Baines Avenue Clinic v Faith Muchenje

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE
20 SEPTEMBER
JUDGMENT NO. LC/H/299/23
CASE NO. LC/H/433/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 20 SEPTEMBER 2023

AND 5 OCTOBER 2023

JUDGMENT NO. LC/H/299/23 CASE NO. LC/H/433/23

IN THE MATTER BETWEEN:-

BAINES AVENUE CLINIC	APPLICANT

AND

FAITH MUCHENJE	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Mr. R. Kadani

For Respondent	Ms T. Barangwe

MURASI J:,

This is an application for leave to appeal to the Supreme Court in terms of section 92 (F) (2) of the Labour Act, (Chapter 28:01).

The matter for determination before the Court is a simple one. Respondent faced allegations of misconduct and a hearing was given. Meanwhile, Respondent attended at a Doctor’s rooms and the Doctor instructed that she take a rest. This was communicated to the Respondent through the Matron who was a senior supervisor at Respondent’s work-station. Meanwhile, Respondent’s representatives approached the Respondent with a view to having the matter postponed to a further date for a hearing. This was not entertained by the Hearing Officer who ruled that the matter was to proceed. The matter was heard in Respondent’s absence.

Respondent made an application for review to this Court. Both parties filed submissions including heads of argument. This Court, upon perusal of the record, was of the view that matter could be dealt on the papers filed of record. The Court proceeded to write a judgment which was delivered on 1st June 2023. Applicant was dissatisfied with the procedure taken by this Court and intends to approach the Supreme Court on appeal. Hence the present application.

Applicant’s prospective grounds of appeal are couched as follows:

The court a quo erred in law by determining the matter on the papers without calling for a hearing or oral arguments from the parties in violation of the Labour Court Rules, 2017, and the principle of audi alterem partem.

The court a quo grossly erred and misdirected itself on the facts and in law in finding that it was procedurally irregular for the hearing officer to proceed with the hearing in the Respondent’s absence, in circumstances where there was no evidence on record before the hearing officer that the Respondent was sick.

At the commencement of the oral submissions, Ms Barangwe stated that she had preliminary issues to raise. The first was that the prospective grounds of appeal were raising procedural issues and not the findings made by the Court and thus were incompetent grounds of appeal. The second was that Applicant had attacked a defective draft notice of appeal as it did not have the judgment or decision of the Court attached to the purported draft notice of appeal. The third was that the relief sought was defective as it referred to an Order when there was no order but a full judgment delivered by the Court.

In response, Mr. Kadani stated that what the Applicant was intent on bringing before the Supreme Court was whether the Court had a discretion to deal with the matter in the manner it did which amounted to a point of law. In respect of the second preliminary point, Mr. Kadani at first stated that the judgment referred to was attached in a separate portion of the application. He thereafter changed course and said:

“I am applying that the particular issue be condoned as it is in the interests of justice.” He later changed this stance again and stated thus:

“I am withdrawing the concession.”

The submissions on this point therefore remain obscured. As far as the third point was concerned, Mr. Kadani reasoned that Applicant was challenging the ‘whole judgment’ and that the Order referred to was a consequence of that judgment. Clearly, the response was confusing as he did not clarify what he meant and sought to state as follows:

“I maintain that the relief sought is competent.”

In respect of the first preliminary point, it was Mr. Kadani’s response that Applicant wanted the Supreme Court to determine whether the Court had the discretion to hear the matter in the manner it did. Clearly this does not come out of the ground of appeal. It therefore is an inference that this is what the Applicant wants the Supreme Court to determine. What comes out of the prospective ground of appeal is a general dissatisfaction with the procedure taken by the Court. It does not help matters that Applicant then avers that this was in ‘violation of the Labour Court Rules, and the principle of audi alteram partem’. Grounds of appeal have to be concise and precise. (See Dr Nobert Kunonga v The Church of the Province of Central Africa SC25/17 per GARWE JA (as he then was)). The preliminary point has to be upheld.

Mr. Kadani left the Court perplexed by his submissions in the respect of the second preliminary point. He clearly made the admission that there was no compliance with the Rules. When he later realized the import of that concession, he sought to resile from that position. It is permissible to change direction. However such behavior is not befitting of an officer of the Court. Clearly, the Applicant did not comply with the rules. The preliminary point is up held.

The explanation tendered by Mr. Kadani in respect of the third preliminary point raised by the Respondent should not detain the Court. To say that Applicant referred to Order in the relief sought because it was ‘a consequence of the judgment’ is the height of mischief’ which however left the preliminary point un-responded to. It is also upheld.

The above determination would result in the application being struck off the roll. However, for completeness, I will proceed to deal with the merits of the matter.

Applicant’s submissions

Mr. Kadani submitted that grounds of appeal have to be on points of law and that the grounds filed by the Applicant raise questions of law. This was whether the Court has the authority to dispose of the matter without hearing the parties. He submitted that the hearing without the parties would be in violation of Rule 28(6) of the Labour Court Rules. He further submitted that the second ground of appeal raises a point of both fact and law.

Mr. Kadani stated that as regards the prospects of success, an applicant should raise an arguable case. When asked by the Court whether, after filing heads of argument, Applicant wanted to make further submissions, Mr. Kadani replied in the positive. Asked further why this was not stated in the Founding Affidavit, he stated that it was generally stated that what the Court had done had deprived the Applicant the right to be heard. Mr. Kadani was unable to state what the Applicant needed to say before the Court apart from what was already contained in the Notice of Response and the heads of argument filed of record.

