Bindura Nickel Corporation v Francis Madyirapanze

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 20 JUNE, 2023
JUDGMENT NO. LC/H/278/23
CASE NO. LC/H/103/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 20 JUNE, 2023

AND 20 SEPTEMBER, 2023

In the matter between:-

JUDGMENT NO. LC/H/278/23 CASE NO. LC/H/103/23

BINDURA NICKEL CORPORATION	Applicant

Versus

FRANCIS MADYIRAPANZE	Respondent

Before The Honourable L. Hove, Judge:

For Appellant	: Matsikidze Attorneys at Law

For Respondent	: Chimuka Mafunga Commercial Attorneys

HOVE J:

This is an application for leave to appeal this Court’s Judgement to the Supreme Court.

BACKGROUND:

A brief background of the facts of this case is as follows;

The applicant employed the respondent before charging him with acts of misconduct, finding him guilty and dismissing him from employment.

The respondent was aggrieved with the decision to find him guilty and to dismiss him. He referred the matter to the Labour Court on review. The main grievance raised by the respondent in the review application was that the presiding officer of the disciplinary committee had misdirected himself when he sought to clarify certain issues with the complaint and consulted and clarified the issues in private with the complaint outside the disciplinary proceedings.

The respondent argued that his right to a fair hearing had been breached. He was denied the opportunity to hear the clarifications which were sought by the presiding officer and to cross examine on those points should it have become necessary.

The Labour Court in its Judgement No. LC/H/22/3 agreed with the respondent and found that the right to a fair hearing had been denied.

The applicant in casu was aggrieved by the Labour Court’s decision and seeks leave to appeal to the

Supreme Court.

Its first ground of appeal raises the point that since the parties are governed by a code of conduct which allows the presiding officer to conduct the hearing in the manner that he did. It was wrong for the Court to hold such conduct as a denial of the right to a fair hearing. The provision of the code of conduct relied upon provides as follows;

“(e) if during the course of the hearing, the Hearing official on his own initiative or at the request of the employee or his representative finds it necessary to obtain further information, the case shall be adjourned to allow further investigations

(f) having satisfied himself that he has all the facts, the hearing official will invite the

representatives of the employee, if present, to comment.”

The respondent opposes the first intend ground of appeal on the basis that the Labour Court cannot sanction a process that is inherently unfair and impedes a party’s right to a fair hearing. The Court could not sanction a hearing that flouts the principles of natural Justice. It was further argued that the Labour Court is mandated in terms of the Labour Act [chapter 28:01] (the Act) to do justice between the parties.

If an employee cannot participate in a hearing process that will accord him the right to be present and to participate in the hearing process, all of it, not just certain aspects of the hearing, the Court can in terms of section 2A ensure the protection of such employee’s right to natural Justice. The court is mandated to ensure the Just resolution of disputes in terms of Section 2A of the Act. A process that is unjust in the sense that an employee cannot hear evidence for or against him and

denies the principles of natural justice can indeed not be sanctioned by the Court. It is for this reason that I am not persuaded that the applicant’s prospects of success are good.

The position of law is that leave should be granted where there are good prospects of success.

In Chikurunhe v Zimbabwe Financial Holdings SC 10/08 relied on by the applicant, the Court held that;

“the party seeking leave must show inter alia that he has prospects of success on appeal”

Further and in any event, the section of the code does not say a hearing officer shall himself conduct the further investigations. Neither does it say the investigations shall be conducted privately in the absence of the concerned employee. Allowing him to adjourn proceedings for purposes of himself conducting further investigations would be manifestly unfair, unjust and contrary to principles of natural Justice.

Subsection (f) of section 2.5.3 is not speaking to the manner of conducting further investigations, but to what the presiding officer should do after obtaining the further information. There is nothing in the section relied on that bars the presence of the employee during the further investigations.

Interpreting the section otherwise would make a nonsense of the right to a fair hearing.

It is for this reason again that, I am not persuaded that the applicant enjoys good prospects of success on appeal.

The second ground of appeal alleges that the Court erred in remitting the matter to a ‘disciplinary committee’ when the code refers to a “hearing officer “.

The parties throughout the proceedings, referred to the hearing officer as a disciplinary committee.

This cannot give rise to misdirection which is so grossly unreasonable so as to amount to a misdirection in law. The misdirection must be so grossly unreasonable in the manner described in the case of Hama v National Railways 1996 (1) ZLR 664 Zimbabwe where in the Court stated that;

“the general rule of the law, as regards nationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trail court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion. Bitcoin v Rosenberg 1936 AD 380 at 395—7; Secretary of State for Education and Science v Metropolitan Borough of Tameside G [1976] 3 ALL ER 665 (CA) AT 671e—h; Council of Service Unions v Minister for the Civil Service, supra, at 951a—b; PF-ZAPU v Minister of Justice, Legal and Parliamentary Affairs (2) 1985 (1) ZLR 305 (S) AT 326—G. ”

It can therefore not be said that the court in writing the words “disciplinary committee instead of “hearing officer” made a factual finding which is so grossly unreasonable that it defies logic. This is not a factual finding. At most it can be said to be an error that is common to both sides and can be corrected in terms of section 92C of the Act. The second ground of appeal is not challenging any point of law neither does it seek to challenge any factual finding that is so grossly unreasonable. On appeal the applicant does not have good prospects of success.

The grounds of appeal do not raise points of law and an error is not a factual finding made by the court. But even if it was, it is not so gross as to amount to a point of law. It cannot be said to be a gross misdirection on the facts. There is, therefore no prospects of success in the intended appeal.

In the result therefore, the following order becomes appropriate;

ORDER:

The application being without merit it be and is hereby dismissed with costs.