GWAUNZA
JA:
The
respondent was employed by the appellant as manager of its Mutare
branch. On 25 June 2002, a Mr G Good ("Mr Good"), who was
the Director responsible for Sales and Marketing addressed a letter
to the respondent suspending him from duty with immediate effect
without pay and benefits.
The
suspension followed an investigation conducted at the instance of the
appellant, into the offences allegedly committed by the respondent.
The offences essentially were dishonesty, theft of company property
and gross dereliction of duty.
Mr
Good had considered both the findings of the investigation and the
respondent's response to them, before suspending him. The letter of
suspension referred to invited the respondent to report to the
appellant's Mutare Branch for a disciplinary hearing on the 3rd
of July 2002.
The
hearing was to be held in terms of Step 2 of the "Disciplinary
Structure and Levels of Authority" part of the appellant's Code
of Conduct.
A
day before that date, the respondent's legal practitioner addressed a
letter to the appellant:
(a)
requesting a postponement of the hearing to 12 July 2002;
(b)
asking for confirmation that the respondent would be entitled to
legal representation at the hearing; and
(c)
objecting to the respondent being represented at the hearing by a
member of the workers' committee on the ground that as a Branch
Manager he did not "belong" to the Workers' Committee. Also
that, in any case, most of the allegations he was facing stemmed from
his subordinates.
It
would appear from the record that the request for legal
representation of the respondent at the hearing, which was postponed
to 10 July 2002, was denied.
The
respondent's legal practitioners wrote again to the appellant on 9
July 2002, reiterating their argument that the respondent could not
be represented by the workers committee at the disciplinary hearing.
In the same letter the legal practitioners pointed out as follows:
"If
indeed the idea of his being legal (sic) represented at the hearing
is disagreeable, then we suggest that a mutually agreed managerial
representative be appointed to represent him or alternatively the
matter should be referred to the Ministry of Labour for adjudication.
Please
note that under our advice Mr Gwekwerere will not be attending the
hearing set for Wednesday the 10th
July and will only attend a hearing which meets the minimum
requirements of justice and fair play".
The
disciplinary hearing was duly held, in the absence of the respondent
on 10 July 2002. He was found guilty as charged and dismissed from
his employment.
After
what I view as a half-hearted attempt to appeal to the Disciplinary
Committee of the appellant, the respondent then applied to the High
Court for a review of the proceedings leading to the decision to
dismiss him. He cited two grounds of review, namely, that the
procedure used in dismissing him was such as to deny him a fair
opportunity to be heard, and that no fair hearing was convened in
terms of the Code of Conduct.
The
court a
quo
found in favour of the respondent and ordered the appellant to
reinstate him to his former employment without loss of salary or
benefits.
Dissatisfied
with the decision of the High Court, the appellant now appeals to
this Court.
The
appellant's main ground of appeal is that the court a
quo
erred in hearing the matter considering:
(a)
that the respondent had not exhausted domestic remedies provided in
the code of conduct; and
(b)
that the appellant had, indeed, not furnished the court a
quo
with a full record of the disciplinary proceedings.
It
is argued in this latter respect that the decision of the court a
quo,
can therefore not be a review of such proceedings since the
regularity or otherwise of the proceedings can only appear from the
record.
Another
ground of appeal is that the court a
quo
should have, as is the norm, ordered payment of damages in lieu
of reinstatement.
I
will consider these grounds in the light of the evidence before me.
Exhaustion
of domestic remedies
It
is not in dispute that the respondent was called to attend a
disciplinary hearing in accordance with Step 2 of the "Disciplinary
Structure and Levels of Authority" of the appellant's Code of
Conduct.
Through
his lawyers the respondent expressed misgivings about the composition
of the hearing panel, as already explained. He also set certain
conditions for his attending, but in the end and as earlier
threatened by him, refrained from attending the hearing, which went
ahead without him.
Witnesses'
evidence was recorded and considered against the respondent's written
responses to the various charges levelled against him.
The
hearing was conducted by the Head of Department, Mr Good, in the
presence of an accountant, a Mr Marshall whose role at the hearing
was not explained.
The
determination to dismiss the respondent was communicated to him on 22
July 2002. The respondent, through his lawyers, then wrote to Mr Good
on 2 September 2002, indicating his intention to appeal to the
Disciplinary Committee of the appellant.
The
letter went on to say;
"Strictly
speaking, and in our respectful view, our client has not been
accorded a hearing at all. This could be rectified by following any
of our suggestions proffered in our letter of 9 July 2002. Please let
us hear from yourselves within 7 days of this letter. In the event
that you fail to accede to our suggestions within 7 days of this
letter, we have to advise that it is our client's intention to apply
to the High Court for similar relief ."
In
the event, and despite giving notice to appeal, the respondent filed
review proceedings in the High Court.
His
reason for not pursuing the appeal to the Disciplinary Committee was
that the appellant, through Mr Good, had "thwarted" his
attempt to exhaust local remedies. This was in reference to a letter
written by Mr Good in response to the respondent's letter of 2
September 2002. In that letter, Mr Good had implied that the
respondent's appeal would be out of time and that he still stood
dismissed.
