The recommendation for dismissals which the appellant now relies on was not placed before the NEC Appeals Committee. It was only raised before the Labour Court and is not consistent with the recommendations of the members of the disciplinary committee. The NEC Appeals Committee, in its decision, commented on the disciplinary committee's recommendation as follows:

“The committee further asked why Mrs Susan Chakana, the Group Human Resources Manager had to terminate the duo when M.T. Chiwaridzo, the Designated Officer who was chairing the hearing had recommended for written warnings (sic) on last paragraph of the minutes of the hearing. The respondents could not comment on the matter.”

The appellant was the respondent before the NEC Appeals Committee.

It is therefore the party which could not respond when the NEC Appeals Committee raised this issue. If the second set of minutes, which recommended dismissal, was available, the question arises as to why it was not presented and explained during the hearing of the respondents' appeal to the NEC. The impression is thus created that the appellant, in its determination to dismiss the respondents subsequently created the second set of minutes. If the appellant had the second set of minutes in its possession when it appeared before the NEC Appeals Committee, a second question arises as to why it did not comment on the matter by simply producing the second set of minutes and proffering the explanation it later sought to give to the court a quo. The question posed by the NEC Appeals Committee is simple. It wanted to know why Mrs Susan Cakana terminated the respondents' contracts of employment when M.T. Chiwaridzo, the Designated Officer, had recommended written warnings. It is inconceivable that the appellant, armed with another set of minutes in which dismissals were recommended, would have failed to comment. It is also inconceivable that, with the dismissal recommendation on file, the appellant would send to the respondents the minutes of proceedings which recommended written warnings and be stuck when asked to explain.

In its heads of argument, the appellant argued that the court a quo failed to properly consider its grounds of appeal to the Labour Court. The issue of the two sets of minutes appears as ground of appeal no. 3 which reads as follows:

“Under its analysis before its determination, the Appeals Committee avers that the Designated Officer, who was Chairman during the hearing, had recommended for Written Warnings assuming that the element of negligence was established. This averment is inaccurate. In fact, in his ruling the Designated Officer holds that 'in the circumstances, I find the defendants guilty as charged' and in the last paragraph that 'I recommend that the Defendants, Fungai Katsvairo and Winston Mhonda, be DISMISSED effective the 13^th day of September 2010.' Had the Designated Officer not made this ruling respondents would surely not have been dismissed and there would have not been any reason for them to appeal to the NEC against the Designated Officer's ruling.”

The appellant is referring to its grounds of appeal to the Labour Court as an explanation for the existence of the two sets of recommendations made by the disciplinary committee. Grounds of appeal are not evidence and cannot explain anything. They merely present to the court of appeal what the appellant alleges are misdirections of the court a quo. An explanation for the existence of two versions of the minutes of the disciplinary committee could only have been presented by way of acceptable evidence.  No explanation of the existence of the two sets of minutes of the same disciplinary proceedings was placed before the court a quo. The appellant failed to explain when the issue was raised by the NEC Appeals Committee. 

This issue therefore remains unexplained as the Labour Court correctly noted.

It was argued on behalf of the respondents before the NEC Appeals Committee that, in terms of section 4(5) of the Code, the Chairman of the disciplinary committee was not entitled to vote. Section 4(5) of the Code provides as follows:

“The decision of the committee shall be by majority vote:

Provided that the Chairman shall not be entitled to vote except in the event of an equality of votes when he shall, in absolute good faith, have a casting vote.”…,.

The second disciplinary committee's recommendation which was used to dismiss the respondents from employment was not made in terms of section 4(5) of the Code. The Chairman voted when he was not entitled to as there was no equality of votes. He unprocedurally and unilaterally sought to overturn the disciplinary committee's earlier decision when there was no equality of votes. The circumstances warranting his casting vote did not arise in this case. The majority decision was that the respondents were guilty of ordinary negligence for which a written warning was recommended. That is the legally binding decision in terms of section 4(5) of the Code.

The Chairman's subsequent recommendation that the respondents be dismissed from employment, when there was no equality of votes, is a legal nullity.

The court a quo therefore correctly upheld the NEC Appeals Committee's decision.

This is an appeal against a decision of the Labour Court dated 1 December 2011. The background to this matter may be summarized as follows:

The respondent was employed by the appellant as a Health Education Officer. In August 2007, the respondent approached her supervisor, a Mrs Chimhamhiwa, and advised her that they were overwhelmed at the clinic because of the growth of the Group. During this period, the respondent was granted permission to attend a training course in December 2007 until the end of the month at the Red Cross. In January 2008, on completion of the training, the respondent went on leave which was approved by the employer. Upon her return from leave the respondent wrote an email to Mrs Chimhamhiwa indicating that she required the assistance of a clerk to clear, for reimbursement, all medical aid forms which had accumulated.

In spite of the request, no additional personnel was appointed to the office of the respondent to assist with filing of the medical aid forms.

The respondent did not indicate to her superior that the medical aid forms for reimbursement had not been filed as is required in terms of their laid down procedure. She merely indicated that there was pressure in her department and they were lagging behind.

A new manager was appointed in June 2008. She noticed that the medical aid forms had not been filed. She made a report and the respondent was charged with misconduct. She was charged with contravening section 10(2) of the Code of Conduct for the Banking Undertaking, Statutory Instrument 273 of 2000 for 'negligence causing substantial loss to the Bank', and, in the alternative, 'failure to comply with standing instructions or follow established procedure resulting in substantial loss to the Bank.'

In terms of the Code of Conduct for the Banking Undertaking, S.I.273 of 2000 this offence was a category 'C' offence which did not warrant a penalty of dismissal. At the end of the disciplinary hearing the respondent was found guilty of 'gross negligence' by not submitting CIMAS claims totaling ZW$623 trillion over the period December 2007 to May 2008. In terms of the Code of Conduct, this offence was a category 'D' offence which warranted a penalty of dismissal.

The respondent noted an appeal against this decision to the National Employment Council Appeals Board. The Board found that she had been wrongfully dismissed and ordered her reinstatement without loss of salary and benefits from the date of wrongful dismissal. In making the award, the National Employment Council Appeals Board noted that the Bank had showed no evidence of having taken any disciplinary measures against the employee before taking the drastic measure to dismiss her. It also observed that the Bank went on to employ two people to cover the employee's duties after dismissing her, which proved that the job was demanding as had been reported by the employee and also that it 'doubted' the correctness of the charge of negligence on the grounds that the issue complained of was a one-off incident.

The appellant noted an appeal against that decision to the Labour Court. That court dismissed the appeal.

The appellant now appeals against that decision to this court on the following grounds:

“1. The learned President fell into error when she grossly misdirected herself on a point of fact when she found that the respondent's failure to submit claims forms was in fact caused by the applicant who did not respond to the increased volumes of work.

2. The learned President misdirected herself that negligence had not been proved when in fact the respondent did not deny that negligence had been proved. Further, and in any event, in her capacity as a Health Education Officer, failure to submit claims forms to CIMAS weekly was total disregard of her duty.

3. The learned President erred on a point of law by failing to pay due regard to the fact that the evidence presented proved the charge of gross negligence and accordingly the respondent was correctly found guilty of that charge.

4. The learned President also fell into error by failing to order payment of damages as an alternative to reinstatement as she was legally bound to.“

The relief sought by the appellant was that the respondent be dismissed from employment with effect from 13 July 2008 and that the respondent pays the costs of the appeal.

As is apparent from the facts placed before this court, the respondent was charged with 'negligence causing substantial loss to the Bank', and, in the alternative, 'failure to comply with standing instructions or follow established procedures resulting in substantial loss to the Bank' in terms of the Code of Conduct for the Banking Undertaking, S.I.273 of 2000.

This offence is a category 'C' offence which does not warrant a penalty of dismissal.

However, the Hearing Officer found her guilty of 'gross negligence', which is a category 'D' offence, resulting in her dismissal.

The National Employment Council Appeals Board ordered the reinstatement of the respondent but did not make a finding on this aspect regarding the decision that was being appealed against.

The court a quo made mention of this in its judgment. On page 2 of the judgment, the court a quo noted that:

“The charge that had been preferred against the respondent was a Category C offence. In terms of the Code of Conduct, Category C offences attracted a warning if one was found guilty. The Hearing Officer, however, found her guilty of a Category D offence i.e. gross negligence when the allegations that had been preferred against her were lesser charges. In this regard the Hearing Officer misdirected himself.”

