The applicant in this matter was employed by the respondent
as a Branch Manager. On 11 March 2011, he received a letter of final warning
from a Senior Branch Manager (Mrs. Maisiri) arising from an allegation of
dishonesty pertaining to an altered order for fuel. Subsequently, at 15.35 p.m.
on 5 April 2011, he was given notice to attend a disciplinary hearing to be
held on 8 April 2011 at 10.00 a.m. in relation to the same matter. The notice
was written by the General Branch Manager (Mr. Goddard) who explained that the
hearing was necessitated by “a conflict in the facts provided” to him.
On the date of the hearing, Mr. Goddard presided over the
proceedings.
Thereafter, the applicant was found guilty on the
allegations levelled against him and consequently dismissed.
The applicant then filed an application for review of the
disciplinary proceedings before the Labour Court in Case No. LC/REV/H/36/11 (It
is not clear from the papers why he did not appeal against his dismissal). The grounds for review were that:
(i) He was given inadequate notice of the hearing;
(ii) That Mr. Goddard was both the complainant and
adjudicator;
(iii) That the minute taker was a junior; and
(iv) That he was punished twice for the same offence.
The Labour Court considered and rejected all of these
grounds as being without merit and dismissed the application for review with
costs. A subsequent application to the same court for leave to appeal was also
dismissed in October 2012.
The applicant now seeks leave to appeal to this Court on
the following four grounds:
(i) He was punished twice for the same offence;
(ii) He was not given three days to prepare for the
disciplinary hearing;
(iii) The complainant was also the hearing authority;
(iv) The Labour Court ordered costs against him even though
they were not sought by the respondent.
With respect to the first ground, he contends that the
initial letter of warning constituted a final penalty for the offence in
question and was never withdrawn or set aside before the hearing was
instituted.
The respondent's position is as follows.
The letter of warning was not written pursuant to any
hearing and was therefore of no consequence. The Labour Court properly found
that two and a half days' notice was in substantial compliance with the notice
requirement. Mr. Goddard was not the complainant and did not carry out any
investigations. For these reasons, the Labour Court's decision was correct,
and, therefore, this application should be dismissed….,.
MERITS OF
GROUNDS OF APPEAL
Before dealing with the merits of the intended appeal, it
is necessary to consider the nature of the relief sought by the applicant.
The order that he seeks, both before the Labour Court, and
on appeal to this Court, is that his dismissal be set aside and that he be
reinstated without loss of salary or benefits with effect from the date of
dismissal.
In the event that the grounds of review or grounds of
appeal are upheld, the appropriate relief would not be reinstatement but
remittal to the respondent in order to correct all the alleged irregularities
and institute fresh disciplinary proceedings thereafter. In this regard, I
fully agree with counsel for the respondent that the relief sought by the
applicant is irregular and incompetent.
The first ground of appeal is that the applicant was
punished twice for the same offence.
It is clear from the papers, in particular Mr Goddard's
letter dated 4 April 2011, that the initial letter of final warning was
conceived and dispatched without any prior disciplinary proceedings or hearing
having been conducted. In my view, Mrs Maisiri's finding of misconduct, and the
resultant penalty purportedly imposed therefore, were wholly unprocedural and
constituted arrant nullities. That being so, it was not necessary for the
respondent to withdraw the final warning or set it aside before proceeding with
the disciplinary proceedings under review.
It follows that the applicant cannot be said to have been
punished twice for the same offence.
The second ground relates to the failure to give the
applicant three days' notice to prepare for the disciplinary hearing.
In this regard, section 6(4)(a) of the Labour (National Employment Code of Conduct)
Regulations, 2006 (S.I.15 of 2006) entitles an employee to “at least
three working days' notice of the proceedings against him or her and the charge
he or she is facing.”
Does this mean that any notice falling short of three
working days would operate to vitiate any subsequent disciplinary hearing?
While I am loathe to pronounce any general rule on the
point, it seems to me that strict compliance with section 6(4)(a) of the Labour (National Employment Code of Conduct)
Regulations, 2006 (S.I.15 of 2006) might justifiably be excused on the
particular facts of this case. This is because the applicant was fully aware of
the charge he was facing, well before he received the notice convening the
disciplinary hearing, and therefore had ample time to prepare his defence.
Additionally, there is no indication in the papers before me that the applicant
was in any way prejudiced, and, if so, how, in the conduct of his defence by
the failure to afford him three full days' notice of the disciplinary
hearing.
I am therefore satisfied that the court a quo cannot be
faulted for having found substantial compliance with the requirements of section
6(4)(a) of the Labour (National
Employment Code of Conduct) Regulations, 2006 (S.I.15 of 2006) in this
specific instance.
The third ground is based on the argument that the
complainant was also the hearing authority.
On the facts in casu, this argument is entirely untenable.
It is abundantly clear from the papers that Mr Goddard did not initiate or
investigate the complaint against the applicant. What he did, after having
considered the allegations against the applicant and his response thereto, was
to convene and thereafter preside over the disciplinary hearing to determine
the charges of misconduct levelled against him. Although he might have taken an
inquisitorial approach at the hearing, he certainly did not testify against the
applicant.
In my view, there is nothing so unprocedural in this regard
as to warrant any finding of a reviewable irregularity having been committed.
The final ground, pertaining to the award of costs by the
court a quo, is not addressed at all in the applicant's founding and answering
affidavits. Nor was it pursued at the hearing of the application. It must
therefore be deemed to have been abandoned. In any event, even if it were to be
sustained, it could not possibly justify having to interfere with the decision
appealed against.
In the result, I am satisfied that the Labour Court did not
misdirect itself and that its decision was correct in all material respects.
The applicant has failed to establish any prospect of success on appeal.
The application for leave to appeal is
accordingly dismissed with no order as to costs.
