The respondent was an employee of the appellant Corporation.
The Corporation's human resources manager, Mr Sibanda, accused the respondent
of various disciplinary offences. The accusations were heard by a disciplinary
committee established under the Corporation's disciplinary code. The committee
found him guilty and recommended his dismissal, which was carried out by the
general manager. The respondent appealed to the Labour Relations tribunal under
s 101 of the Labour Relations Act. The Tribunal handed down a judgment, in
which it expressed the opinion that it had general powers of review akin to
those of the High Court and declared that the disciplinary committee had
committed a series of irregularities in the hearing. These included (a) a
denial of the respondent's request to be legally represented; (b) the improper
composition of the committee and (c) allowing Mr Sibanda to attend the hearing
and take part in the proceedings. The Tribunal set aside the proceedings of the
committee and ordered the respondent's reinstatement. The Corporation appealed
to the Supreme Court.
Held, that a person aggrieved either by a determination made
in his case under a code or by the conduct of any proceedings in terms of a
code may appeal against such determination or conduct to the Tribunal. The
Tribunal is empowered to confirm the proceedings appealed against, remit the
matter for determination by the person or body responsible for enforcing the
code, or substitute its own determination for that appealed against. The Act
gave no power of review in this situation, whereas, in an appeal against a
decision of a labour relation officer, the Act specifically gave the appellant
the right to seek a review. It was clear, therefore, that in this case the
Tribunal had no general powers of review.
Held, further, that although the Tribunal had no powers of
review, the disciplinary committee was still obliged to observe the rules of
natural justice, though any breach of those rules would require an aggrieved
person to seek relief by review in the High Court.
Held, further, that where a disciplinary code governs the
conduct of employees, the right to be represented at an enquiry depends on the
provisions of the code itself. The Act requires that a code of conduct must
grant a right to be heard, and the Corporation's code provided for representation
by the workers' committee. As no mention was made in the code of legal
representation, no right to representation, other than by the workers'
committee, was intended to be conferred.
Held, further, that the composition of the disciplinary
committee was set out by the code; this did not include the human resources
manager. While Mr Sibanda was not present as a member of the committee, nor was
he present merely as an observer. Allowing him to be present other than a
silent observer went beyond the parameters of the code. This was a procedural
irregularity which, if not vitiating the proceedings, rendered them voidable at
the instance of the respondent. The irregularity was calculated to prejudice
the respondent and was not shown by the Corporation not to have caused any
prejudice.
Held, therefore, that although the other "irregularities"
found by the Tribunal were not sufficient to make the proceedings of the
committee a nullity, the irregularity caused by Mr Sibanda's presence and
participation was ground for setting aside the committee's proceedings. For
this reason alone, the Tribunal's order would be upheld.
Appeal dismissed.
Cases cited:
PF-ZAPU v Min of
Justice 1985 (1) ZLR 305 (S)
Thandroyen v Sister
Annuncia & Anor 1959 (4) SA 632 (N)
Turner v Jockey Club
of SA 1974 (3) SA 633 (A)
Rossouw v SA Mediese
Navoringsraad 1990 (3) SA 297 (C)
Blacker v Univ of Cape
Town & Anor 1993 (4) SA 402 (C)
Mutare, City of v Mlambo 1992(1) ZLR 17 (S)
Vice-Chancellor, Univ
of Zimbabwe & Anor v Mutasah & Anor 1993 (1) ZLR 162 (S)
Dladla & Ors v
Admin, Natal & Ors 1995 (3) SA 769 (N)
Dabner v SAR&H
1920 AD 583
Cuppan v Cape Display
Supply Chain Svcs 1995 (3) SA 175 (D)
Lamprecht & Anor v
McNeillie 1994 (3) SA 665 (A)
Gründling v Beyers
& Ors 1967 (2) SA 131 (W)
Cohen v SA Pharmacy
Council 1993 (1) SA 297 (C)
Jockey Club of SA
& Ors v Feldman 1942 AD 340
Rajah & Rajah
(Pty) Ltd & Ors v Ventersdorp Municipality & Ors 1961 (4) SA 402 (A)
A P de Bourbon SC for the appellant
T Biti for the respondent
GUBBAY CJ: On 4 July 1994 the respondent, a senior
administrative officer and vice-chairman of the workers' committee of the
appellant ("the Corporation") was notified that in two days' time a
disciplinary hearing would be held to enquire into certain allegations of
misconduct levelled against him. The notification was dated 30 June 1994 and
had been signed by the Corporation's human resources manager, Mr Abel Sibanda.