The court a quo went on to consider other issues and made a finding that the respondent had continued to take the initiative to highlight and bring it to the employer's attention that her department was overwhelmed with increased volumes of work as a result the merger. The reasoning of the court a quo was that the disciplinary committee was bound to impose the penalty indicated for that breach regardless of the seriousness with which the employer viewed the offence.

The argument, which was accepted by the court a quo, was that the respondent ought to have been found guilty of the offence that she had been charged with, a lesser offence or a competent offence flowing from the one charged. Instead, the Hearing Officer found her guilty of gross negligence which is a more serious offence than the one with which she had been charged.

Although the respondent was charged with 'mere negligence', it cannot be denied that what the respondent did was a serious act of misconduct when one has regard to all the factors in this case. In my view, the Hearing Officer cannot be impugned for having arrived at this conclusion after hearing all the evidence against the respondent. It should be noted that disciplinary proceedings, not being courts of law, are not bound by strict rules of procedure and it was quite proper for him to find her guilty of gross negligence where the evidence disclosed such an offence.

In any event, there is no doubt that the respondent was still found guilty of negligence - though it was of a more serious nature.

At common law, an employer has the power to dismiss an employee where the employee is found guilty of misconduct that goes to the root of the employment contract.

See Toyota Zimbabwe v Posi SC55-07.

In essence, where the employer takes a serious view of the misconduct he can dismiss an employee even if in terms of the Code of Conduct the offence would have attracted a lesser penalty. This position was set out in Zimplats (Pvt) Ltd v Godide SC02-16 where GOWORA JA noted that:

“At common law, an employer has the discretion on what penalty can be imposed upon an employee who has been found guilty of an act of misconduct which is inconsistent with the fulfillment of the expressed or implied terms of his or her contract of employment and where such misconduct goes to the root of his or her employment contract. It is also settled that an appeal court cannot interfere with the exercise of this discretion by the employer unless there has been misdirection in the exercise of such discretion.”

GOWORA JA further noted that:

“The court ought to have asked itself whether the employer had properly taken a serious view of the matter and whether there was sufficient evidence to support the conviction on the preferred charges. Unfortunately, the court a quo did not ask itself these pertinent questions and proceeded to determine the matter on an issue which was not even premised on the grounds of appeal before it. The law is clear that once an employer takes a serious view of the matter and the aggravated nature of the misconduct, it is irrelevant that the Code does not provide for dismissal as a penalty. In Circle Cement v Nyawasha SC60-03, this court held:

'Once the employer had taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment the question of a penalty less severe being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.'”

I associate myself fully with the above remarks.

The issue to be determined by this court is whether the employer took a serious view of the matter and made a finding that the misconduct was of an aggravated nature based on the evidence. It is also important to establish whether the respondent was guilty of an offence which went to the root of the employment contract.

It is clear from the record that the disciplinary hearing was conducted in a fair manner and the respondent had the chance to advance evidence in the claim made against her. It is apparent from a reading of the record that the Hearing Officer…, was cognizant of all the factors that were presented before him. In determining the penalty to be imposed he stated the following:

“I have weighed the facts presented by both parties. I do understand that there was an increase in work because of the merger. However, Mrs Masunda did not understand the value attached to CIMAS claim forms, though she outlined that she was working under pressure. I saw an email here dated 25 April 2008 from Mrs Masunda to Mrs Chimhamhiwa advising her of the pressures that the clinic was facing. The challenge is the value of these claims; one, the face value and two, time value considering inflation. At the moment the Bank had to fund the claims. The claims submitted so far amounted to +/- ZW$620 trillion. Mrs Masunda indicated that CIMAS might pay three quarters of the amount under normal circumstances. The focus is now on the monetary value of the offence at hand and the period that was taken by the respondent to take this issue seriously. According to the Code of Conduct I would refer this as gross negligence causing serious loss to the Bank and this falls under category D and the penalty that goes with this is dismissal.”

There is no doubt that the Hearing Officer took a serious view of the misconduct of the respondent in making a determination of the penalty. The fact that the respondent did not report that the medical aid forms were not being filed, as is required, shows that she did not really appreciate the gravity of the offence. The financial loss to the appellant, as a result of the respondent's negligence, was extremely high.

The respondent did not dispute this during the hearing. She also did not dispute the fact that she only made a report that there was a need to employ another person but did not explain that the work overload had resulted in the failure to file the medical aid claim forms for a long period.

Had she reported this fact to her supervisor the employer might have ensured that another person was employed to assist in doing the outstanding filing work. Her negligence resulted in the company losing ZW$623 trillion.

It is clear that the filing of the medical aid claims was an integral part of the respondent's duties as an employee of the appellant.

Where an employee fails to further the interests of the employer by omitting or refusing to do the work he is employed to do such failure amounts to a serious misconduct that goes to the root of the employment contract. There can be no doubt on the facts of this case that the respondent failed to execute her duties as was expected.

Section 4(2)(f) of the Code of Conduct for the Banking Undertaking, S.I. 273 of 2000 provides that:

“(f) Having examined all the facts, the Hearing Officer shall determine the disciplinary action to be taken, having taken note of comments by the workers' representative.”

The Hearing Officer, having considered all the circumstances, took a serious view of the matter and this  resulted in the respondent being found guilty of gross misconduct and dismissed from employment.

That decision, in my view, was not unreasonable. The loss suffered by the appellant was high. That loss could have been avoided had the respondent made a complaint earlier.

I find no impropriety in the manner in which the Hearing Officer exercised his discretion in this regard.

It is a trite principle of our law that an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court. In other words, the decision must have been irrational, in the sense of being so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at such a conclusion. 

See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664.

The only basis upon which the court a quo could have made a finding for the respondent is by investigating whether the decision of the Hearing Officer was irrational in the above sense and it is upon making such a finding that the court could have set aside the decision of the disciplinary tribunal. In the absence of a finding of a misdirection by that tribunal, the court a quo therefore misdirected itself by interfering with the finding of the lower tribunal….,.

In the circumstances, the court is satisfied that the appeal ought to succeed.

Accordingly, it is ordered as follows:

1. The appeal succeeds with costs.

2. The order of the Labour Court is set aside and substituted with the following:

In terms of section 25(2) of the Supreme Court Act [Chapter 7:13], this court is imbued with powers to set aside proceedings that are irregular - even if those proceedings are not the subject of an appeal or application before the court.

I am fortified in this view by the remarks of ZIYAMBI JA in The Chairman, Zimbabwe Electoral Commission & 2 Ors v Roy Bennet & Anor SC48-05, as follows:

“Section 25(2) confers additional jurisdiction which may be exercised when it comes to the notice of the Supreme Court or a judge of that court that an irregularity has occurred in proceedings not before it on appeal or application. Thus s 25(2) deals with irregularities in respect of which no appeal or application is before the Supreme Court and the review is undertaken at the instance of the Supreme Court and not of any litigant.”

In Zimasco v Marikano SC06-14, GARWE JA made remarks that are apposite and pertinent to this principle…, to the following effect:

In any case, numerous authorities in this jurisdiction and beyond effectively caution against treating disciplinary proceedings at the work place, as if they were court proceedings….,.

GEO QUINOT's 'Administrative Law: Cases and Materials' Second Edition…, expressed the following remarks;

“While it is true that the duty to act fairly and listen to both sides lies upon everyone who decides anything, one should be careful not to treat administrative tribunals as though they were courts of law…,. The test in matters of this nature is whether the hearings were fair when proceedings are judged in their broad perspective.

We should not lose sight of the fact that one is here dealing with disciplinary hearings presided over by largely laymen. Therefore, they cannot be expected to observe all the finer niceties that would have been observed by a court of law. It appears that every effort was made to give the first applicant a fair opportunity to be heard before an impartial tribunal…,.”

Analysis of the judgment in the case of Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee and Others 2000 (4) SA 621 (C).

See also Anglo American Farms t\a Boschendal Restaurant vs Konjwayo 1992 13 ILJ 573…,.

These resonate with some remarks made by this Court, in particular the following comments made by the learned judge in the case of Dalny Mine v Banda 1999 (1) ZLR 220 SC…,.;

“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.”

Further to this, I find, on a proper consideration of the minutes of proceedings before the disciplinary authority, that every effort was made in casu to minimize, if not eliminate altogether, any perception of the appellant not having been accorded a fair trial.