Respondent’s Submissions

Ms. Barangwe stated that Rule 12 of the Labour Court Rules dealt with the informality of proceedings and that Rule 32 gave the Court a discretion with matters placed before it. She particularly referred to Rule 12 (2) when dealing with the admissibility of evidence. She pointed out that Applicant did not indicate that it wanted to file additional papers and that in terms of Rule 26(6), the record was complete and that Applicant must have been satisfied with the documents it had filed. Ms Barangwe further argued that the parties were ‘heard’ as a hearing did not always encompass giving oral submission but that a determination on the papers amounted to a hearing.

As far as the evidence was concerned, she stated that the ‘sick note’ in respect of the Respondent had been given to the Sister-in-Charge and that to confirm that the Matron was aware of the sickness, the Matron had called the Respondent telephonically enquiring on her sickness. Ms. Barangwe, stated that the said Matron was the Complainant in the hearing and knew that the

Respondent was indisposed and could not attend the hearing. She argued that the application for leave to appeal had no prospects of success and should dismissed.

ANALYSIS

This Court prefaced its decision which is sought to be appealed against in the following manner:

“I have carefully considered the documents filed by both parties and come to the conclusion that I could make a determination of the matter without flouting the audi alteram partem principle. I have taken into consideration that audi alteram partem principle does not necessarily need the oral submissions of the parties concerned. Where parties have filed comprehensive submissions to enable a court to determine a matter, such court may proceed to do so.”

This Court proceeded to cite the Metsola case. Unfortunately, this citation has been taken by Applicant to be the sole reliance by the Court in its judgment. I will not comment further on it.

This Court will first refer to the provisions of the Labour Act, (Chapter 28:01). Section 89 (1) provides:

“(1) The Labour Court shall exercise the following functions-

hearing and determining applications and appeals in terms of this Act or any other enactment; and

…….

……..

(d1) exercise the same powers of review as would be exercisable by the High Court in respect of labour matters;

In the exercise of its functions, the Labour Court may-

in the case of an appeal-

conduct a hearing into the matter or decide it on the record; or.”

It is also common cause that Act 15 of 2015 added section 92EE but without amending section 89 as it relates to reviews. What I want point out is that fact that the Act allows the Court to decide an on the record. The reason the issue of review is not referred to in subsection two is obvious. It is because the issue of jurisdiction in reviews was equated to the jurisdiction of the High Court. What is clear is that statute allows the Court to deal with appeal ‘on the record’. The same statute has not precluded the Court from dealing with reviews ‘on the record’. The principal Act therefore does not outlaw the procedure adopted by the Court. I heard Mr. Kadani to place reliance on Rule 28 (6) of the Labour Court Rules. It provides as follows:

“Once a date becomes available for the hearing of a case, the Registrar shall allocate the date for the case to be heard and shall give the parties notice of the date in Form LC7:”

Clearly the Rule referred to does not resolve the issue raised by the Applicant. It is irrelevant to the determination. It does not proscribe the determination of a matter on the record by a Judge.

In Mugugu vs Police Service Commission and Another 2010 (2) ZLR 185 (H) GOWORA (as she then was) observed thus at 192 D-E:

“Thus the underlying principle in the right to be heard is that of fairness and natural justice in that each person appearing before the administrative body is given an opportunity to put his or her position to that body. An oral hearing is not an absolute necessity, as that may not necessarily mean that the person has been heard, as may happen where the person has been given inadequate notice, is not allowed to present his case or has not been furnished with all the information alleged against him.”

The above position from the Learned Judge was arrived at after reference to the decision of GUBBAY JA (as he then was) in the Metsola Case. It was observed as follows:

“The audi maxim is not a rule of fixed content, but varies with circumstances. In its fullest extent, it may include the right to be appraised of the information and reason underlying the impending decision; to disclosure of material documents; to a public hearing, to appear with legal representation and to examine and cross-examine witnesses.”

What is clear from the above is that what is important is that the principles of fairness have been invoked before a decision is reached.

In casu, Applicant and Respondent filed their pleadings and heads of argument. In terms of Rule 26 (6), the record was complete and further submissions would have to be done with the leave of the Court. In the oral proceedings, the Court enquired of Mr. Kadani whether Applicant wanted to place more information before the Court and the response was in the positive. The answer is clearly not the truth for the following reasons. Firstly, if it was Applicant’s intention to provide further submissions, an application would have been made to the Court to supplement the documents already filed of record. Secondly, assuming Applicant failed or neglected to follow the route prescribed in the Rules, one would expect that the Founding Affidavit would state the nature and the details of the additional information Applicant intended to place before the Court. This was not done. It is trite that an application falls or stands based on facts alleged in the Founding Affidavit.

Having dealt with statute and precedent, it is my view that Applicant has not made out a case which enjoins this Court grant leave to appeal. In Essop vs S (2016) ZASCA 114, it was held as follows:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably conclude differently to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to

be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorized as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

It is thus my considered view that there are no prospects of success on appeal.

In the Circumstances, the application for Leave to Appeal to the Supreme Court is hereby dismissed with costs.

Atherstone & Cook-	Applicant’s legal practitioners Medical Professional and Allied

Workers Union-	Respondent’s representatives.