ZIYAMBI
JA:
The
appellant was employed by the respondent as an Accounting Officer.
On
22 May 2009 he was handed a letter suspending him from his employment
on charges of habitual and substantial neglect of duties in terms of
section 4(g) of the Labour (National Employment Code of Conduct)
Regulations, 2006, (“the Regulations”) and inviting him to attend
a disciplinary hearing on 29 May 2009.
He
was advised in the letter of his right to appear in person or with a
legal representative and was warned that in the event of his non
attendance, the hearing would proceed in his absence and possibly to
his detriment.
That
notwithstanding, the appellant travelled to South Africa on 26 May
2009 without leave of absence and without seeking a postponement of
the hearing.
The
hearing proceeded in his absence on 29 May 2009 and the appellant was
found guilty as charged.
At
the end of August 2009, the appellant returned to Zimbabwe and, by
letter dated 1 September 2009, advised the respondent of his return
and his willingness to assume his duties, fully aware that the
hearing had taken place on 29 May 2009.
The
respondent, in reply, wrote to the appellant on 3 September 2009,
advising him that he had been found guilty as charged and that his
employment had been terminated with effect from 22 May 2009, the date
of suspension.
The
appellant challenged the dismissal before an arbitrator and, on
appeal, the Labour Court. Both courts found that he had been fairly
dismissed.
The
main point taken by Mr Magwaliba
before us, was that the disciplinary proceedings were irregular and
unfair in that the appellant was not heard in person and the
proceedings were not concluded within fourteen (14) days as required
by section 6(2) of the Regulations.
In
our view the appellant, by deliberately absenting himself without
leave from the hearing, waived his right to challenge the conduct of
the disciplinary proceedings. He had the option, which he did not
exercise, of seeking a postponement since he knew that he would not
be available on the date of the hearing. In these circumstances we do
not feel that the failure by the respondent to strictly comply with
the Regulations operated to vitiate the disciplinary proceedings.
Accordingly,
it is our view that the appeal lacks merit and it is hereby dismissed
with costs.
GWAUNZA
JA: I agree
PATEL
JA: I agree
Advocate
Chambers,
appellant's legal practitioners
Advocate
Chambers, respondent's
legal practitioners