Albeit, chaired by a person whose position had been 'compromised', to use the appellant's terminology, it is evident from the record of proceedings that full proceedings were held. The appellant was asked to call his own witness but declined to do so. During the hearing, the appellant does not appear to have been in any way restrained in expressing himself on any issue he felt had to be addressed. The record shows that he interjected whenever he felt he had something to say to challenge the actions or non-action of the appellant's witness, to explain why he had done what he was charged with and even to advance some argument in mitigation. He also argued his case through the answers that he gave to any questions asked, the questions that he himself put as well as un-invited comments that he made on the correctness or otherwise of the arbitrator's determination of the merits of the case and the court a quo's upholding of the same.

In relation to the alleged failure by the appellant to cross examine the respondents' witness who was officially the complainant, I find there is substance in the following submissions made on behalf of the respondent;

“The minutes of the hearing do not show that the appellant was denied the right to cross examine witnesses. They actually show he was belligerent and rude to the hearing authority as well as the Managing Director who was the complainant…,.”

The minutes also show that the appellant did question the complainant, for example about why he had not acted sooner than he did, to take corrective action related to the charges he was facing. The respondent also contends, correctly, that the appellant never asked to cross-examine the complainant beyond his 'rude interjections.' He also did not indicate what other questions he may have wanted to put to the complainant nor how his failure to do so caused him to suffer any prejudice, if any.

I find that, in the spirit of the commonly accepted principle 'substance matters more than form' that the totality of the disciplinary proceedings shows clearly that the applicant adequately argued his case.

In addition to having done so, the appellant did not deny committing the offence in question, nor did he challenge the finding of guilt made by the arbitrator, and confirmed by the court a quo. The ground of appeal that touched on the issue of guilt is one of those that he has abandoned.

In light of this, I find there is merit in the following averments made on behalf of the respondent;

“Any procedural irregularities in the matter could not outweigh appellant's guilt, and it would be a travesty of justice for appellant to be reinstated simply on the basis of procedural irregularity.”

This position finds support in the comments made by CHIDYAUSIKU CJ in Air Zimbabwe (Pvt) Ltd v Chiku Munensa & Mavis Marweyi SC89-04;

“A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee. He should escape such consequences because he is innocent.”

It is also pertinent to note that while the appellant seems to insinuate in his grounds of appeal that the arbitrator's compensatory award to him of arrear salaries and benefits was inadequate, he did not take this matter on appeal, nor did he give any indication that he had rejected the award.

As a result, I find there is no basis for faulting the finding of the court a quo that the appellant failed to demonstrate any actual bias on the part of the Chairperson of the disciplinary hearing to the extent that warranted nullification of the proceedings in question. Equally, I find no fault with the judge's finding that the appellant failed to prove that he suffered any prejudice as a result of the alleged bias.

In all respects therefore, I find that this appeal lacks merit and ought to be dismissed. It is accordingly ordered as follows:

1. The appeal be and is hereby dismissed.

The respondent was employed by the appellant as a Sales Marketing Manager. During the currency of his employment he fell ill and proceeded on 90-day statutory sick leave. At the expiry of his statutory leave his doctor recommended retirement on medical grounds. 

Upon expiry of his sick leave, he did not report for duty on account of his continued illness. He was then required to appear before the ZESA Medical Board for a final assessment of his medical condition and recommendation.

For purposes of performing its function, the Medical Board requested the respondent to provide a specialist surgeon's report.  He was unable to provide the specialist surgeon's report as requested.  His failure to provide the specialist report and continued absence from work prompted the appellant to institute disciplinary proceedings against him alleging absenteeism from work.

The matter was initially set down for hearing before the disciplinary committee on 23 December 2011. The notice to appear before the disciplinary committee, dated 14 December 2011, advised the respondent of his rights and cautioned him that in the event of him defaulting, the hearing would proceed in his absence. To this end, the notice reads in part:

“Please note that you must appear before the Disciplinary Committee (in) person and you are allowed to bring a Legal Practitioner or fellow employee to represent you.

Please also note that should you not avail yourself to the hearing, the hearing will proceed and judgment passed in your absence.”…,.

The respondent duly received the notification. He however requested, in writing, that the matter be postponed to 30 December 2011. His written request reads:

“SUBJECT: NOTICE TO APPEAR BEFORE A DISCIPLINARY COMMITTEE

Please note that I received your communication in connection with the above on Friday the 16^th in the afternoon. Considering that I am now staying with my family in Bulawayo and I have to travel to Harare to organise my legal representation I propose that the hearing date be moved to a later date, 30^th of December 2011. Please note that this date is my proposal before communicating with my legal practitioner. I will be travelling to Harare tomorrow, Tuesday the 20^th, funds permitting considering I am not earning anything, and will meet my lawyer on Wednesday the 21^st who will then contact you on my behalf.”

The appellant acquiesced and agreed to postpone the disciplinary hearing to 30 December 2011 to accommodate the appellant's request for a postponement. The matter was then set down for hearing on 30 December at the respondent's special instance and request.

Despite having indicated that his legal practitioners would contact the appellant, no lawyer contacted it.  Instead, the respondent sent an email to the Human Resources Manager on the eve of the date of hearing seeking a further postponement to any time after 3 January 2012. The letter reads:

“SUBJECT: NOTICE TO APPEAR BEFORE A DISCIPLINARY COMMITTEE

My memo dated 19 December 2012 refers.

I write to inform you that I have just been informed that my legal counsel will not be available to represent me tomorrow. I had confirmed the date on the strength that the law firm was open only to be advised this morning that my lawyer will not be available. I humbly request that you set a hearing date for after the 3^rd of January 2012 when everyone will be back from the holidays, I will wait to be advised of the new hearing date from yourselves.”

The respondent's letter was not responded to considering that it was written at short notice on the eve of the date of hearing. Despite notification, he however absented himself from the hearing with full knowledge that the hearing would proceed and judgment delivered in his absence. Considering that the notice of hearing called upon him to appear in person, the unavailability of his lawyer on that date was no valid excuse for him not to attend. 

His default was therefore wilful and deliberate.

The Disciplinary Committee convened and deliberated over the matter in his absence. He was found guilty of absenteeism and dismissed from employment in absentia.

Aggrieved by the disciplinary committee's determination, the respondent took the matter on review to the Labour Court citing procedural irregularities. The Labour Court found in his favour. It reasoned that the appellant's failure to postpone the matter, after being requested by email, amounted to denying the respondent the right to be heard.

On the basis of such finding, the Labour Court set aside the disciplinary committee's determination and ordered reinstatement without loss of salary or benefits. The appellant was ordered to pay costs of suit. 

Dissatisfied with the judgment of the court a quo, the respondent appealed to this court.

The crisp issue for determination is whether the respondent was denied the right to be heard in the circumstances of this case.

The right to be heard is a fundamental cornerstone of our law. It is a fundamental principle of the rules of natural justice forming the backbone of a fair hearing enshrined in our Constitution as read with the Administrative Justice Act [Chapter 10:28]. The maxim that no one shall be condemned without being heard holds sway in our law.

The right to be heard is, however, not an absolute immutable rule of law. It can be waived or forfeited where the beneficiary is at fault.

It is now necessary to ventilate the law and apply it to the undisputed established facts as narrated above.

PROFESSOR G FELTOE in his booklet, A Basic Introduction to The Administrative Law of Zimbabwe, states…, that the principle of natural justice can be waived when he says:

“Clearly, when a person is offered the chance to exercise one of the rights recognized as being part of the principles of natural justice and he declines to avail himself of this right, then he has waived his right.”

The same learned author proceeds to elaborate in his other book, A guide to Administration and Local Government Law, 2009…, that:

“Where a party, due to his own fault, fails to attend a hearing after being properly notified to attend, the enquiry can proceed in his absence.”

The courts have consistently held that to be the unquestionable position at law. See Chitizanga v Chairman of the Public Service Commission & Anor 2000 (1) ZLR (H) 201 and Rwodzi v Chegutu Municipality HH86-03 relied upon by the appellant.

The facts before the court a quo established beyond question that the respondent was given notification of the hearing date. He successfully negotiated for a date convenient to himself but defaulted on the date of hearing. His request for a further compromise by email could not absolve him from attending the hearing unless it was granted by the employer. By deliberately absenting himself from the hearing the respondent irrevocably waived his right to be heard.

In light of his deliberate default from the hearing, the Disciplinary Committee was within its rights in proceeding with the hearing in his absence as previously advised. The respondent cannot be heard to complain when he deliberately absented himself from the hearing with the full knowledge that the disciplinary hearing was going to proceed in his absence. He voluntarily elected not to attend the hearing. 

