Bisset Chimhini v T M Supermarkets (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/855/2014
HARARE, 15 OCTOBER, 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/855/2014

HARARE, 15 OCTOBER, 2014 &		     CASE NO LC/REV/H/50/2014

19 DECEMBER 2014

In the matter between:

BISSET CHIMHINI							APPLICANT

Versus

T M SUPERMARKETS (PRIVATE) LIMITED				RESPONDENT

Before The Honourable L F Kudya	:	Judge

For the Applicant	         T Mpofu   (Advocate)

For the Respondent	K Ncube (Legal Practitioner)

KUDYA J:

This is an application for the review of disciplinary proceedings conducted in the applicant’s case on charges levelled against him by the respondent employer.

The background of the matter is that the applicant who was in the respondent’s employment faced certain misconduct charges which necessitated that a disciplinary committee be set up and that a hearing into his matter be conducted. During the course of the disciplinary proceedings the applicant raised a number of objections like the objection to the chairmanship of the committee, the need to have been offered a chance to secure certain evidence to use in his matter before matter could be heard etc. When the objections were overruled the applicant and his counsel walked out of the proceedings resulting in the matter being concluded in his absence.

Aggrieved by the rulings made on the issues which he raised when he was still participating in the hearing proceedings he has filed the review which is the subject matter of this judgment. On the set down date of this review it was apparent from the voluminous heads of arguments filed by both parties that there was a plethora of issues to be determined by this court. It also became apparent then that by that time some of the issue which originally formed point of the review issues had by then been overtaken by events. To that end the court invited the parties that they curtail the proceedings by singling out the issues which at that stage of hearing were no longer issues and setting apart those issues which the parties still felt needed to be decided by the review court. Following the discussion between the parties the issues for determination and those no longer to be determined appeared as below:

Late filing of heads - Non issue condoned by consent.

Answering affidavit – Non issue allowed in by consent.

Non joinder (Issue 1).

Exhaustion of domestic remedies – Non issue – Dropped.

Validity of suspension and notice (Issue 2).

Employee walking out of proceedings. See Moyo v R E A SC-4-14 (Issue 3).

Hearing without documents and requested evidence (Issue 4).

Use of outsiders, Mpofu, Dyk and Committee Chair  (Issue 5)

Validity of opposition – Moxton deposing to affidavit instead of deponent from subsidiary hence making opposition invalid (Issue 6).

It is in the light of the above table of issues that this review application was decided. Each of the review issues will be addressed below.

For convenience and clarity of record the first review issue to be disposed of would be issue 6 as it has the potential effect of making the whole review application a non-opposed application entitling the court to rule on it without the benefit of submissions from the respondent.

Issue 6  -  Validity of Opposition

In this respect the applicant maintained that the application was effectively unopposed due to the fact that one Moxton the Chief Executive Officer (“CEO”) of Meikles Holdings deposed to the affidavit founding the opposition to the review application. The argument was that for the opposition to be valid the deponent should have been a person from the respondent company taking into account the fact that the respondent is a separate legal persona from the holding body. It was also argued that Moxton deposed to the affidavit in his capacity as CEO hence he had no personal or direct knowledge of what pertained to the matter between the parties which was at hand.

In response to that argument the respondent maintained that the opposition was valid at law notwithstanding the fact that Moxton deposed to the affidavit as the CEO of the broader arm of the respondent that is the holding company.

That a subsidiary company and a holding company have separate legal status is settled at law and does not deserve any restatement. What needs only to be decided is whether it is irregular for a CEO to depose to facts pertaining to the subsidiary to which naturally he has no day to day dealings with. A reading of Moxton’s affidavit reads in its opening paragraph that what he deposes to is true and correct to “the best of my knowledge, information and belief” underlining is mine. It is patently clear from the underlined words that what Moxton deposed to is what he knew not necessarily from personal encounter but even from being advised as such hence the elaboration that to the best of the information that he had. That puts him squarely within the picture of the issues between the parties. To that extent there is nothing remiss about the opposing affidavit. The argument about it being bad at law being without foundation should therefore fail.

Issue 1 (Non joinder)

The argument advanced by the applicant here is that the proceedings against the applicant were defective to the extent that the failure to join the chairperson of the disciplinary committee was fatal. The law is clear that a committee sits at the behest of the employer and nowhere in the law is it peremptory that the hearing officer should be joined as a party to authenticate the proceeding. This argument also lacking in merit should also fail.

Issue 2  Validity of Suspension and Notice

The applicant argued that the applicant’s suspension and notice to attend disciplinary proceedings was invalid for the fact that these were done by one Dyk a person who the applicant says is not appropriately one of the respondent’s personnel. On the other hand the respondent maintains that Dyk was one of its functionaries and whatever he did, he did so under their mandate. It is clear that the respondent associates itself with anything that could flow from the actions of its functionaries.

It is noteworthy that a reading of the law on validity of suspensions does not stipulate that this must be given by a particular officer in the organisation. What is critical is that it should meet the criteria of setting out why and how it has been issued and that suffices for the suspended person’s needs. The court is therefore satisfied that whilst Dyk’s link with the respondent may not be to the satisfaction of the applicant that alone does not invalidate the suspension and the notice. This ground also lacking in merit should also fail.