The allegations detailed therein were of a serious nature. They included: (i)
engaging in clandestine activities calculated to cause disharmony and bring the
Corporation into disrepute; (ii) wilful disobedience to lawful orders and
instructions; (iii) unlawful access to and interception of documents; and (iv)
conduct inconsistent with the contract of employment. It was further indicated
that the proceedings against the respondent were to be carried out in terms of
subparas 5(ii)(a) and (h) and subpara 5(iii) to Section B of the Corporation's
registered employment code of conduct.
The relevant provisions of Section B of the code read:
"5 DISCHARGE
This is the final sanction and should be used:
(i) .
(ii) When an employee commits the following
offences -
(a) wilful disobedience to a lawful order
given by the employer;
.
(h) any act, conduct or omission inconsistent
with the fulfilment of the express or implied conditions of his contract.
(iii) When an employee commits any other
serious offence which the disciplinary committee deems merits a discharge."
A request for one week's postponement of the hearing, in
order to enable the respondent to prepare a defence, was granted.
The respondent was found guilty at the hearing of the
disciplinary committee held on 13 July 1994. He was advised that it was to be
recommended to the general manager that he be dismissed.
In a letter dated 19 July 1994 the general manager informed
the respondent that he was discharged from employment with effect from that
date.
Aggrieved both by the manner in which the disciplinary
committee had conducted the hearing and the determination made, the respondent
noted an appeal to the Labour Relations Tribunal ("the Tribunal"), pursuant to
s 101(7) of the Labour Relations Act [Chapter 28:01].
The appeal was heard on 24 October 1994, yet it was only on
3 March 1995 that judgment was handed down. Expressing the opinion that s
101(7)(b) of the Labour Relations Act vested it with general powers of review
akin to those possessed by the High Court, the Tribunal declared that during
the course of the hearing the disciplinary committee of the Corporation had committed
a series of gross irregularities. These were: (i) the denial of the
respondent's request to be legally represented before it; (ii) the hearing of
the charges in the exercise of original jurisdiction when under the code it was
constituted solely as an appellate body; (iii) its improper composition of four
members from management instead of the prescribed three and the error in
allowing Mr Sibanda to attend the hearing and participate in the conduct of the
proceedings; (iv) the possibility that two members from management, Mr Sibanda
and a divisional manager, Mr Chingwena, were biased against the respondent; and
(v) the manner in which the finding of guilt was arrived at. In the result, the
Tribunal set aside the proceedings of the disciplinary committee and ordered
that the respondent be reinstated in his employment without any loss of salary
or benefits with effect from the date of the unlawful dismissal.
It is convenient to deal with the findings of the Tribunal,
the propriety of which is challenged by the Corporation, in the sequence in
which they are set out above.
THE REFUSAL TO PERMIT THE RESPONDENT TO BE LEGALLY
REPRESENTED
At the outset it is necessary to decide whether in enacting
s 101(7)(b) of the Labour Relations Act the Legislature intended to
constitute the Tribunal as a review body. Section 101(7) and (8) reads:
"(7) Any person aggrieved by -
(a) a
determination made in his case under a code; or
(b) the conduct
of any proceedings in terms of a code;
may, within such time and in such manner as may be
prescribed, appeal against such determination or conduct to the Tribunal.
(8) On an appeal in terms of subsection (7) the
Tribunal may -
(a) confirm the
determination or proceedings appealed against; or
(b) remit the
matter for determination by the person, committee or authority referred to in
paragraph (d) of subsection (3); or
(c) substitute
its own determination for that appealed against" (my emphasis).