He has no one to blame except himself; volenti non fit injuria.

The learned judge in the court a quo therefore misdirected herself and fell into gross error by wrongly apportioning blame on the respondent when in the eyes of the law the respondent was not to blame at all.

It is accordingly ordered:

1. That the appeal be and is hereby allowed with costs.

 2. That the judgment of the Labour Court be and is hereby set aside and substituted with the following;

Prospects of success

The applicant alleges that the court a quo erred in preferring the definition of fraud in the Criminal Law (Codification and Reform) Act instead of a definition from the Dictionary. The applicant further alleges that the court a quo erred in law in finding that the respondent's guilt had to be proved beyond a reasonable doubt.

While I perceive there to be nothing amiss in adopting the definition of fraud as defined in the Criminal Law (Codification and Reform) Act, I am not persuaded that an offence in a labour dispute must be proved beyond a reasonable doubt. It is trite that proof in civil, disciplinary proceedings must be on a balance of probabilities. I therefore hold the view that the judge a quo erred in applying a burden of proof that is applicable in a criminal trial.

Whether there is a distinction at law between gross inefficiency and gross incompetence

The appellant was charged for gross incompetence or gross inefficiency in the performance of his duties but was found guilty of gross inefficiency.

The arbitrator set aside the conviction and dismissal on the basis that the facts did not prove that the appellant was grossly incompetent or inefficient. In terms of the arbitrator's finding, for one to be found guilty and be dismissed from employment for gross inefficiency, the principles to be applied are those which are applicable to gross incompetence as stated in the case of Kwangwari v CBZ 2003 (1) ZLR 551 (H)…,. That is whether the appellant was made aware of the standard that he was required to meet; whether he was given sufficient training; and whether he was given an opportunity to reform.

In support of that finding, counsel for the appellant submitted that the findings of the arbitrator are correct because there is no substantial difference between gross incompetency and gross inefficiency. He submitted that since the offence is characterised as gross incompetence or inefficiency, the test is the same. Counsel for the appellant further submitted that incompetence is broader and inefficiency is its component.

I do not agree.

On the other hand, counsel for the respondent submitted that gross incompetency and inefficiency are two different offences that is why the framers used the disjunctive 'or'.  He further submitted that the requisites of these two offences are different.

I agree.

The misconduct was couched as “gross incompetence or inefficiency in the performance of his duties.”  The use of the word 'or' means either of the two but the requirement is that it be gross of either incompetence or inefficiency. This means for one to be guilty of misconduct, he has to be found to be either incompetent or inefficient. A distinction at law between the two is found in the fact that it can be either of the two.

The literal meanings of the two words can be useful in establishing a distinction between them.  Incompetence is defined as “the lack of skill or ability to do a job or a task as it should be done."  Inefficient is defined as “not doing a job well and not making the best use of time, money, energy etc.” (See the Oxford Advanced Learner's Dictionary, International Student's ed…,.).

An incompetent employee lacks the knowledge of what to do and how to do it, while an inefficient employee knows what to do and how to do it, but simply fails to exact himself in doing what he knows. 

There is, therefore, a difference between the two.

Thus, an inefficient employee may be competent in so far as having the necessary skill or ability to do his work but does not do it efficiently due to dereliction of duty, laziness, carelessness, negligence, lack of zeal, lack of personal drive, not being thorough, procrastination of performance of duties or some other personal traits which hinders him from doing his job efficiently and make use of resources optimally.

An incompetent employee could be able to use time and energy well but his lack of skill will not be remedied by such good use of time and other resources.

In this case, the appellant, by setting targets which earned him a respectable four out of five, demonstrates competency. He, on the other hand, demonstrated inefficiency by arranging to meet the owners of the containers, Grindsberg, on three occasions but failed to avail himself for such meetings on all three occasions when the owners came for the meetings - at his invitation. This demonstrates that the appellant's conviction was not based on a single incident. It was based on failure to supervise his Department over a period of six months and failure to perform his duties efficiently. He set targets which earned him a good rating but did not exact himself to implement them.

That said, it is important to know the relevance of this ground of appeal which seeks to impugn the decision of the court a quo based on making this distinction.

It would appear that the appellant seeks to put across the point that it matters not what principles the arbitrator applied, incompetence or inefficiency, there is no real distinction at law between the two. That is not correct because the misconduct itself is couched disjunctively. As has been highlighted above, the appellant was grossly inefficient when he failed to supervise his department and relied on assumptions for almost six (6) months and failed to attend three meetings he had scheduled.

Whether the court a quo erred in not applying section 12B(4) of the Labour Act to set aside the penalty of dismissal

The last issue relates to the issue of the penalty imposed by the disciplinary hearing. It is trite that penalty is in the discretion of the employer. See Malimanjani v CABS 2007 (2) ZLR 77 (S); Toyota Zimbabwe v Posi 2008 (1) ZLR 173 (S). The employer's discretion can only be challenged where its exercise was grossly unreasonable, capricious, or mala fide. See the case of ZFC v Geza 1998 (1) ZLR 137 (S). 

In the case of Barros v Chimpondah 1999 (1) ZLR 58 (S), the court held as follows:

“It is not enough that the Appellate Court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution.”

In the absence of a finding of gross unreasonableness, the Appellate Court or tribunal cannot substitute its own discretion simply because it would have taken a different course.

In casu, the appellant had a final warning for inefficiency, albeit from a different department but within the same organization, as an employee of the respondent. Inefficiency need not be related to the same duties but is a reflection of the employee's inability to produce the best possible output. It is not like incompetency which is centred on lack of skill or ability to do a certain task but, instead, it is the manner of performing his duties. In the negative, inefficiency relates to a person's failure to perform optimally.

In light of the final warning, the respondent's exercise of discretion resulting in the dismissal of the appellant was not outrageous and did not defy logic and thus did not warrant interference.

Section 12B(4) of the Labour Act [Chapter 28:01] provides as follows:

“(4) In any proceedings before a labour officer, designated agent or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee's service, the employee's previous disciplinary record, the nature of the employment and any special personal circumstances of the employee.”

In interpreting section 12B(4) of the Labour Act [Chapter 28:01], this court, in Mashonaland Turf Club v Mutangadura SC05-12 held that;

“In the exercise of their powers in terms of s 12B(4) of the Labour Act, the Labour Court and arbitrators must be reminded that the section does not confer upon them an unbounded power to alter a penalty of dismissal imposed by an employer just because they disagree with it. In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an Appeal Court will generally not interfere with the exercise of the employer's discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.”

The court a quo considered the propriety of the dismissal penalty and decided that the final warning justified the penalty.

The employee's previous disciplinary record is a relevant consideration in terms of section 12B(4) of the Labour Act [Chapter 28:01]. In the case of Zimbabwe Alloys Ltd v Muchohonyi 2006 (1) ZLR 389 (S), failure to take into account the disciplinary record of an employee was held to be a misdirection on the part of the Labour Court in exercising its powers under section 12B(4) of the Labour Act [Chapter 28:01].

As stated above, the task of the Labour Court, sitting as an appellate body, was to take into consideration the provisions of section 12B(4) of the Labour Act [Chapter 28:01] in determining whether the employer was grossly unreasonable in the exercise of its discretion. 

It found none. 

It did not, therefore, err in finding that the misconduct went to the root of the contract of employment and warranted the penalty of dismissal.

I therefore find that the court a quo correctly found that the appellant was guilty of gross inefficiency and that the penalty of dismissal was accordingly reasonable in the circumstances. Accordingly, it is ordered as follows:

This is an appeal against a decision of the Labour Court which dismissed an appeal against the appellant's dismissal from employment.

BACKGROUND

The appellant was employed by the respondent as the Senior Payroll Clerk in the Audit Division of the Salary Services Bureau. Sometime in 2002, the appellant applied for a loan from a moneylender, Dollartech Finance, hereafter referred to as Dollartech. He furnished Dollartech Finance with his pay slip in support of the application. His application was successful and he was granted the loan. Dollartech faced difficulties in having the monthly repayment deducted from the appellant's salary as his net salary was insufficient for the purpose.

The matter was brought to the attention of the respondent by Dollartech Finance. The appellant was charged with misconduct in terms of paragraph 13(d) of the First Schedule (Section 2) of the Public Service Regulations, 2000 - dishonesty including falsifying or attempting to falsify any document with fraudulent intent or uttering forged document. The allegation was that he used a fake September 2002 pay-slip to borrow money from Dollartech Finance and the amount could not be deducted because his net salary was insufficient.

