This
is an appeal against the decision of the Labour Court setting aside
disciplinary proceedings conducted by a committee constituted by the
respondents and directing that the matter be heard de novo
before a different committee within thirty (30) days or such extended period as
may, on good cause shown, be granted, failing which the appellant was to be
reinstated without loss of salary and benefits.
The
facts of this case are as follows.
The
appellant was employed by the respondent Ministry as a Public Prosecutor,
stationed at Chinhoyi. Following a police trap, the appellant was found
with a marked US$200= note which had allegedly been handed to him by certain
accused persons so that he could withdraw a criminal charge levelled against
them. Following this development, the appellant was suspended from duty
from 20 July 2010 in terms of the Public Service Regulations, Statutory
Instrument 1/2000 (“the Regulations”). The suspension was for a period of
three (3) months, that is, until 20 October 2010. By 20 October 2010, the
allegation of misconduct levelled against the appellant had not been heard or
determined. On 30 November 2010, well after the initial period of
suspension had expired, the Public Service Commission, purporting to act in
terms of section 49(3)(b)(ii) of the Public Service Regulations, S.I.1 of 2000,
extended the order of suspension for a further period of three months but back
dated the commencement of such extension to
21 October 2010. This decision was communicated to the appellant
on 8 December 2010. The disciplinary hearing eventually took place on
13 January 2011 following which the appellant was found guilty of soliciting
for a bribe, and getting a bribe, and dismissed from the Public Service.
Dissatisfied
with the decision of the disciplinary committee the appellant filed an
application for review.
In
his submissions before the court a quo, the appellant
raised three issues.
(i)
The first was that at the time the hearing took place the suspension order had
lapsed and the attempt by the Public Service Commission to extend the order
after it had expired did not validate such order. Therefore, the
proceedings that followed the irregular extension were a nullity;
(ii)
The second issue was that he had been denied the right to legal representation
during the disciplinary hearing; and
(iii)
Thirdly, that continuing with the proceedings in the absence of the appellant's
counsel constituted bias.
The
appellant accordingly urged the court to set aside the proceedings and not
remit the matter.
In
very terse heads of argument filed in the court a quo,
the respondents denied that the proceedings were invalid or that the
appellant's rights to legal representation had been violated. The
respondents also denied the suggestion that the disciplinary committee had
exhibited bias towards the appellant.
In
its judgment, the court a quo noted, with
some concern, the lackadaisical attitude on the part of law officers from the
Attorney General in general and their failure, in this particular case, to file
meaningful heads of argument dealing with the issues raised by the appellant in
his heads of argument. The court therefore found that there had been no
explanation by the respondents on how “something that was already dead was
resuscitated.” The court also found that the full facts on the issue of
legal representation had not been provided and that it was therefore unclear
whether the appellant had been at fault. Lastly, the court found the claim
of bias to have been “misplaced”, based, as it was, on the allegation that the
disciplinary committee had denied the appellant his request for a postponement
so that his counsel could be in attendance. The court, whilst not making a
definitive finding on the propriety or otherwise of the disciplinary
proceedings, was of the view that the appellant could not avoid his dues
because of the error of other employees, and relying on the decision of this
court in Air Zimbabwe (Pvt) Ltd v Chiku Mnensa & Anor SC89-04, ordered that the
proceedings (not just the suspension) be set aside and that a trial de novo takes place before a different committee
constituted by the respondents.
It
is against that order that the appellant now appeals to this Court.
Although
in his notice of appeal, the appellant raised three grounds of appeal, in his
heads of argument and oral submissions before us, counsel for the appellant
confined himself to two issues. These are;
(i)
Firstly, whether, after the appellant's suspension had lapsed, it was competent
for the respondents to continue with the disciplinary proceedings; and
(ii)
Secondly, whether, in relying on the decision in Air Zimbabwe
(Pvt) Ltd v Chiku Mnensa & Anor SC89-04 and thereafter remitting the matter
for a re-hearing, the court a quo erred in
granting relief that had not been sought by either party and in respect of
which neither party had been heard.
Accordingly,
this appeal will be confined to these two issues.
I
turn to deal, firstly, with the order of suspension and whether the
disciplinary proceedings that followed were a nullity.
The
relevant provisions are to be found in sections 44, 45, 46, 48 and 49 of the
Public Service Regulations, S.I.1 of 2000. The sections provide, in the
relevant portions, as follows:-
“44. Procedure before and
immediately following allegation of misconduct
(1)
Where a member is suspected of misconduct, the disciplinary authority shall
conduct or cause to be conducted such investigations as may be necessary.
