GARWE JA: This is an appeal against a judgment of the Labour Court dismissing with costs
an application for the review of the decision of the respondent to dismiss the
appellant from employment.
The facts of this case are
these. The appellant was employed by the Zimbabwe Allied Banking Group
(“the respondent bank”) as Head of the Compliance Section. In this
capacity she reported directly to the Chief Executive Officer. In
November 2007, the Chief Executive Officer of the respondent bank advised
senior management of the bank of the introduction of a new reporting
structure. In terms of the new structure the appellant's position was
renamed General Manager, Compliance and she was to report to the Head of the
Corporate and Legal Services Division. The memorandum made it clear that
the new structure would not affect the grade, salary or benefits of any
incumbent.
The appellant was unhappy that
she now had to report through another Head of Department and took the view that
her conditions had been unilaterally changed by the respondent bank. She
sought clarification from the Chief Executive Officer of the respondent bank
who responded clarifying the position. She was still not satisfied with
the explanation given and insisted on using the old reporting structure.
She made representations to the Board of Directors of the respondent
bank. The Chief Executive Officer again wrote to her directing her to follow
the new structure pending any decision to be taken by the Board. The
appellant continued to question the new structure and made further
representations to the Board of Directors of the respondent bank. On 6
June 2008, the appellant was suspended from work without salary or benefits in
terms of the Labour (National Employment Code of Conduct) Regulations,
Statutory Instrument 15/2006 and charged with two offences namely, any act,
conduct or omission inconsistent with the fulfilment of the express or implied
conditions of a contract and wilful disobedience to a lawful order given by the
employer. A disciplinary hearing was thereafter conducted on 20 June
2008. The matter was postponed so that the disciplinary committee could
consider the verdict. The appellant did not attend further hearings of
the committee.
On or about 30 June 2008, the appellant filed an urgent
application in which she sought an order setting aside her suspension and
reinstating her to her former position without loss of salary and
benefits. The basis of the application was that since the respondent had
failed to conclude the matter within the period of fourteen (14) days
prescribed in the Regulations, the proceedings had become a nullity.
Additionally the appellant averred that the suspension was unlawful as no act
of misconduct had been committed and the circumstances merely indicated the
existence of a misunderstanding. Notwithstanding the filing of the
application, the disciplinary committee determined on 18 July 2008 that the
appellant be dismissed. On 14 August 2008 the Labour Court granted a
default judgment in favour of the appellant in terms of which the suspension
was set aside and re-instatement was ordered. In October 2008 the
appellant then filed an application for the review of the decision to dismiss
her. The application did not find favour with the Labour Court which
proceeded to dismiss the application with costs. It is that decision
which is the subject of the present appeal.
In her notice of appeal, the appellant has attacked the
decision of the Labour Court on several grounds. Counsel on both sides
are however agreed that there are three main issues that fall for determination
before this Court. The first is whether the court a quo
misdirected itself in failing to find that the chairman of the disciplinary
committee was biased. The second is whether the court a quo was
correct in finding that the first charge in respect of which the appellant was
convicted had been proved. The third is what effect, if any, the order of
the Labour Court setting aside the suspension of the appellant and ordering her
reinstatement had on the disciplinary proceedings which resulted in the
dismissal of the appellant from employment. I consider it prudent to deal
with the last issue first.
In his submissions before this Court, MrMpofu
urged us to find that the continuation of the disciplinary proceedings was
invalid in the light of the application which had been filed with the Labour
Court and pursuant to which an order was made setting aside the suspension and
ordering re-instatement of the appellant. He further submitted that since
the judgment of the Labour Court setting aside the suspension and ordering
re-instatement has not been appealed against or otherwise set aside, the decision
of the respondent to dismiss the appellant, predicated as it was on a
suspension that has been set aside, cannot stand.
Mr Mehta, for the respondent, was asked to address
the court on the implications of the order of the Labour Court setting aside
the suspension and ordering re-instatement. Mr Mehta had no
useful submissions to make in this regard. He advised the court that he
had made attempts to get details on the order granted by the Labour Court but
had failed to get any. He accepted that the Labour Court had indeed set
aside the suspension of the appellant and ordered her re-instatement and that
the order remains extant.
Section 6 of the Labour (National Employment Code of
Conduct) Regulations, 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 s 4 of the Regulations.
(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 s 6 of the Regulations
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 s 6(2) of the Regulations. 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, 522G-523 A-B and Posts and Telecommunications Corporation
v Zvenyika Chizema SC 108/04 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.
Before concluding, it appears to me desirable that I
comment on the order of 14 August 2008 granted by the Labour Court setting
aside the suspension and ordering reinstatement. That order, it is common
cause, was granted in default. In terms of s 92 (c)(i) of the Labour Act,
a default judgment can, on application, be rescinded. No consideration
appears to have been given to the filing of such an application. Both the
respondent and the court a quo appear to have been oblivious to the
existence of such an order and proceeded as if none existed.
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.
(2) The decision of the disciplinary committee of the respondent
of 18 July 2008 terminating the employment of the applicant is set
aside.”
CHIDYAUSIKU CJ: I
agree
OMERJEE AJA: I agree
Gill, Godlonton & Gerrans, appellant's legal
practitioners
Chihambakwe, Mutizwa & Partners,
respondent's legal practitioners
