ZIYAMBI JA:
[1] This is
an appeal from a judgment of the Labour Court
setting aside the dismissal of the respondent by the appellant.
THE BACKGROUND
[2] The respondent was employed by the appellant as a
mechanic. On 28 August 2006, the Departmental manager, Mr G Boothway (“Boothway”), received
certain information following which he conducted an investigation into a
possible theft, by the respondent, of a Ford Tractor clutch thrust bearing.
This was in terms of s 6 (1)(b) and (c) of the Triangle Group Code of Conduct which
makes provision for:
“preliminary
investigations by the Departmental Manager to determine whether a
misconduct was committed and if it warrants a disciplinary hearing to address
it, whereafter the same manager would convene
a hearing if seen fit.”1
[3] At the conclusion of the investigations, the
respondent was summoned to a disciplinary hearing on the 6 September 2006, to
answer a charge of theft of the thrust bearing as well as other charges. The
disciplinary committee which heard the matter was chaired by Boothway.
[4] The committee heard evidence from certain
witnesses including one Kenias Labani, a student on attachment with the
appellant. Labani was undergoing training in motor mechanics at the appellant?s tractor shop and
was working with the respondent during the relevant period. His evidence was to
the effect that the respondent on the 28 July 2006, signed a requisition for a
new thrust bearing and instructed him to take the requisition for authorization
to a Mr Macloud despite
the fact that the „authorizer?, one Mr Gwenzi, the foreman, was present.
The reason given to Labani by the respondent was that
he intended to steal the thrust bearing and did not want Gwenzi to know
that he had drawn a new one from stock. Upon receipt of the thrust bearing
Labani took it to the respondent who placed it in his satchel and charged
Labani to tell no one of the incident. The respondent then fitted the old
thrust bearing back onto the tractor. On
28 August 2006 the respondent informed
Labani that enquiries were being made and cautioned him that if questioned he
should say that a new thrust bearing was fitted onto the tractor.
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1 Record p90
[5] The
Ford tractor in question was, following the tip off (received by Boothway),
stopped at the gate and returned to
the workshop for assessment. Upon stripping the tractor it was discovered that
the clutch thrust bearing was second hand.
[6] The disciplinary committee found the respondent
guilty of theft of the thrust bearing, and imposed a penalty of dismissal. It was found by the disciplinary committee
to be aggravating that the respondent held a supervisory position in the
appellant as Charge Hand. Dismissal was
with immediate effect, that is, on 8 September
2006.
[7] With all internal appeals exhausted, the
respondent, undeterred by the lack of success, appealed to the Labour
Court. Ground 3 of the grounds of appeal read:
“An interested
party (Boothway) was the chairman at the first hearing. He should have recused himself since he
was part of the investigating team.”
The remaining grounds of appeal were directed against findings of
fact made by the Disciplinary Committee. I note, in passing, that in none of
the grounds of appeal did the respondent allege his innocence.
[8] The record
does not, as is customary, contain
notes of the hearing. However,
the Labour Court, having heard the
appeal, commented in its judgment as follows:
“It is rather
disappointing that apart from the one on the penalty these grounds were
basically on procedure and on fact. These are normally not grounds for appeal.
The procedural issues are review matters and findings of fact are not
appealable, unless a party alleges that the finding of fact is so outrageous
that it amounts to a misdirection at law. Such an allegation was not made here.
It is high time counsel in these courts understood these differences. This is
not a point applicable in the Labour Court only. It applies to all our courts and Southern African courts too. So it is an area that is not new in our law and lawyers in our
courts should adhere
to the rules. See L.D.V. Van Winseen J.D. Thomas and
A.C.
Cilliers in Herbstein and Van Winseen The Civil Practice of the Superior Courts
in South Africa 2nd Edition at 668.
“where the reason for
wanting to have the judgment set aside is that the court came to a wrong
conclusion on the facts or the law, the appropriate remedy is by way of appeal.