The appellant was called upon to submit a written reply to the allegations. He complied. He wrote a letter on 21 February 2003.

A disciplinary hearing was held on 2 July 2004. The disciplinary committee found the appellant guilty of the misconduct charged and recommended his discharge from employment. The pertinent portion of the record of the disciplinary committee's proceedings reads:

“The Committee noted that:-

(1) Mr Garwe, in his letter of response to the allegations had shown that he felt ashamed of all what happened, he apologized, in the same letter, to the whole Department and Government as a whole for the image that could have been tarnished by his actions. He made an assurance that he would not do it again.(sic)

(2)…,.

(3)…,.

(4)…,.

(5) Mr Garwe's response before the Committee was inconsistent to his letter of response to allegations leveled against him. (sic)….,.

The committee found Mr Garwe guilty of an act of misconduct of dishonesty including falsifying or attempting to falsify any document with fraudulent intent or uttering forged document. This is in terms of section 13(d) of the First Schedule (Section 2) of the Public Service Regulations 2000. (sic)

Committee's Recommendations

The Committee recommended that Mr Garwe be discharged from the Public Service Commission Secretariat.”

After the disciplinary committee hearing, the appellant allegedly fell ill from August 2004 until sometime in early 2005. During this period of illness, and specifically on 29 October 2004, the appellant submitted a letter from his doctor to his employer, requesting early retirement on medical grounds.

On 11 May 2005, the appellant received a letter of even date by the Salary Services Bureau informing him of the decision of the employer, following the disciplinary hearing of 2004, to dismiss him from the Public Service. The final paragraph of the letter advised the appellant as follows:

“Section 51(1)(b) of the Public Service Regulations 2000 provides that if you are not happy with this determination and penalty, you are free to either appeal against this determination and penalty or both to the Labour Relations Tribunal or request the Commission, in writing, through the Secretary, to review the determination or penalty or both within 21 days of this minute.”

The appellant requested a review of the proceedings.

The appellant's request for review does not form part of the record. His grounds for review are captured in the Public Service Commission's record of proceedings of April 2006 as follows:

“Mr Garwe submitted the following as his grounds for review:-

(a) That there was an inordinate delay in the manner in which the case was handled. He was charged in February 2003, a disciplinary committee was appointed more than a year later and the determination was made in May 2005. This prejudiced him as memories fade and witnesses changed residence;

(b) That the disciplinary committee was chaired by Mr Chitambara who had earlier on received the complaint from Dollartech Finance. He investigated the matter and actually promised the complainant that disciplinary action was going to be taken. He was therefore biased;

(c) That members who constituted the disciplinary committee were appointed by the Secretary to the Commission even though the Commission was not the disciplinary authority;

(d) That the disciplinary committee found him guilty without the production of the alleged fake pay-slip. The pay-slip was not produced as documentary evidence when he was charged and neither was it produced at the disciplinary hearing;

(e) That Salary Service Bureau concerned itself with dishonesty that was not directed at the employer and had not arisen during the course of duty. Further, failure to repay a loan was only misconduct if the loan was owed to the State, a statutory fund or a local authority;

(f) That the department should not have concerned itself with what members do with their pay-slips;

(g) That the misconduct charge was not properly framed to enable him to respond from an informed position. It was not defined how fake the pay slip was and there were no witnesses at the hearing to explain why the pay-slip was thought to be fake;

(h) That a pay-slip just shows how earnings for that month were intended to be disbursed. The disbursement plan could be varied before the pay-slip was issued. The pay-slip therefore did not, as a matter of fact, show what the member's net income for the month or the following months will be. The fake pay-slip did not prejudice the money-lender.”

The record of proceedings also highlights the following:

“Mr Garwe prayed that he be reinstated into the service without loss of benefits. He also urged the department to concentrate on its core business of paying salaries rather than assist debtors of civil servants (sic) to recover monies they are owed.

In a letter dated 20 May 2005, Mr Garwe submitted that his discharge from the service was in complete violation of the recommendations of a Medical Board that had recommended his retirement on medical grounds.”

The Public Service Commission convened to consider the matter, and, on 12 April 2006, the Acting Secretary wrote to him confirming the determination of his guilt and the imposition of the penalty of discharge. The letter reads in part:

“REQUEST FOR REVIEW: MR PAUL GARWE: E.C. NO.1253558 M: FORMER SENIOR PAYROLL CLERK: SALARY SERVICE BUREAU: PUBLIC SERVICE COMMISSION

The above matter refers.

Be advised that the Commission, acting in terms of section 51(3) of S.I.1 of 2000 as amended, confirmed the determination of guilt and the penalty of discharge which was imposed on you.

In arriving at the above decision, the Commission took into account the following:-

(a) That in your response to the misconduct charge, you admitted having submitted a fake pay slip to Dollartech Finance. You submitted that the pay slip had been done by tricksters. The foregoing was considered an unequivocal admission that you deliberately used an incorrect record of your earnings in order to obtain a loan from Dollartech Finance;

(b) That there was no shred of evidence to support the claim that Dollartech Finance had a hand in the misconduct charges that were preferred against you;

(c) That the fake pay slip on record showed that you had a net salary of $48,026=54. However, the correct record of your net salary for September 2002 was $51=53;

(d) That after you had been charged with misconduct on 12 February 2003, you subsequently paid the money that you owed the money lender on 20 February 2003. It was therefore not in dispute that you received a loan from Dollartech Finance. In light of the above, the fact that you were not availed a copy of the fake pay slip which you had submitted to Dollartech Finance and which pay-slip you did not request from the disciplinary authority was considered immaterial and not an irregularity;

(e) That you did not explain why you did not request Mr. Chitambara to recuse himself from the hearing if you were aware that he had investigated your case and could have been partial in the hearing. Furthermore, you did not prove that he was biased as the Chairman of the hearing. Your argument that the Chair of the disciplinary hearing was biased could therefore not be sustained;

(f) That the Commission neither declared itself the disciplinary authority in your case nor did it appoint members of the disciplinary committee which heard your case; and

(g) That you could not be retired on medical grounds before the conclusion of your misconduct case.

There was nothing wrong with the Paymaster, Salary Service Bureau determining your misconduct case before considering the recommendations of the Medical Board.”

Aggrieved by the decision of the Public Service Commission, the appellant appealed to the Labour Court seeking, in his notice of appeal, the relief that the respondent “be compelled to determine whether the appellant is still fit to remain in service and if appropriate retire him on medical grounds.

In his heads of argument before the Labour Court, he sought more extensive relief. He prayed for his appeal to be allowed with costs and for the determination appealed against to be set aside and substituted with a finding that he is not guilty of misconduct; an order that he be paid the full amount of his salary, bonuses and benefits that he ought to have been paid during the period of suspension and discharge; that he be reinstated without loss of salary and benefits or grade and that steps be taken in terms of section 18(5) to retire him from service on grounds of ill health.

The appellant's grounds of appeal in the Labour Court were basically that –

(i) The disciplinary committee was improperly constituted; 

(ii) That the Chairperson of the disciplinary committee was biased as he had been involved in the investigation of the matter;

(iii) That his disciplinary hearing was not conducted by a disciplinary authority for the reason that as he was engaged in the middle grade, only the head of Ministry could appoint a disciplinary committee to consider the allegations against him; 

(iv) That the respondent had failed to prove its case against him; and

(v) That the issue of the fake pay-slip had nothing to do with his employer or his employment.

It was the appellant's contention that the essential elements of the misconduct with which he was charged were not proved as it was not established that he had been dishonest in the course of his employment or that there had been any prejudice caused as he repaid the loan in full. He further contended that the Public Service Regulations do not concern themselves with misrepresentations that take place outside employment.

Another ground raised by the appellant was that an improper motive had caused or resulted in the charges being preferred against him and contended that this was borne out by the fact that the misconduct process was selectively applied amongst employees who had conducted themselves in a similar fashion.

In his submissions to the Labour Court, the appellant alleged, among other things, that there are about ten other employees who had done exactly what he had done but were still in employment. He is recorded as stating:

“I just want to add that other people are still employed but were also investigated but had done exactly what I did. There are about 10 or so. I actually investigated and I have copies.”…,.

He also alleged that the respondent terminated his employment in order to avoid retiring him on medical grounds.

The Labour Court found that his appeal lacked merit and dismissed it.