Having
considered the appeal process as outlined in the appellant's Code of
Conduct, I am persuaded by the appellant's contention that the
respondent abandoned his domestic remedies for no valid reason.
According
to the Code of Conduct, the respondent was obliged, which he in fact
did, to notify the Head of Department of his intention to appeal to
the Disciplinary Committee. Nowhere, however, does it say that the
Head of Department must then give his leave for the aggrieved
employee to so appeal.
Indeed
Mr Good's letter of 6 September 2002, while it may not have been
encouraging, did not purport to forbid the respondent from appealing
to the Disciplinary Committee. In any case, the letter itself was
unnecessary and certainly did not stand in the way of the
respondent's appealing to the Disciplinary Committee, had he so
wished.
The
evidence before the court suggests the respondent did not wish to do
so. Therefore, the real reason for him to take the matter to the High
Court, as threatened in the letter of 2 September 2002, was that the
appellant refused to take up his lawyers' suggestions as expressed in
their letter of 9 July 2002.
In
the High Court, the respondent sought a review of the decision of his
Head of Department, the same relief that, according to the
appellant's Code of Conduct, he could have more speedily obtained
from the Disciplinary Committee had he taken his appeal to it.
The
argument is therefore correctly made on behalf of the appellant that
the Disciplinary Committee, which had powers of review, could have
afforded the respondent effective redress against what he perceived
to be an unlawful termination of his employment.
Clause
5.2.2 of the Code of Conduct reads as follows:
"The
appellant shall submit his appeal in writing, stating his reasons for
appeal. The disciplinary committee shall allow the appellant an
opportunity to expand
on
his appeal then review
the disciplinary record, proceedings and documentary evidence to
arrive at its decision". (my emphasis)
Thus
in addition to considering an appellant's reasons for appeal, the
Disciplinary Committee, by allowing the appellant an opportunity to
"expand" his appeal before reviewing the proceedings and
other evidence would in effect have re-heard the matter.
The
implication of such a re-hearing vis-a-vis
the first hearing was clearly explained by Smith J in Paddington
Musandu v Chairperson of Cresta Lodge Disciplinary & Grievance
Committee
HH115-94 as follows:
"The
appeals provided for are a rehearing of the matter in the fullest
sense of the word in which the matter will be fully considered by the
Disciplinary and Grievance Appeals Committee and then by the Labour
Relations Tribunal if there is a further appeal. In my view, this
court should not be prepared to review the decision of a domestic
tribunal merely because the aggrieved person has decided to apply to
court rather than to proceed by way of the domestic remedies
provided. The factors mentioned by MTAMBANENGWE J in Tutani's
case supra
should
be carefully considered before a decision is made. A litigant should
exhaust his domestic remedies before approaching the courts unless
there are good reasons for approaching the court earlier."
In
Girjac
Services (Private) Limited v Mudzingwa,
1999
(1) ZLR 243
(S) at 249 E-F GUBBAY CJ restated the same principle in different
words:
"In
this matter, the procedure under s6 of the Code of Conduct, and the
availability of an appeal to the Labour Relations Tribunal, was
capable of affording the respondent effective redress against the
unlawful termination of his employment. Furthermore, the unlawfulness
had not been undermined by such domestic remedies, for the grievance
procedure had not been resorted to. Finally, no special circumstances
or good reasons were advanced by the Respondent for approaching the
High Court. He maintained silence.
It
follows that I can find no warrant for not enforcing the requirement
that the Respondent ought to have exhausted the remedies available to
him under the domestic legislation. It is on this ground that the
appeal succeeds."
These
dicta,
I find, can properly be applied to the circumstances of this case.
The
appeal procedure as outlined in the appellant's Code of Conduct,
would have allowed both a review and rehearing of the matter at the
disciplinary committee stage, an appeal to the head of business and
thereafter to the Labour Court. It would in short, have afforded the
respondent effective redress against what he perceived as an unlawful
termination of his employment.
There
is, besides this, no evidence to suggest, nor has the respondent made
the allegation, that the perceived unlawfulness had been undermined
by the said domestic remedies.
This
is particularly so given the fact that the Disciplinary Committee,
according to the Code of Conduct was composed of the Personnel
Manager, the Chairman and Secretary of the Workers' Committee, two
other Heads of departments and the appellant's Head of department, if
required.
Thus
Mr Good, against whom the respondent alleged bias and ill will
towards him, would necessarily not have been required to sit on the
committee.
Finally,
as already indicated and despite the finding
by the learned judge a
quo,
the respondent did not, in my view, advance any special reasons for
by-passing the domestic remedies and approaching the High Court. The
reason that he gave was, in my opinion, both feeble and untruthful.
It
is clear on the evidence before the Court that the respondent had an
obvious disdain for the domestic remedies contained in the
appellant's Code of Contact. He made no serious attempt to invoke
them.
In
the final result, I find that the court a
quo
should, for the reasons outlined, have declined to hear the
application. The appellant's ground of appeal in this respect is
therefore upheld.