It is immediately apparent that the lawmaker deliberately
chose to use the words "appeal" and "appealed against" both in respect of "a
determination made" and "the conduct of any proceedings". The aggrieved person
is entitled to appeal against the conduct of any proceedings in terms of a code
and the Tribunal is empowered to confirm the proceedings appealed against or
remit the matter for determination to the person or body responsible for
implementing and enforcing the code. If the lawmaker had been minded to clothe
the Tribunal with the conventional powers of review, which are the prerogative
of the High Court, would it not have used express language, as it did when
enacting s 97? That provision, which was inserted into the Act
simultaneously with s 101, by the Labour Relations Amendment Act 12 of
1992, deals with appeals to the Tribunal against the determination of a senior
labour relations officer or against the conduct of the investigation of a
dispute or unfair labour practice by a labour relations officer or senior
labour relations officer. Subsection (2) provides:
"An appeal in terms of subsection (1) may -
(a) address the
merits of the determination or decision appealed against; or
(b) seek a
review of the determination or decision on any ground on which the High Court
may review it; or
(c) ." (my
emphasis).
A comparison of the different remedies given by
s 97(2)(b) and s 101(8)(a) clearly indicates that the Legislature did
not intend under the latter to afford the person aggrieved the right to seek a
review by the Tribunal of the conduct of proceedings in terms of a code, on any
ground that the High Court may review such conduct. In my opinion, all that the
Tribunal is empowered to do under s 101A(7)(b) is to determine whether the
conduct of the proceedings conformed with the specific clauses of the
registered employment code of conduct, and not whether the manner of the
proceedings thereunder offended the principles of natural justice, as
adumbrated in such cases as Patriotic Front-ZAPU v Min of Justice 1985 (1) ZLR
305 (S) at 326B-327B. This is not to imply, however, that in conducting a
hearing the disciplinary committee is not obligated to apply the elementary
tenets of natural justice - to act fairly and honestly. It most assuredly is.
See Thandroyen v Sister Annuncia & Anor 1959 (4) SA 632 (N) at 639H-640A;
Turner v Jockey Club of SA 1974 (3) SA 633 (AD) at 646F-646 in fine; Rossouw v
SA Mediese Navoringsraad 1990 (3) SA 297 (C) at 308 H-I; Blacker v University
of Cape Town & Anor 1993 (4) SA 402 (C) at 407E-F. But any breach by it
requires the aggrieved employee to take the High Court route in pursuit of
relief.
Whether or not a denial of legal representation before a
tribunal other than a court of law infringes the right of the person affected
to a fair hearing is a somewhat open question. See City of Mutare v Mlambo 1992
(1) ZLR 17 (S) at 21, Vice-Chancellor, University of Zimbabwe & Anor v
Mutasah & Anor 1993 (1) ZLR 162 (S) at 174G-H; Baxter Administrative Law at
pp 555-556. But it is one which falls squarely within the purview of the High
Court's review powers. This is so even where what is in contention is a failure
by that body to exercise a proper discretion in refusing legal representation
and not merely the existence of an absolute right to enjoy it. See Dladla &
Ors v Admin, Natal & Ors 1995 (3) SA 769 (N) at 776B-J.
In the sphere of employment law, where a disciplinary code
governs the conduct of employees, the right to be legally represented at an
enquiry is dependent on the provisions of the code itself. See Dabner v
SAR&H 1920 AD 583 at 598; Cuppan v Cape Display Supply Chain Svcs 1995 (3)
SA 175 (D) at 182G-I. It is just as if the employment relationship were
regulated under a contract. See Lamprecht & Anor v McNeillie 1994 (3) SA
665 (A) at 668 B-I.
Section 101(3)(f) of the Labour Relations Act mandates that
an employment code of conduct must grant to the employee, alleged to be in
breach thereof, the right to be heard by the person, committee or authority
responsible for its implementation, before any decision is made in the case.
The Corporation's code provides that members of staff accused of committing
work-related offences may be represented at the disciplinary hearing by the
workers' committee. It was common cause that this form of representation was
always available to the respondent. But there is no mention in the code of
legal representation. The omission, I think, gives rise to the inference that
no right to representation, other than by the workers' committee, was intended
to be conferred.
It follows, in my view, that, at the very least, the
Tribunal erred in believing that it was empowered by s 101(7)(b) to decide
whether the refusal to permit the respondent to be legally represented amounted
to a violation of the principles of natural justice.