THIS APPEAL

Aggrieved by the dismissal of his appeal by the Labour Court, the appellant appealed to this court. His lengthy grounds of appeal raise the following issues to be determined by this court:

1. Whether or not the procedural irregularities raised by the appellant are so fatal as to warrant the disciplinary proceedings being rendered a nullity.

2. Whether or not there was sufficient evidence to prove appellant's guilt and to justify his dismissal.

PROCEDURAL IRREGULARITIES

Authority to discipline a member of the Commission

The functions of the Public Service Commission are provided for in section 8(1) of the Public Service Act [Chapter 16:04]. The section reads:

“Subject to this Act and any other enactment, the functions of the Commission shall be -

(a) To appoint persons to the Public Service, whether as permanent members or on contract or otherwise, to assign and promote them to offices, posts and grades in the Public Service and to fix their conditions of service. …,.

(b) To inquire into and deal with complaints made by members of the Public Service;

….

(e) Subject to Part V, to exercise disciplinary powers in relation to members of the Public Service…,.” …,.

The appellant's post of Senior Payroll Clerk is graded by the respondent as middle grade…,. In his oral submissions before this court, the appellant said that he had merely assumed that as he was a Senior Payroll Clerk and it translated to him being in the senior grade. His assumption was erroneous. In any event, and curiously so, the submission is contradictory of his previous stance in the Labour Court that he was a middle grade employee.

With reference to disciplinary authorities for the different employment levels or grades in the Public Service, section 42 of the Regulations provides as follows:

“(1) The disciplinary authority for the purposes of appointing a disciplinary committee in terms of section 43, determining any allegations of misconduct by a member in terms of section 46 and imposing a penalty in terms of section 50 shall be –

(a) In the case of a member in a senior grade, the Commission;

(b) In the case of a member in a middle grade, the head of Ministry;

(c) In the case of a member in a junior grade, the head of department;

Provided that the Commission may determine that it shall be the disciplinary authority in any particular case.

(2) The disciplinary authority for the purposes of sections 44, 47 and 48 shall be –

(a) In the case of a member in a senior grade, the Commission;

(b) In the case of a member in a middle grade, the head of Ministry or the head of office in charge of the member;

(c) In the case of a member in a junior grade, the head of department or the head of office in charge of the member.”

The respondent gave a clear explanation of how this provision was adhered to.

The Commission is, for administration purposes, a Ministry in its own right. The authority for this is found in the definition section (section 2) of the Public Service Regulations which states:

“'Head of Ministry', in relation to a member of the Public Service, means the Secretary of the Ministry in which he is employed or the occupier of any other office or post which the Commission, with the concurrence of the appropriate Minister, directs shall constitute his head of Ministry…,.'”

In casu, the Secretary of the Commission holds this post, and, in exercising the role of disciplinarian of middle grade employees, the Secretary appointed a disciplinary committee.

The appellant was charged on 12 February 2003. The committee was appointed on 2 June 2004. It sat on 2 July 2004 and the determination was assented to by all the members in August 2004.

The appellant never challenged the disciplinary authority at the hearing. He subjected himself to it. If he had challenged the disciplinary committee at the hearing, its members would have been the best placed to deal with whatever submissions or evidence would have been presented to them on the issue.

The appellant's contention or alleged irregularity under this heading lacks any basis and is thus of no consequence.

Alleged improper constitution of the Disciplinary Committee

Regarding the allegation of improper constitution of the disciplinary committee, section 43 provides:

“(1) A disciplinary authority shall appoint a disciplinary committee to hear allegations of misconduct against members and make appropriate recommendations to the disciplinary authority.

(2) A disciplinary committee appointed by –

(a) The Commission shall consist of –

(i) A Chairman who shall be any head of Ministry appointed by the Commission; and

 (ii) Two other members appointed by the Commission who are in a senior grade from any Ministry other than the one in which the allegation of misconduct arose.

(b) A head of Ministry shall consist of –

 (i) A Chairman who shall be the principal establishment officer of the Ministry or a member of equivalent rank; and

(ii) Two other members appointed by the head of Ministry who shall be confirmed members;

(c) A head of department shall consist of –

(i) A Chairman who shall be the deputy head of department or a member nominated by the deputy head of department to act on his behalf who is approved by the head of department; and

(ii) Two other members appointed by the head of department who shall be confirmed members.”

In casu, the disciplinary hearing was chaired by the Deputy Head of the department.

In terms of the Regulations, no irregularity was occasioned thereby. The appellant's view that the other two members of the Disciplinary Committee were not qualified by reason of their not being members of his department is clearly erroneous. The Regulations merely provide that the other two members of the committee should be confirmed members. A confirmed member is defined in section 2 of the Regulations thus:

“Confirmed member means a member who is confirmed in the appointment after a period of probation, or was established officer in accordance with section 5 of the Public Service (General) Regulations, 1992, before the date of commencement of these Regulations.”

The section does not preclude members from other departments from being appointed in the disciplinary committee.

The appellant's contention or alleged irregularity on this aspect is also baseless and lacks merit.

Alleged bias of the Chairman of the disciplinary hearing

The appellant alleged that the Chairman of the disciplinary committee was biased because he was the same individual who investigated the matter when it was brought to the attention of the Commission.

There is no record of the appellant requesting the recusal of the Chairman as he would have been expected to do in such circumstances. See See Mupandasekwa v Green Motor Services (Pvt) Ltd SC30-15…, where the following was stated:

“…,. The likelihood of bias can only, logically, be raised before or perhaps during the proceedings in question. In such cases, an affected party would normally be expected to request that the person suspected of such bias recuse him or herself from participation in the proceedings in question. There is no record that in casu such a request was made by the appellant in respect of the Chairperson of the disciplinary proceedings. Consequently, proceedings continued to finality. The appellant could only, after that, have relied on demonstrated bias to request that the proceedings be set aside.

The court a quo found that he had failed to do so.”

There is no reason on record why he did not raise his concerns at that stage. To the contrary, he is on record thanking the Committee for facilitating the hearing and imploring them to allow him to resume his duties.

The hearing continued to finality.

The onus rests upon the person alleging bias to establish the allegation.

The appellant made an unsubstantiated allegation against the Chairperson of the committee and only did so after the conclusion of the hearing leading to his conviction and dismissal. He has failed to show that he suffered prejudice because of the alleged irregularities. In Musarira v Anglo American Corporation SC53-05, the following was highlighted:

“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.”

Equally pertinent is the following statement that was made in Watyoka v ZUPCO SC87-05:

“The appellant also raised a complaint about the composition of the disciplinary committee, but it was not shown that there was any bias or prejudice at all. The composition of the committee is a technicality that cannot be allowed to nullify the proceedings which, according to the record, reflect that he had a fair hearing.”

The same position at law was also highlighted in Nyahuma v Barclays Bank of Zimbabwe SC67-05 in the following statement:

“...., it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”

The dicta in all the above cases can be applied with equal force in casu.

The appellant has not shown that the Chairperson was biased; neither has he shown that he suffered prejudice because of his involvement in the case. He has thus failed to substantiate the procedural irregularities that he raised.

There have, thus, not been shown to be any procedural irregularities that warrant that the disciplinary proceedings be rendered a nullity.

Whether or not there was sufficient evidence to prove appellant's guilt and to justify his dismissal

The following paragraphs from the affidavit of the Chairman of the Public Service Commission attached to the respondent's notice of opposition in the court a quo captures important aspects of the relevant evidence. They read:

“9.1 The findings of the Disciplinary Committee were based on facts and his response to the charge. He did not dispute, during the hearing, that he authored the letter. In his written response, he unequivocally admitted to the charge and apologized for tarnishing the image of the Public Service. He submitted that the fake pay-slip had been done by “tricksters” who had also conned him. He also admitted that he was in financial problems. It is quite apparent that appellant submitted the fake pay-slip to obtain a loan hence the apology. He does not mention why the so-called 'tricksters' would have submitted a fake pay-slip on his behalf to further his own interests. The committee relied on this evidence in their findings. The findings were proper and grounded on facts. His offer to repay the loan using another arrangement other than the stop order facility provides corroborative evidence.

9.2 Appellant's contention that it was not established that he was dishonest in the course of employment is immaterial because the fake document was produced at his workplace. He was a Payroll Clerk responsible for the production of pay-slips. He was expected to discharge his duties honestly. The Salary Service Bureau lost credibility due to his dishonest conduct and this tarnished the image of the Public Service. The evidence clearly established that he was dishonest in the course of his duties which constitutes an act of misconduct in terms of the Public Service Regulations.”…,.