Where, however, the real grievance is against the method of the trial it is
proper to bring the case on review ---.”
The time is fast approaching when cases will be dismissed for the
wrong approach.”2
[9] The above remarks notwithstanding, the court went
on to find that Boothway ought not to have sat on the „committee that heard the case” and allowed the appeal.
It made the following order:
“1. The proceedings are hereby set aside
2.
The matter is referred back to the court of
first hearing for a fresh trial.
3.
The appellant remains on suspension pending the
completion of the retrial.
4.
The retrial shall be completed within 30 days
of this order or such further period as may be granted on good cause shown.
5.
If the respondent fails to complete the hearing
within the specified time the appellant
shall be deemed to have been reinstated without loss of salary and benefits from the date of suspension.
6.
The respondent to pay costs of this hearing.”
Aggrieved by the decision, the
appellant now appeals to this Court.
THE APPEAL
[10] The grounds of appeal are as follows:
1.
Having found that there were no sustainable
grounds before it, the court ought to have dismissed the appeal. It could not competently convert
the proceedings to review
2 Record p 13
proceedings
during the preparation of its judgment without affording the appellant an
opportunity to make submissions on the proposed course of conduct.
2.
The court in ordering the reinstatement of the
respondent, failed to apply the law which unequivocally requires an employee
who has been unlawfully dismissed to
seek alternative employment;
3.
The court misapplied the Code of Conduct which
was an integral part of the contract of employment between the parties and
which directed the departmental head to conduct an investigation into an
alleged misconduct and to attend to the disciplinary hearing.
4.
Having correctly found that the evidence of
theft against the respondent had been credible and cogent the court erred in
refraining from dismissing the appeal and bringing finality to the matter.
I deal with the issues raised
in each ground in turn.
1. Whether
the court could competently convert the appeal proceedings to review
proceedings during the preparation of its judgment without affording the
appellant an opportunity to make submissions on the proposed course of conduct.
[11] It was
contended by Mr Mureriwa, on behalf
of the appellant that once the court
found that there were no sustainable
grounds of appeal it ought to have dismissed the appeal; that the Labour Court
has no jurisdiction to mero motu convert
an appeal to a review; that since the Labour Court rules clearly set out the
procedure to be adopted on review, the Labour Court, being a creature of
statute, had no jurisdiction to convert the appeal to a review; that in any
event, the Labour Court erred in law by mero
motu converting the appeal into a review without affording the parties an
opportunity to make submissions on the issue.
[12] Mr Makuku submitted
however, that the Labour Court is empowered by Rule 12 of the Labour Court
Rules to proceed as it did. Rule 12 provides:
“12. Informality of proceedings
(1)
Subject to these rules, the Court shall conduct any hearing in such manner as it
considers most suitable to the clarification of the issues, the fair resolution
of the matters, and generally the just handling of the proceedings before it.
(2)
The Court shall, so far as appear
(sic) to it appropriate, avoid formality in its proceedings and may, where
circumstances warrant it, depart from any enactment or rule of law relating to the admissibility of
evidence in proceedings before courts of
law generally.” (My emphasis)
[13] It seems to me that both sub rules relate to the
conduct of a hearing. It is common
cause that the conduct complained of
took place after the hearing was concluded and in the absence of the parties.
With regard to sub rule (2), the power granted is to depart, not generally from
any enactment or law, but from those which
relate to the admissibility of
evidence
in proceedings before courts generally.
[14] Appeals and reviews are governed by Rules 15 and
16. These Rules do not relate to the admissibility of evidence in proceedings
before courts of law. They therefore fall outside the bounds of permissible
departure demarcated by sub rule (2).