Issue 3  Employee walking out

In this regard the applicant maintains that whilst the law is settled as in the case of Moyo v Rea SC-4-14 that an employee who walks out of a hearing takes the risk of failing to challenge that which occurred in his absence. His argument is that the case is inapplicable to the facts of his matter. This is so because what he seeks to challenge is what happened when he was still within the hearing. It is indeed apparent that the review is based on what happened at the time when the applicant was still within the hearing. The argument that the review is well placed is to that end merited and this aspect should succeed.

Issue 4  Hearing without documents and evidence

The applicant argues that the matter is reviewable in so far as he was denied the chance to first have the evidence and documents he intended to use in his matter instead of having them at a later stage after leading witnesses which would have been academic only. The respondent argued that such a course of action was adopted by the chair after realising that matter had delayed previously at the behest of the applicant hence in her view it was prudent that the matter proceed without the benefit of the documents and exhibits. One of the tenets of the right to be heard is that a party should be afforded a chance to present and put to use all the necessary evidence in his case.

In the instant case it is clear that the guilt or otherwise of the applicant was premised on the laptop and other documents which he requested to be availed first before witnesses could be led. It is regrettable that the request was made at the eleventh hour but since it was the critical component of the case it was imperative that he should have been afforded the chance to have that evidence and exhibits first before witnesses could be led.

It would have been very difficult to expect the applicant to refresh his memory from nowhere about events which had occurred a while earlier than the proceedings. It is clear that the chairperson erred in this respect and the denial had the effect of prejudicing the applicant’s defence. It is however settled law that where there is a procedural irregularity that should not be ignored but be put right Nyahuma v Barclays SC-67-05.

It is therefore from that view point that the court is satisfied that this issue is indeed a good ground for review and remedy lies in remitting the matter for the irregularly to be cured.

Issue 5 Use of outsiders

The applicant took great exception to the presence of Dyk, Mpofu and the chairperson of the disciplinary committee. As regards Dyk the argument is that he was not sufficiently embedded within the respondent’s structures to be endowed with the powers to suspend or deal with anything at the applicant’s hearing. As regards Mpofu argument centred around his status as a lawyer or para lawyer for the respondent thus creating the impression that he had been brought in to ensure that the applicant is dismissed. In essence the applicant argued that his insufficient lawyer status tainted the proceedings to the extent that him as one of the participants thereof was a fraud hence tainting the proceedings with illegality.

As regards the chairperson of the disciplinary committee the argument was that she was hired to fire the applicant because she was being paid for her services by the respondent and also when she was contracted the applicant had not been notified about the decision to so contract her. It was therefore the applicant’s argument that by virtue of being in receipt of payment for chairing the committee the chairperson thus had an agenda to dismiss the respondent and was biased to that extent.

On the other hand, the respondent maintained that Dyk, was one of its members hence its mandate to let him suspend and notify the applicant of the impending disciplinary proceedings. As for Mpofu the respondent styled him its consultant and the verbiage about his advocate or non-advocate status were in the respondent’s view were of no moment as all he was called to do was to prosecute or present the respondent’s case only. As regards Moyo the respondent maintained that it was legally permissible for it to get an outsider to conduct the proceedings if it felt that by the nature of the applicant’s position none from within its structures could deal with the task. It argued that payment for the services was inconsequential as the person had been brought in as an impartial person and there was no obligation for the respondent to consult the employee first before engaging her.

In its view therefore the argument that she was based and had an agenda to dismiss the applicant was thus misplaced. The law is clear that only persons legally entitled to participate in proceedings should do so. If it is discovered that elements calculated to diminish the right of party to be heard become part of the proceedings that has an effect of vitiating the proceedings. In the instant case the involvement of Dyk was sufficiently explained by the respondent hence the fact that the applicant was uncomfortable with his participation becomes of no moment in the matter. As for Mpofu it need be noted that if his participation was calculated to lead the applicant to believe that he was what he claimed to be then that would put him within the ambit of what is frowned upon by law. The consequence of that would be that the proceeding would have to be done afresh without his involvement. As for the chairperson legally speaking there was nothing remiss by the respondent engaging her and paying her for her services as the law allows that.

What however seemed remiss about her was her desire to deal with the matter without affording the applicant the chance to access the exhibits to use in his case and her utterances of how well she thought she know of Mpofu’s credentials. Indeed the perception of bias in those circumstances can surely be formed. It is therefore clear that this ground to a great extent is merited and remedy is to have the proceedings done properly afresh.

It is ordered that:

Application for review being merited to some extent it be and is hereby allowed. The order dismissing the applicant is therefore set aside and in its place the respondent is ordered to have the matter re-heard within three months of this order in a procedurally correct manner failing which the applicant will be deemed to be reinstated to his position with full pay and benefits from the date of his suspension.

Each party to bear its own costs.

Mawere & Sibanda, applicant’s legal practitioners

Gill Godlonton & Gerrans, respondent’s legal practitioners