(2)
If, on completion of the investigations referred to in subsection (1), it is
found that an allegation of misconduct should be preferred against the member,
the disciplinary authority shall, within a reasonable time after the completion
of the investigation -
(a)
Inform the member, in writing, of the nature of the allegation against him, and
call upon him to submit a written reply to the allegation within fourteen days;
(b)
Where possible, furnish to the member copies of any material documentary
evidence, if any, relating to the allegation of misconduct, or afford the
member an opportunity of having sight of any such evidence.
(3)…,.
(4)…,.
(5)…,.
45.
Hearings before disciplinary committee
(1)
Within seven days of receiving the documents referred to in paragraph (d) of subsection (3) or paragraph (d) of subsection (4) of section 44, the disciplinary
committee shall give not less than seven days' notice to the member concerned
of the time, date and place of the hearing of the allegation of misconduct
against him.
(2)
The hearing shall be conducted without the need to observe the rules of
procedure and evidence ordinarily applicable in criminal or civil proceedings,
provided, however, that the member concerned is afforded the opportunity to
respond to every allegation of misconduct and that substantial justice is done.
(3)…,.
(4)…,.
(5)…,.
(6)
At the conclusion of the hearing, or as soon thereafter as possible, the Chairman
of the disciplinary committee shall submit to the disciplinary authority -
(a)
A notification in writing of its findings and recommendations thereon,
including a recommendation as to the penalty to be imposed upon the member
where it finds the member guilty of misconduct; and
(b)
The record of the evidence led at the hearing.
46.
Determination of allegation of misconduct
(1)
On receiving the documents referred to in subsection (6) of section 45, the
disciplinary authority may -
(a)…,.
(b)
Proceed to determine whether or not the member concerned is guilty of
misconduct as alleged.
(2)…,.
(3)
Where the disciplinary authority determines that a member is guilty of
misconduct, the disciplinary authority shall -
(a)
Proceed to determine the penalty to be imposed upon the member; and
(b)
Notify the member…, of its determination and the penalty imposed upon the
member; and
(c)
Take such consequential measures as may be necessary in the circumstances.
(4)…,.
47.
Member convicted of a criminal offence
...
48.
Imposition of suspension order
(1)
A disciplinary authority may, at any time, by written notice, suspend from
service a member who is suspected of misconduct or is subject to criminal
investigation or prosecution if his continued attendance at work or continued
performance of his duties or service, as the case may be, would –
(a)
Be conducive to unbecoming or indecorous behaviour or further instances of
misconduct; or
(b)
Seriously impair the proper administration of functioning of the Ministry or
department concerned; or
(c)
Occasion prejudice to any moneys or property likely to be handled by the member
in the course of his work; or
(d)
Enable the member to hinder or interfere with any investigation or evidence
relating to any alleged misconduct; or
(e)
Be undesirable in the public interest or likely to lead to a loss of public
confidence in the Public Service.
(2)
Where a suspension order is imposed upon a member -
(a)
The order shall specify the reasons for such order, the period of suspension,
and, where possible, the nature of the allegations against the member;
(b)
Disciplinary procedures shall be instituted forthwith in terms of section 44 if
they have not already been instituted.
(3)…,.
(4)…,.
49.
Effect and cancellation of suspension order
(1)
Where a member is suspended from service, he shall -
(a)
Not attend at his place of work or carry out any duty unless directed to do so
by the disciplinary authority, in which case he shall carry out such duties as
directed.
(b)
Not be entitled to his salary in respect of the period of suspension unless
ordered to carry out other duties, in which case he shall continue to receive
his salary.
(2)…,.
(3)
A suspension order -
(a)
May be cancelled at any time by the disciplinary authority;
(b)
Shall be deemed to be cancelled -
(i)
Where the member is found not guilty of misconduct; or
(ii)
After three months from the date of its imposition, if the allegations has not
been determined, unless the Commission directs that the order remain in force
for such period as it shall specify by written notice to the member.
(4)…,.”
It
is apparent, from the above provisions, that the law has prescribed different
procedures for preferring charges and suspension from duty. Whilst an
order of suspension can only be imposed on a member who is suspected of having
committed a misconduct, it is not a requirement that such suspension must
be imposed in all cases. Indeed, section 48 of the Public Service
Regulations, S.I.1 of 2000 itself provides that the disciplinary committee may,
not must, suspend a member from service. Even then, the powers to suspend
are not without limitation. A suspension is only warranted in a situation
where the continued presence at the workplace of a member is undesirable for
the reasons given in section 48(1) of the Public Service Regulations, S.I.1
of 2000. The corollary to this is that it is quite competent for a
disciplinary authority to prefer charges of misconduct against a member without
simultaneously suspending such member from work. In other words, a charge
of misconduct stands on its own although a suspension may be imposed taking
into account the circumstances surrounding the allegation of misconduct.
In
the circumstances, the submission by counsel for the appellant that once a
suspension falls away the entire proceedings also fall away cannot possibly be
correct.