A large part of the appellant's contention is that the alleged misconduct was of no consequence to his employer, and his employer had no reason or justification to involve itself in his dealings with the moneylender.

The appellant is, unfortunately, ill-advised in holding this view.

The appellant was charged under section 13(d) of the First Schedule of the Public Service Regulations which renders the following an act of misconduct:

“…, falsifying or attempting to falsify any document with fraudulent intent or uttering a forged document…,.”

The appellant failed to explain the origins of the fake pay-slip and the employer reasonably and understandably deduced it was the appellant who had it made. The pay-slip purports to have originated from the employer. When presented, the pay-slip gave the impression that it was conveying facts as held to be true by the employer. In essence, the appellant was including his employer in his fraudulent activity, for it was on the strength of the “employer's assurance”, being the fake pay-slip, that the loan was issued.

The appellant, therefore, cannot successfully contend that his activities outside of employment had nothing to do with his employer in this regard.

As to the evidence that ought to have been considered by the disciplinary committee, the appellant was given the opportunity to present his argument and substantiate it, before both the Committee and the court a quo. At those junctures, he could have called a representative of Dollartech Finance to present the information he believed vital. It was not the respondents' duty to argue his case for him.

This renders the appellant's second, third and fourth grounds of appeal meritless.

These grounds attack the judgment of the court a quo on the bases that the behavior complained of, even going by the employer's version, did not constitute misconduct; that the person who determined the matter erred by finding that the pay advice, which was not produced in evidence, was falsified; that the disciplinary committee ought to have heard the evidence of the moneylender and that the disciplinary committee did not appreciate that it was not part of the Department's function to assist money lenders in recovering their money.

The conviction was thus warranted.

The appellant claimed that his penalty was too severe, to the extent of lacking reasonableness.

It is settled that the courts do not act to usurp the discretion of the employer in deciding whether or not to terminate the employees' contract. This discretion can only be interfered with where it is shown that the employer improperly exercised its discretion. A plethora of cases have been decided in this court in this regard.

See, among others, Celsys Ltd v Ndeleziwa SC49-15; NEC Catering Industry v Kundeya & Ors SC35-16; ZB Financial Holdings v Manyarare SC07-12.

More specifically, in the case of County Fair Foods (Pvt) Ltd v CLMA & Ors (199) 201 lJ 1701 (LAC), the court stated as follows:

“It lies, in the first place, within the province of the employer to set the standard of conduct to be observed by its employees and to determine the situation with which, non-compliance will be visited; interference therewith is only…, in the case of unreasonableness and unfairness.”

The appellant has failed, in his grounds of appeal, to present valid justification for the granting of the relief that he seeks.

The appellant persisted in the view that whatever he engaged in after his work hours should not be a concern to his employer, whether it be morally reprehensible or not. He went to the extent of highlighting other acts of dishonesty that an employee could engage in in his free time and which acts, the employer, in his view, should not concern itself with.

The appellant fails to realise that an employee's conduct can impact negatively on the impression that the general public develops of his employer. The appellant therefore portrays a lack of honesty in his dealings and the respondent, in its heads of argument to the court a quo, rightly posits the rhetorical question; “why should they be made to continue to employ such a person?”

In casu, the respondent expressed its concerns in an affidavit deposed to by its Chairman wherein he stated:

“A pay-slip is an official record of how the earnings and deductions for a particular month have been applied. It remains a permanent record in the payroll system. A member is expected to produce an official and authentic document of his earnings. Faking a pay-slip impacts negatively on the respondent as it results in loss of public confidence in the Public Service payroll system.”

It is not unreasonable for an employer to expect an employee to conduct himself with honesty at all times. The employer stated that the appellant was the Senior Payroll Clerk and in that capacity would be responsible for creating pay-slips. The company expected him to carry out his duties honestly, and was of the view that as a result of the appellant's actions it lost credibility and its image was tarnished.

It cannot, in the circumstances, be said that the employer exercised its discretion unreasonably. There is therefore no merit in the appellant's fifth ground of appeal which attacks the penalty imposed on the appellant as being grossly excessive on the basis that the misconduct complained of, if anything, is of an academic nature as it did not take place in the course of employment and the employer was not injured or prejudiced in any way.

I must observe that a tendency is developing of serving members of the Zimbabwe Republic Police, who, when properly convicted and sentenced under the Police Act, rush to the High Court, ostensibly seeking a review of the decisions made in terms of that Act. 

In the majority of the cases now flooding the courts, these applications for review are meant to delay and frustrate the execution of orders made under the Police Act [Chapter 11:10]. This application is not urgent at all. It is made in bad faith.

This is an application for review of the decision of the first respondent (the trial officer) to convict the applicant on two (2) Counts for allegedly contravening paragraph 35 of the Schedule to the Police Act [Chapter 11:10] for “acting in an unbecoming or disorderly manner or in any manner prejudicial to good order or discipline or reasonably likely to bring discredit to the Police Force.”

The applicant is also aggrieved by the decision of the Commissioner General of Police, on appeal, wherein he upheld the decision of the trial officer.

The grounds upon which the applicant seeks this court to review the first and second respondents' decisions are those which delve into the merits of the case. The applicant is complaining about the non-production of exhibits, admission of evidence from witnesses without proof beyond a reasonable doubt, admission of contradictory evidence, the calling of some witnesses and leaving out some other witnesses that the applicant considered were key witnesses in the matter. The applicant is also complaining of the fact that the trial officer threw out his defence without merit.

All these reasons, despite the fact that they are not concise, they relate to the merits of the matter and can therefore not be the subject matter of a review but an appeal.

On appeal, the Commissioner could have interfered with the decision of the trial officer, if he was of the view that the factual findings of the trial officer defied logic.

The assessment of evidence remains the dominion of the trial court for the simple reason that the trial officer lives through the drama of the case and is better placed to determine the factual issues as well as issues of credibility.

The Commissioner General of Police, on appeal, could only have interfered with the findings of the trial officer if he was satisfied that his (the trial officer) findings defied reason and common sense. There has to be something grossly irregular in the proceedings to warrant such interference. This court has wide review powers given to it in terms of section 26 and 27 of the High Court Act [Chapter 7:06].

Section 27 of the High Court Act [Chapter 7:06] provides thus:-

“(1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be –

(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned.

(b) Interest in the cause, bias, malice, or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be.

(c) Gross irregularity in the proceedings.

The grounds for review, as stated in the application, are not the ones envisaged by section 27 of the High Court Act [Chapter 7:06].

If the applicant wants a revisit into the merits of the case, the credibility or otherwise of the witnesses, the assessment of the probative value of the evidence that was presented before the tribunal, then his remedy is by way of appeal not a review….,.

On review, it is not enough to simply contend that the decision was wrong, special grounds must exist before a court will enquire into the merits. Refer to Makoni v Liquor Licencing Board 174 (2) RLR 1; Quintas v Controller of Customs and Excise 1976 (1) RLR 208; and Ministry of Labour Manpower Planning and Social Welfare and Others v Pen Transport Pvt Ltd SC45-89. 

No such special grounds have been exhibited in this application warranting an interference with the respondents' decision on the merits. I accordingly find no basis upon which I can exercise my review powers in this case.

Surely, an indefinite suspension without a hearing cannot be lawful….,. In my view, the power of suspension should be exercised in accordance with administrative justice. The delay in bringing the applicants before a Disciplinary Committee offends against the element of administrative justice requiring prompt, efficient and reasonable conduct.

In this case, the respondent conducted a disciplinary hearing against the first appellant for charges preferred against him.

The disciplinary hearing proceeded in the absence of the first appellant despite his being properly served. At this disciplinary hearing, the decision to suspend the first appellant was “confirmed”.

It is for the Church to dismiss the appellants and not for this court to do so in its stead.

The respondent is enjoined to take steps to terminate its relationship with a member who denounces its authority, and the Civil Court will give due deference to that decision in the absence of arbitrariness, bias, or unreasonableness….,.

What was placed before the court was, in fact, a process upholding the first appellant's suspension. Nothing shows that the appellants were dismissed, and, therefore, ceased to be members of the respondent. Suspension, cannot, by any stretch of the imagination, be a method of terminating a relationship between parties.

The first appellant therefore remains suspended and not dismissed from the respondent.

A Church cannot institute disciplinary proceedings against a person who is no longer its member or office-bearer.