THE HEARING OF THE CHARGES OF MISCONDUCT BY THE DISCIPLINARY
COMMITTEE IN THE EXERCISE OF ORIGINAL JURISDICTION
It was held by the Tribunal that, under the Corporation's
code, the disciplinary committee was vested solely with appellate jurisdiction;
and that, since it sat as a body of first instance when enquiring into the allegations
of misconduct against the respondent, it had acted ultra vires the code. It was
the Corporation's contention that the Tribunal had erred in this regard.
Section A of the code contains a classification and
definition of work-related offences ranging from absenteeism to management
ineptitude.
Section B sets out the various penalties that may be
imposed. In degrees of severity they consist of: (i) verbal warning; (ii)
written warning; (iii) suspension; (iv) demotion; (v) discharge.
Verbal warnings are to be issued by a supervisor and are
subject to an appeal to a divisional manager.
Written warnings are to be given by a divisional manager and
arise in consequence of the submission of a complaint by the employee's
supervisor. The divisional manager must then carry out the investigation. If
the complaint is found by him to be of substance, the warning is entered on the
employee's disciplinary record. The levels of written warning provided for are
the first, the second, and the final. The offences for which these particular
warnings can be given are specified. An appeal lies from a decision of the
divisional manager to the disciplinary committee.
The next level of sanctions are suspension, demotion and
discharge. As already noted, the last option is to be resorted to: (i) when all
other forms of disciplinary action have failed; (ii) when a specified offence
was committed, eg, wilful disobedience to a lawful order, theft or fraud; (iii)
where any other serious offence was committed which the disciplinary committee
deems merits a discharge.
Section C of the code deals first with Disciplinary
Structure. Four responsible authorities, in order of rank, are mentioned. They
are: (i) supervisor; (ii) divisional manager; (iii) disciplinary committee as
an appeal body; (iv) general manager as a review body. The sanctions of
suspension, demotion and discharge are not referred to as possible "actions";
only verbal and written warnings. Consequently, the capacity in which the
disciplinary committee sits in relation to the sanction of discharge is to be
sought else-where in the code.
The answer is to be found in the specific provisions
relating to dismissal, which fall under the heading of Disciplinary Procedure.
They read:
"Where an employee has failed to make the required
improvement or a disciplinary offence warranting dismissal is committed the
employee may be dismissed. Dismissal should only be implemented by the General
Manager.
Dismissal follows only after:
(a) appropriate
investigation and consideration by management;
(b) meeting of
the disciplinary committee;
(c) putting the
company position clearly to the employee;
(d) an
opportunity to make a case has been given to the employee and/or his/her
representative;
(e) final consideration by the disciplinary
committee of the employee's and/or the representative's statement(s) or
position."
The following features, to my mind, point inextricably to
the disciplinary committee sitting as a body of first instance where the final
sanction of discharge may be used against an employee.
First, the disciplinary action of the divisional manager
extends only to the issue of written warnings and to the confirmation or
variation on appeal of a verbal warning given by a supervisor. It does not
embrace the most serious sanctions of suspension, demotion and discharge.
Second, the investigation is to be undertaken by management
and not by a divisional manager upon submission of a complaint by the
employee's supervisor.
Third, the duty of the disciplinary committee to put the
company's position clearly to the employee accords more with the conduct of a
first hearing than with a situation in which the members of the disciplinary
committee have before them "a copy of the appeal".
Fourth, the duty cast upon the disciplinary committee to
afford the employee the opportunity to "make a case" would be unnecessary were
it hearing an appeal. The injunction requires that the employee be allowed to
present his defence to the charge(s) of misconduct - a defence not previously
presented.
For these reasons I am in respectful disagreement with the
Tribunal's finding that under the code the disciplinary committee is limited to
the exercise of appellate jurisdiction.
THE COMPOSITION OF THE DISCIPLINARY COMMITTEE AND MR
SIBANDA'S PRESENCE AT AND PARTICIPATION IN THE PROCEEDINGS
The code provides that the disciplinary committee, on the
management side, is to be made up of the deputy general manager (services) or
his alternate, the deputy general manager (sales), and two divisional managers;
and of three members of the workers' committee representing the employees
generally. A quorum is four persons.