The Rules provide:
“15. Appeals
(1) A person wishing to appeal against any decision,
determination or direction referred to in section 97(1)(a) or (b) of the Act, or
on a question of law in connection with any arbitral award in terms of section
98(10) of the Act, shall, within twenty-one
days from the date when the appellant receives the decision, determination or
direction or award, do the following—
(a)
complete in three copies a notice of appeal in
Form LC 3; and
(b)
) …
(3)
A person making an appeal under this rule who also wishes to seek a review of the
proceedings in respect of which he or she makes the appeal shall, at the same time, complete in three copies a notice of review in
Form LC 4 and serve such notice
together with the notice of appeal under this
rule.
16.
Reviews
(1) A person wishing to seek review of proceedings referred to
in section 97(1) (c) or (d) of the Act shall, within twenty-one
days from the date when the proceedings are concluded, do the following—
(a)
Complete
in three copies a notice of review in Form LC
4; and ….”(The emphasis is mine)
[15] It is to be noted that the procedures laid down
for both appeals and reviews are clearly set out in Rules 15 and 16. Rule 15(3) sets out the procedure to be
adopted by the parties if it is intended
to seek a review in conjunction with appeal proceedings. This, undoubtedly, is
so that the attention of the other party can be adverted to the fact that both
a review and an appeal are contemplated.
[16] Neither the
procedure outlined in r 16 nor that in r 15(3) was adopted by the
respondent and I discern no power given
to the Labour Court in the Rules to dispense with the procedure as stipulated
in these two rules.
[17] My reading
of the Rules reveals one other provision empowering the Labour Court to depart from the Rules of that Court. It is
r 26. It states:
“26. Departures from rules
At any time before or during the hearing of a matter a President or the Court
may—
(a) Direct, authorise or
condone a departure from any of these
rules, including an extension of any period specified therein, where the
President or Court is satisfied that the departure is required in the interests
of justice, fairness and equity;
(b) give such directions as
to procedure in respect of any matter not expressly provided for in these rules as
appear to the President of the
Court to be just, expedient and equitable.” (My emphasis).
Here again,
the power to depart from the rules
is to be exercised „before? or „during? the
„hearing? of the
matter. It is not a blanket power to depart from the Rules generally, but a limited
power to do so within the confines of that rule.
[18] The Labour
Court?s conduct in
proceeding to convert the appeal into a review, and doing so after the hearing, is not supported by law
and is therefore ultra vires its powers as set out in the Act and Rules.
[19] In any
event, the failure to allow the parties, particularly the appellant in the
present case, to be heard before the appeal was „converted? to review
proceedings, amounted to an infringement of the rules of natural justice
which require a party to be heard before judgment prejudicial to his interests
is granted.
The first issue
is thus determined in favour of the appellant.
2.
Whether the court in ordering the reinstatement
of the respondent, failed to apply the law which unequivocally requires an
employee who has been unlawfully dismissed to seek alternative employment.
[20] Two legal principles were violated by the
order of the
court a quo. The first is that
when a court makes an order for reinstatement it must also make an order for
damages as an alternative to reinstatement. This is because of the time
honoured principle of the common law that an employer is not to be compelled to
retain in his employ an employee whom he
no longer wishes to employ by virtue of the fact that
the relationship between the employer and the employee has soured beyond
reconciliation3.
The second is that an employee who has been unlawfully dismissed must
mitigate his damages by seeking alternative employment. A court in assessing
damages is required to assess, after hearing evidence, the period within which
the employee could reasonably expect to obtain employment.4 The order deeming
reinstatement in the event of failure to complete fresh proceedings within 30
days has the effect of denying the respondent its right to an alternative of
paying damages in a properly quantified amount.
This issue
too, must be determined in favour of the appellant.
3. Whether
the court misapplied the Code of Conduct.
[21] An employment code of conduct specific to a
particular undertaking is, in effect, an agreement by the employer and employee
that they will be bound by its terms. Where no code of conduct is in existence
in a particular undertaking, the parties are bound by the applicable National
Employment Code of Conduct. It is
common cause that the Code of Conduct governing the parties allowed for Boothway,
as the departmental manager, to investigate and convene a disciplinary hearing.