Incomplete
record of proceedings for which a review was sought
The
court a
quo
observed correctly that the appellant had failed to comply with Rule
260 of the High Court Rules requiring the lodging with the Registrar,
of the original record. The Rule is expressed in peremptory terms and
reads as follows:
"(1)
The clerk of the inferior court whose proceedings are being brought
on review, or the tribunal, board or officer whose proceedings are
being brought on review, shall
within
twelve days of the date of service of the application for review,
lodge with the registrar the original record, together with two typed
copies, which copies shall be certified as true and correct copies.
The parties to the review requiring copies of the record for their
own use shall obtain them from the official who prepared the record."
(my emphasis)
There
is no dispute that the appellant failed to provide the full record to
the Registrar and therefore, the court a
quo.
Reference
in the Head of Department's lengthy determination is made to no less
than twenty annexures. The annexures, it is indicated, contained
evidence substantiating the various charges brought against the
respondent. Such evidence would have been relevant to a consideration
of the merits of the case against the respondent.
As
noted earlier, the learned judge a
quo
was alive to the shortcomings in the record submitted by the
appellant. The respondent, too, could not have failed to appreciate
the same. It was, no doubt, open to the learned trial judge to direct
that the full record be made available, in the meantime postponing
the hearing of the matter. The respondent, in his turn, would have
been within his rights to demand the full record before the matter
could be heard. However, neither the learned trial judge, nor the
respondent chose to exercise these options.
Even
though it was through its default that the full record was not
provided, the appellant nevertheless in my view is justified in its
argument that the court a
quo
was not in a position to properly review the decision of the Head of
Department without the full record of proceedings.
In
her judgment, the learned judge a
quo
literally conceded the cogency of this argument. After commenting on
the incompleteness of the record, she noted as follows on page 7 of
the judgment:
"..
It is thus not possible in the absence of such documents for the
court to make a finding whether or not the decision reached in the
determination (by Good) was reasonable."
Therefore,
having decided, in its discretion, to hear the matter despite the
disregard by the respondent of the domestic remedies as outlined in
the Code of Conduct, my view is that the court a
quo should
have felt the necessity to ensure that the matter was determined on
the basis of a full record of the proceedings whose review was being
sought.
Since
the court a
quo proceeded
to hear the matter in the face of these two serious shortcomings,
that is, the disregard of the domestic remedies, and the incomplete
record, I am satisfied there is merit in the appellant's main ground
of appeal as already outlined.
Damages
in lieu
of Reinstatement
The
court a
quo
set aside the dismissal of the applicant "without loss of salary
and benefits."
The
appellant contends, correctly, that the effect of the order was for
the appellant to reinstate the respondent.
It
is contended also, that the order of the court a
quo
did not take into account the possibility that the working
relationship between the parties might have irretrievably broken down
due to mutual loss of confidence and trust between them. In that
case, it is further contended, an alternative order for the payment
of damages would have been more appropriate.1
I
find there is substance in this contention.
In
casu,
the respondent charged that Mr Good had exhibited ill will towards
him, while the appellant fully believed the respondent was guilty of
dishonesty and gross dereliction of duty. In these circumstances, it
is more probable than not, that a normal working relationship would
not have been capable of restoration had the appellant been forced to
take the respondent back.
The
appellant has cited Girjac's
case (supra)
as authority for the proposition that where the reinstatement of an
employee could not be tolerable to both parties, an alternative order
for the payment of damages in lieu
of reinstatement would be appropriate.
It
is, in any case, now accepted that an order for reinstatement must be
accompanied with an alternative order for the payment of damages in
lieu
of reinstatement: Hama
v National Railways of Zimbabwe
1996
(1) ZLR 664
(S).
An
applicant must however, make and argue a case for such alternative
relief.
In
the court a
quo,
the respondent sought an order, simply, that his dismissal be set
aside without loss of salary and benefits. To his detriment, he did
not consider, argue for, nor, therefore, claim, an alternative order
for the payment of damages in lieu
of reinstatement.
In
Girjac's
case (supra)
at 250 C-D this Court considered that very point and determined as
follows:
"Since
the issue of damages had not been argued, let alone raised in the
papers, the learned judge (deciding, as he must have, that the
court's intervention was properly sought) ought to have dismissed the
application on the ground that the nature of the relief claimed was
misconceived; leaving it to the respondent, if so advised, to pursue
a claim for damages by way of fresh proceedings."
Thus
on the authority of this dictum,
the learned judge a
quo
should, on the same basis, have dismissed the respondent's
application.
All
in all the appeal has merit and must therefore succeed.
In
the result it is ordered as follows:
1.
The appeal be and is hereby allowed with costs.
2.
The judgment of the court a
quo
is set aside and is substituted with the following:
"The
application be and is hereby dismissed with costs."
SANDURA
JA: I agree
CHEDA
JA: I agree
Coghlan
Welsh & Guest,
appellant's legal practitioners
Manase
and Manase,
respondent's legal practitioners
1.
See Muringi v Air Zimbabwe Corporation & Anor 1997 (2) ZLR 488 (S)