The appellant was employed by the respondent as a Senior Organising Secretary with effect from 19 January to November 2009. On 12 October 2009, the respondent suspended him without pay following allegations of misconduct.

Disciplinary proceedings were instituted against the appellant commencing 30 October 2009. The proceedings were in terms of the National Employment Code of Conduct Regulations, S.I.15 of 2006. The Hearing Officer was however unable to determine the matter one way or the other. Consequently, on 3 November 2009 he referred the matter to the employer for final determination saying that:

“…, as the Hearing Officer, I am unable to make a ruling, as such, I forward both submissions and my summary to the employer for his Final decision. The accused employee, Mr Muparaganda, is therefore advised to appear before the General Secretary, personally, or with a representative of his choice at 1200hrs at GWUZ Head Office, Park Town, Harare.”

Following the Hearing Officer's failure to reach a verdict, the General Secretary wrote to the appellant lifting the suspension without pay. His letter to the appellant reads in part:

“Your suspension without pay has been lifted and you can get your pay if you go to the Bank now.”

The appellant subsequently appeared before the General Secretary for a disciplinary hearing in terms of the Hearing Officer's reference. The General Secretary delivered his verdict on 30 October 2009 dismissing the appellant from employment.

Aggrieved by the dismissal, the appellant appealed to the Ministry which, in turn, referred the matter for arbitration. The arbitrator made an award nullifying the prior proceedings as unprocedural and fatally defective. In particular, he held that the referral by the Hearing Officer to the General Secretary for a final determination a nullity for want of compliance with the rules saying:

“There was no reason, whatever, for the Hearing Officer to have proceeded to refer the matter to the General Secretary. The Hearing Officer was obliged to make a decision.”

Having set aside the proceedings before the Hearing Officer and the General Secretary, the arbitrator proceeded to hear the matter de novo. In his verdict, the arbitrator found the appellant guilty of a dismissible act of misconduct for late banking of Union dues in contravention of section 17.17.1 of the respondent's Constitution. He accordingly made the following award:

“1. Claimant's dismissal was substantially unfair.

2. Claimant's dismissal was procedurally unfair.

3. I therefore order the claimant be paid his salary and benefits from the date of suspension to the date of the award, 26 April 2013. Such payment should be made within 14 days of receipt of this award.

4. It is further ordered that claimant's contract of employment is terminated with effect from 26 April 2013.

5. If parties fail to agree on the calculations, they can approach the arbitrator for quantification.”

Dissatisfied by the arbitral award, the appellant appealed to the Labour Court. The appeal raised only two (2) issues for determination:

1. Whether the defendant was entitled to a salary from the date of suspension when in fact his contract was terminated?

2. Was the respondent's contract lawfully terminated?

The appellant was partially successful. In respect of issue number one, the court a quo held that the respondent was not entitled to his salary and benefits because he had been placed on suspension without salary and benefits. She reasoned that when the prior proceedings were nullified by the arbitrator the respondent reverted to his status as an employee on suspension without pay.

As regards the second issue, the court a quo upheld and sustained the arbitrator's award to the effect that the lawful date of dismissal was the 26^th of April 2013.

Despite the fact that the appellant had been partially successful, the learned judge in the court a quo, in error, proceeded to make an order as if the appellant had been wholly unsuccessful. The order reads:

“The appeal therefore partially succeeds and accordingly the following order is made.

1. The appeal be and is hereby upheld.

2. The arbitral award dated 26 April 2013 is hereby upheld.

3. No order as to costs.”

In her ruling on the application for leave to appeal to this Court, the learned judge properly acknowledged that she erred in making an order upholding the entire appeal when the appellant had only been partially successful.

On the appeal before this Court, the only issue was whether the respondent was entitled to his salary and benefits from the date of suspension to the date of lawful dismissal, that is to say, from 12 October to 26 April 2013.

In holding that the respondent was not entitled to his salary, the learned judge reasoned that the nullification of the entire proceedings by the arbitrator had also nullified the upliftment of the respondent's suspension by the General Secretary. This is what the learned judge had to say…,:

“However, the proceedings uplifting the suspension, having culminated into an unprocedurally unfair dismissal were set aside. To my mind, everything that transpired was set aside - including the upliftment of the suspension. When the arbitrator set aside the dismissal, the respondent reverted to his position on suspension without salary and benefits. See Bank of Zimbabwe v Chikomwe and 211 Others SC77-00. I do not agree with the respondent that he was entitled to his salary and benefits as he was clearly on suspension without salary and benefits. This ground of appeal has merit and therefore succeeds.”

With respect, it appears that the learned judge confused administrative action with disciplinary proceedings done by the employer or management. When the General Secretary lifted the suspension he was exercising his administrative function and not disciplinary action against the respondent. Disciplinary action was only instituted when both the Hearing Officer and the General Secretary took quasi-judicial action against the respondent.

It is the quasi-judicial proceedings that were tainted with irregularity and not the administrative action of lifting the suspension. The arbitrator could not have nullified the upliftment of the suspension because this was never an issue placed before him, and, in any case, it was not tainted with irregularity. It is not in dispute that in terms of section 10.2.2 of the appellant's Constitution, the General Secretary has the discretionary power to suspend any employee of the Union with or without pay.

The General Secretary took quasi-judicial action against the respondent.

There having been no irregularity in the manner in which he uplifted the suspension, the upliftment of the suspension was perfectly lawful and binding. An employer who elects to pay an employee during the course of disciplinary proceedings voluntarily assumes an obligation from which he cannot unilaterally wriggle out without first re-suspending the employee without pay.

Although it was within the appellant's discretion to re-suspend the respondent without pay, it did not exercise that option until the contract was lawfully terminated on 26 April 2013. For that reason, the judgment of the court a quo, upholding the arbitral award of 26 April 2013, cannot be faulted.

While it is correct, as stated in the case of Bank of Zimbabwe v Chikomwe and 211 Others SC77-00, that when disciplinary proceedings are set aside for irregularity, parties revert to the status quo ante; in this case, the principle was mis-applied because, at the time of the arbitral award, the respondent's status had changed from that of an employee on suspension without pay to that of an employee on suspension with pay. Thus, the respondent could not have reverted to being an employee on suspension without pay because that status no longer existed.

That being the case the appeal can only fail. There being no reason for departing from the general rule that costs follow the result.

It is accordingly ordered that the appeal be and is hereby dismissed with costs.

The learned author, C H MUCHECHE, in his book, A Practical Guide to Labour Law, Conciliation, Mediation & Arbitration in Zimbabwe (2^nd ed African Dominion Publications, Harare,) opines that resort to the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 (National Model Code) is permissible if there is no applicable domestic Code of Conduct.

Quoting PROFESSOR MADHUKU, the learned author states as follows:

“According to Professor Lovemore Madhuku, both section 12B(2) of the Labour Act and section 5(b) of S.I.15 of 2006 compel the use of S.I. 15 of 2006 in the absence of a registered Code of Conduct. The expression, 'in the absence of', must be interpreted purposefully. The mere existence of a registered Code of Conduct is not sufficient to oust resort to S.I.15 of 2006. There must be a registered Code of Conduct applicable to the case in question. Where there is a registered Code of Conduct which is inapplicable to the circumstances of the case, there is 'the absence of an employment code' for purposes of section 12B of the Labour Act and section 5(b) of SI 15 of 2006…,. One cannot apply a metal straight jacket and conclude that in every situation where an employment Code of Conduct exists, it automatically follows that such a Code of Conduct should solely be used to the exclusion of the National Code of Conduct.”

This is the sort of case which the learned author had in mind when he made the above remarks….,.

The Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 is the model code envisaged in section 12B(2)(b) of the Labour Act. Ordinarily, it is meant to provide a platform for settling labour disputes where there is no internal or domestic disciplinary Code of Conduct at the workplace.

Considering that it is undesirable for parties to a dispute to be left without an appropriate mechanism of resolving their labour disputes, like PROFESSOR MADHUKU and C H MUCHECHE, I consider that section 12B(2)(b) of the Labour Act should be given a broad, purposeful interpretation to include circumstances where an existing internal Code of Conduct or dispute resolution mechanism cannot, for justifiable reasons apply to a particular case. It therefore appears to me that the legislator intended the model Code of Conduct to be a fall-back labour dispute resolution mechanism where it is impossible or inappropriate, for good reason, to apply any other dispute resolution mode. To that extent it is a universal disciplinary Code of Conduct fitting all circumstances according to the exigencies of each case within the confines of the Labour Act.