The court a quo however concluded that the proceedings
ought to be set aside because he was „judge
and jailor?. The
learned Judge erred in this regard. The code of conduct was followed by the
appellant. What more could the appellant
reasonably be expected to do? In addition,
there was no complaint of actual bias
or untoward behavior on Boothway?s part. In my view, there was
3 Hama v National
Railways 1996 (1) ZLR 664 at p676;
Winterton Holmes & Hill v Paterson 1995 (2) ZLR 68 (S);
Commercial Careers College (1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 334 (S).
4See Ambali v Bata Shoe Co Ltd 1999 (1)ZLR 417 (S)
no impropriety in Boothway?s
presiding at the hearing. This issue is decided in favour of the appellant.
4. Whether
the court erred in refraining from dismissing the appeal and bringing finality
to the matter.
[22] Even assuming
that 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 technicalities5.
The court had the option of calling evidence to cure the irregularity if it
considered that to be the proper course, or to decide the matter on the record.
[23] As submitted on behalf of the appellant, the court
a quo found that there was
evidence which proved on a balance of
probabilities that the respondent had stolen the thrust bearing. In this regard the court said:
“On the adequacy of evidence the
appellant complained about the late report and that the witness was a
suspect witness. He also said that if he had stolen the bearing then it should
have been recovered at the search on the way out. The main argument is on the
credibility of the witness, Kenias Labani. That credibility is best judged by
those who heard him give evidence of
credibility. The evidence by Kenias seems to be reliable on a balance of
probabilities. We are talking of an eye witness here who was working with the
appellant. Nothing has been demonstrated to
show his unreliability. This evidence is otherwise acceptable but shall not
make a determination on it in view of the order I shall be making.”(My emphasis)
5Dalny Mine v Banda 1999 (1) ZLR 220 (SC)
[24] In
the light of the court?s own judgment supporting the appellant?s contention
that the offence of theft had been proved on a balance of probabilities,
the failure by the court to dismiss the appeal and its consequent order of a
fresh trial on pain of reinstatement of the respondent in the event of a
failure to conclude the hearing in 30days bordered on irrationality and
amounted to a gross misdirection. There is no doubt that the appellant was
prejudiced by this conduct of the court a quo. Quite clearly
there was sufficient evidence on record to prove the commission of the offence
by the respondent. The court therefore erred in failing to bring the matter to
finality. The appeal ought to have been dismissed.
IN CONCLUSION
[25] I conclude with two comments on the order of the
court a quo. Firstly, the respondent?s prayer on appeal to the Labour Court was that
„the conviction be quashed?. The Labour Court gratuitously granted the
order set out above. Apart from the remarks already made in this judgment, it
is clear that no purpose would be served by a hearing de novo in
these circumstances where the appellant had already established on a balance of
probabilities that the respondent had stolen the bearing.
[26] Secondly, the order that the respondent was „to remain on
suspension? is a
misdirection. The respondent was not suspended. He was dismissed
following misconduct proceedings. The only course open to the court a
quo in the event of a finding that he was unlawfully dismissed, was
whether to order reinstatement or damages in lieu.
DISPOSITION
[27] It follows from the above that the appeal
must succeed.
[28] It is therefore ordered as follows:
1.
The appeal is allowed with costs.
2.
The order of the Labour Court is set aside and
substituted with the following:
“The appeal is dismissed with costs.”
HLATSHWAYO
JA: I agree
MAVANGIRA
JA: I agree
Scanlen & Holderness, appellant?s legal practitioners
Makuku Law Firm, respondent?s legal
practitioners
1 Record p90
2 Record
p 13
3 Hama v National
Railways 1996 (1) ZLR 664 at p676; Winterton Holmes & Hill v Paterson 1995 (2) ZLR 68 (S);
Commercial Careers College (1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 334 (S).
4See Ambali
v Bata Shoe Co Ltd 1999
(1)ZLR 417 (S).
5Dalny Mine v Banda 1999 (1) ZLR 220 (SC)