The specific complaint made by the respondent was that Mr
Sibanda, the human resources manager, was included as a member of the
disciplinary committee. Certainly, the first set of minutes lists him as one of
the managers; the other set of minutes simply records him as being present, but
places his name after those of the chairman and the two divisional managers yet
before the names of the three members of the workers' committee. The
respondent's name comes last. However, it is clear from the utterances recorded
from Mr Sibanda during the hearing that he was present in his capacity as human
resources manager and not as a member of the disciplinary committee.
Unquestionably, when the members were called upon to express their views and
vote on whether the respondent was guilty or not, Mr Sibanda was excluded.
Nonetheless, it is certain that Mr Sibanda was not present
merely as an observer. The minutes reflect that he was permitted to put
questions to and make statements concerning the respondent, although the
occasions on which he did so were few. The purpose of his attendance was, in
his own words, "to guide the committee". It is probable, therefore, that he
took part in their deliberations. The extent to which he may have influenced
the deputy chairman and the two divisional managers or hampered their
discussions is not known. What is plain is that in allowing Mr Sibanda to be
present, in a capacity other than a silent observer, the disciplinary committee
went beyond the parameters of the code. It was an act impliedly forbidden. Thus
a procedural irregularity occurred which, if not vitiating the proceedings,
rendered them voidable at the instance of the respondent. See Gründling v
Beyers & Ors 1967 (2) SA 131 (W) at 151H-152H; Cohen v SA Pharmacy Council
1993 (1) SA 297 (C) at 303C. The irregularity was calculated to prejudice the
respondent and was not shown by the Corporation not to have caused any
prejudice. See Jockey Club of SA & Ors v Feldman 1942 AD 340 at 359; Rajah
& Rajah (Pty) Ltd & Ors v Ventersdorp Municipality & Ors 1961 (4)
SA 402 (A) at 408A; Blacker v University of Cape Town & Anor supra at 408C;
Cohen v South African Pharmacy Council supra at 303H-J.
THE COMPLAINT THAT BOTH MR SIBANDA AND MR CHINGWENA, A
DIVISIONAL MANAGER, WERE BIASED AGAINST THE RESPONDENT
The Tribunal's approach to the issue of bias is exemplified
in the following passage of the judgment:
"The protestations that two members from management . were
biased were brushed aside without any consideration on the merits. The chairman
made no ruling on the objection and the proceedings simply went ahead as if
there had been no objection.
As the record stands now there is no way of knowing whether
or not Mr Sibanda and Mr Chingwena were in fact biased against (Mr Mazvimavi).
For that reason the proceedings were a nullity for justice must not only be
done, it must be seen to be done."
What this means is that, in the absence of any proof of
bias, and merely upon the respondent's bald assertion that bias existed, the
Tribunal found there to be a fatal irregularity in the proceedings. That was a
misconception on its part.
THE MANNER IN WHICH THE FINDING OF GUILT WAS REACHED
The Tribunal was of the opinion that the minutes revealed
that:
". the decision to convict was that of the chairman and not
the disciplinary committee. The chairman had no authority to determine the
matter single-handedly. The responsibility lay with the disciplinary committee.
For that reason the proceedings were a nullity."
A careful overall reading of the relevant part of the
minutes suggests to me that the verdict of guilty was not that of the chairman
alone. It is true that after the last witness had testified the chairman asked
the respondent what he had to say in mitigation, pronounced his own verdict of
guilty and then sought the comments of the other members. It would have been
preferable if he had asked for their views before expressing his own. Be that
as it may, each member was afforded an opportunity to speak and did so.
Thereafter, the chairman announced the verdict of the majority.
I do not consider therefore that this aspect of the
proceedings rendered them a nullity.
In the result, however, I agree with the Tribunal's order
that the proceedings of the disciplinary committee of 13 July 1994 be set
aside. But I hold this to be by reason of the irregularity caused by Mr
Sibanda's presence and participation.
It follows that the respondent is to be placed in the
position he was in prior to 13 July 1994.
I would add, however, that if there is to be another hearing
by the disciplinary committee into the allegations of misconduct, members on
the management side, as well as those from the workers' committee, must be
different from those who previously comprised the disciplinary committee.
The appeal is accordingly dismissed with costs.
Korsah JA: I agree.
Muchechetere JA: I agree.
Kantor & Immerman, appellant's legal practitioners
Honey & Blanckenberg, respondent's legal
practitioners
