Tawanda Chimba v Standard Chartered Bank and Munetsi Edson N.O.

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HH 374-2012
HC 3276/12
TAWANDA CHIMBA
versus
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TAWANDA CHIMBA
versus
STANDARD CHARTERED BANK
and
MUNETSI EDSON MBIZI N.O.

HIGH COURT OF ZIMBABWE
PATEL J

Urgent Chamber Application

HARARE, 29 March 2012

Adv. Sibanda, for the applicant
Mr. Moyo, for the 1st respondent

PATEL J: This matter emanates from an alleged theft by the applicant from OK Supermarket in Kwekwe on 9 August 2011. The Branch Manager of the 1st respondent was informed of the alleged theft on 1 November 2011. He asked the applicant for his report which was submitted to him on 14 November 2011. In that report, the applicant stated that there was a mix-up and that he had been discharged by the Kwekwe police. He attached what purported to be a clearance letter from the Officer-in-Charge Crime. It should be noted that the applicant’s letter is dated 12 November 2011 and predates the supposed letter from the police dated 15 November 2011.

As OK Supermarket was still adamant about the alleged theft, the Branch Manager obtained a written report from OK Supermarket on 29 February 2012 and from Safeguard Security on the same day. Both reports were inconsistent with the applicant’s report. The Branch Manager then proceeded to Kwekwe police station and obtained a report dated 3 March 2012 from the Member-in-Charge stating that the applicant had been found guilty and paid a deposit fine on 9 August 2011.

The Branch Manager then formally charged the applicant with theft on 5 March 2012 under sections 4(d) and 6 of the National Employment Code of Conduct Regulations 2006 (S.I. 15 of 2006). The first hearing was scheduled for 9 March 2011. The applicant requested a postponement and the hearing was then rescheduled for 16 March. Prior to that date, on 15 March, the applicant sought a further postponement because his counsel of choice was not available. The matter proceeded in any case on 16 March and applicant’s present counsel put forward a number of preliminary points and objections. The matter was then adjourned to 22 March and on 21 March the applicant produced a doctor’s letter stating that he was unfit for work for 5 days. The hearing was again adjourned to 26 March and then further adjourned sine die pending the outcome of this application.

In the interim, the applicant referred the matter to a Labour Officer on 20 March challenging the jurisdiction of the 1st respondent’s Hearing Officer. The Labour Officer gave the parties notice of a hearing scheduled for 11 April. Additionally, on 21 March, the applicant also filed an application for review before the Labour Court questioning the jurisdiction of the Hearing Officer and his refusal to grant postponements, to hear counsel and to recuse himself.

In the present matter, the applicant seeks an interim order interdicting the respondents from proceeding with the internal disciplinary hearing. He also seeks a final order setting aside the disciplinary hearing commenced on 16 March 2012.

Section 6(1) of the National Employment Code of Conduct Regulations 2006 provides that, where there is good cause to believe that an employee has committed misconduct, the employer may suspend the employee and forthwith serve a letter of suspension stating the reasons therefor. In terms of section 6(2), once the letter of suspension is served, the employer must within 14 working days investigate the matter and conduct a hearing into the alleged misconduct.

Section 101(3)(e) of the Labour Act [Chapter 28:01] stipulates that a code of conduct must provide for notification that proceedings are to be commenced against an employee for any alleged breach of the code. Section 101(5) precludes any Labour Officer from intervening in any matter subject to proceedings under the code. Section 101(6) stipulates that, if the matter is not determined within 30 days of the notification referred to in subsection (3)(e), either party may refer the matter to a Labour Officer for determination.

An application for an interim interdict must, in essence, show unlawful conduct and the violation of a *prima facie* right giving rise to a reasonable apprehension or probability of irreparable harm. This Court has the inherent power to grant interdicts in proper cases. However, it should not ordinarily intervene in matters under the exclusive domain of Labour Officers and the Labour Court under the aegis of the Labour Act and Labour Regulations, unless there are exceptional circumstances warranting such intervention.

In this matter, in my view, good cause to believe that the applicant had committed an act of misconduct only arose on 3 March 2012. This was when the 1st respondent’s Branch Manager received a credible report from Kwekwe police station negating the earlier report presented by the applicant on 14 November 2011 exonerating him from any misconduct. The Branch Manager then formally charged the applicant with misconduct on 5 March 2012.

Ideally, reading section 6 of the 2006 Regulations with section 101(6) of the Act, the employer should investigate and have the allegation of misconduct heard within 14 days of the letter of suspension and thereafter determine the matter within 30 days of the notification of disciplinary proceedings. The two provisions should be read together and construed so as to achieve consistency but, in the event of any inconsistency in practice, the provisions of the Act must prevail.

In *casu*, the Hearing Officer is still seized with the matter because 30 days as from 5 March 2012 (the date of suspension/notification) have not yet elapsed. The applicant has failed to show any unlawful conduct on the part of the 1st respondent or its Hearing Officer or that his procedural rights have been violated. He has also failed to establish the probability of any irreparable harm arising from the internal disciplinary proceedings being continued. As was seemingly conceded by his counsel, in the event that the applicant is found guilty and disciplined or otherwise prejudiced by any decision of the Hearing Officer, he has a right of appeal in terms of the labour laws. The effect of any such appeal would be to suspend any finding of misconduct and the penalty imposed therefor. On these facts, there would be no prejudice whatsoever to the applicant or his rights.

It follows that there cannot possibly be any urgency in this matter until the 30 day period has expired and unless the respondents take any action thereafter that operates to contravene the law. The applicant has approached this Court prematurely and on a purely speculative basis. He is effectively out of court. In any event, he has failed to establish any proper basis for the interim or final relief that he seeks, i.e. staying or setting aside the disciplinary proceedings instituted by the respondents.

As regards costs, it is clear that the applicant has unnecessarily engaged in multiple proceedings – before the Labour Officer, the Labour Court and this Court. It was also patently unnecessary for him to approach this Court in light of the provisions of section 106 of the Labour Act. This urgent chamber application, leapfrogging other matters before this Court, is clearly an abuse of court process.

In the result, this application is dismissed for want of urgency, with costs on a legal practitioner and client scale.

*Uriri Attorneys at law*, applicant’s legal practitioners


Kantor & Immerman, 1st respondent’s legal practitioners
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