Section
49(3) of the Public Service Regulations, S.I.1 of 2000 must therefore be
understood in this light.
An
order of suspension in the ordinary course results in the member not being
entitled to his salary and prevented from attending at his workplace. It
is an order that can have dire implications for the employee. It is for
this reason that section 49 of the Public Service Regulations, S.I.1 of 2000
obliges the disciplinary authority to determine any allegations of misconduct
levelled against a suspended employee within three (3) months from the date of
its imposition, and, where that does not happen, the order of suspension
automatically falls away unless a directive is given by the Commission that it
be extended for a further specified period. When the order of suspension
falls away, only the suspension falls away, and not the charge that may have
given rise to the order of suspension. Clearly, the intention of Parliament was
not to invalidate the charge giving rise to the suspension but rather the
suspension itself. Had the intention been otherwise, section 49(3) of the
Public Service Regulations, S.I.1 of 2000 would not have referred to a
suspension order only but the entire disciplinary proceedings.
It
follows from the above that the submission by counsel for the appellant that
the proceedings in their entirety were deemed to have been cancelled after a
period of three (3) months from the date of suspension cannot be correct. To
the contrary, I am inclined to accept the submission by the respondents that a
suspension is not a prerequisite to the holding of disciplinary proceedings and
that a disciplinary hearing does not have to take place during the period of
suspension. I further accept the respondents' submission that the fact
that a suspension has expired cannot prevent the holding of disciplinary
proceedings.
In
this case, it is clear that the suspension had expired and that the attempt to
extend it by the Commission was null and void as it was executed well after the
initial order of suspension had terminated. At that stage the suspension had
been terminated by operation of law. There was therefore no suspension
that the Commission could have extended on 30 November 2010.
The
fact that the Public Service Regulations, S.I.1 of 2000 do not provide any time
limits within which an allegation of misconduct must be determined does not
mean the State has an unlimited timeframe to conclude disciplinary
hearings. Any right the State would have to prefer charges of misconduct
is subject to section 69 of the new Constitution which provides that every
person has the right to a fair, speedy and public hearing within a reasonable
time.
The
case of Mugwebi v Seed Co. Ltd & Anor 2000
(1) ZLR 93 (S), heavily relied upon by counsel for the appellant, is clearly not applicable
to the facts of this case. In the Mugwebi v Seed Co. Ltd & Anor
2000 (1) ZLR 93 (S) case it was held that the suspension of the employee and
the subsequent proceedings were null and void. There were two reasons for
that finding. In the first instance, the employee had been suspended by a Marketing
Manager and not a Designated Officer, in clear breach of the provisions of the
Code of Conduct which stipulated that only the Designated Officer had the power
to suspend an employee. Secondly, in the event that the offence warranted
dismissal, the Designated Officer was required to suspend the employee with or
without pay, pending his decision on the matter. In other words, once the Designated
Officer preferred a charge warranting dismissal, if proved, he had no
discretion but to suspend the employee and thereafter to give a decision within
fourteen (14) days of receipt of such case.
The
facts of this case are different.
The
Public Service Regulations, S.I.1 of 2000 clearly empower the disciplinary
authority to not only prefer charges of misconduct but also decide whether a
suspension order should be made - the two being separate, though related,
exercises.
The
order by the court a quo, that the entire
proceedings be set aside, was therefore irregular.
It
was the suspension that was in issue and the court should have confined itself
to setting aside only the suspension. It set aside the disciplinary
proceedings in circumstances where it was not empowered to do so. In the
exercise of the review powers of this Court, the decision of the court a quo must be corrected to make it clear that it was the
order of suspension which terminated by operation of section 49(3) of the Public
Service Regulations, S.I.1 of 2000.
The
second issue that arises in this appeal is whether, in the light of the above
finding, the order remitting the matter for a rehearing should stand.
In
this regard, it is important to note that the proceedings continued at the
conclusion of which the appellant was found guilty of misconduct and was
dismissed. Having found, as this Court has done, that the disciplinary
authority had the power to continue hearing the matter notwithstanding the fact
that the suspension had terminated, and the decision on the merits not being an
issue before this Court, it follows that, in these circumstances, the order
remitting the matter for a hearing de novo was improper
and must also be set aside. The question whether the court a quo should have heard the parties on the issue of
remittal consequently no longer arises….,.
In
the result, the following order is made;
1.
The judgment of the court a quo is set aside
and in its place the following is substituted:-
“1.
The order of suspension imposed by the Commission on 30 November 2010 is hereby
set aside.
2.
For the avoidance of doubt, the order of suspension imposed on the applicant on
20 July 2010 terminated on 20 October 2010.
3.
The application for review is otherwise dismissed with costs.”
