Brian Bandason v Karanda Mission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/328/13
HELD AT HARARE 4TH JULY 2013
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/328/13

HELD AT HARARE4TH JULY 2013		     CASE NO LC/H/976/12

In the matter between:-

BRIAN BANDASON					Appellant

And

KARANDA MISSION					Respondent

Before The Honourable P Muzofa, President

For Appellant		L Kagurabadza (Legal Practitioner)

For Respondent		S Bhebhe (Legal Practitioner)

MUZOFA, P:

The Appellant appeals against the Respondent’s decision to dismiss him.

Appellant was employed as a general nurse by the Respondent.  During his tenure of employment it was alleged that Appellant had committed acts of misconduct.  More specifically it was alleged that he issued fake receipts to the Respondent’s clients, accepted payment from such clients and converted the money to his own use.    He was charged in terms of the Health Services Regulations 2006, he was found guilty and dismissed from the Respondent’s employment.  Appellant appeals against the Respondent’s decision on the following grounds:-

That the Appellant was unfairly dismissed as he was summarily dismissed and never afforded a right to be heard.

That the Respondent violated section 2A of the Labour Act Chapter 28:01 by failing to give Appellant a hearing before dismissal thereby undermining social justice.

That the tenets of natural justice of audi partem rule were violated by the Respondent.

That the Respondent charged Appellant using the Health Services Regulations 2006, yet dismissed him according to the moral code contract of the Respondent.  Therefore the Respondent’s actions were unprocedural.

The appeal was opposed and Respondent raised three points in limine namely

That the appeal is out of time therefore fails to comply with the Labour Court Rules.

That the Appellant had not exhausted local remedies available to him before approaching this Honourable Court.

The appeal raises procedural as opposed to substantive objections and accordingly must have been brought by way of review instead of appeal.

I propose to deal with the points raised in limine in their order as presented before this court first.

That the appeal is out of time

It was submitted on behalf of the Respondent that the appeal was noted after 210 days.  In terms of Rule 15 of the Labour Court Rule, 2006

“A person wishing to appeal against any decision determination … or a question of law in connection with any arbitral award in terms of section 98 (10) of the Act shall within twenty-one days from the date when the Appellant receives the decision, determination or direction or award.”

This rule is applicable where the decision appealed against was made  by an arbitrator.   In casu, the decision was made by the employer in terms of the Health Services Regulations 2006. Part VIII of the Health Services Regulations which deals with the disciplinary procedure provides for appeals to the Labour Court Section 52 of the Regulations provides that

“A member who is aggrieved by a determination or penalty imposed or a decision of the Board in terms of section 51 may within fourteen days of being notified of such decision, appeal against the decision to the Labour Court.”

In my opinion Appellant was supposed to follow the procedures as laid down in the Regulations.  Applying the time frame allowed for an appeal to these facts, the Appellant was indeed out of time and did not apply for condonation.

Appellant’s legal representative submitted that the Appellant noted an appeal to the Hospital Board in June whose response was received on 21 November 2012 he then noted an appeal on the 6th of December 2012 to this Court within the required time frame.  I will deal with the issue of the appeal first .  Appellant alleges he noted an appeal to the Chairman/Hospital Board, although the letter was not produced in Court.  This was an incorrect procedure.  Section  51 of the Regulations provides for appeals to the Board from a disciplinary authority.  The Board referred to here is the Board as defined in the Health Services Act [Chapter 28:01] which is defined in section 2 thereof as

“‘Board’ means the Health Service Board established in terms of section 3”.

The Appellant did not appeal to the Board as contemplated by the Regulations.  His appeal to the Chairman was not an appeal at all.  Therefore the Appellant appeals against the decision of the disciplinary hearing communicated to him on the 13th of April 2013.  Noting an appeal in December certainly was hopelessly out of time.  This point in limine therefore succeeds.

That the Appellant did not exhaust the local remedies.

Indeed Appellant as stated before did not note an appeal with the Health Services Board, therefore he did not exhaust local remedies.  The Appellant’s legal representative did not submit anything on this aspect.  This Court was referred to the cases of Girjar Services (Pvt) Ltd v Mudzingwa 1991 (1) ZLR 243 and Murowa Diamonds v Union Makumbe SC 16/09 being authority that where there are domestic remedies capable of providing effective redress in respect of the complaint, “a litigant should exhaust his domestic remedies before approaching the Courts unless there are good reasons for not doing so”.  In this case there was no reason advanced for not approaching the Health Services Board.  This Court believes there is merit in the assertion by the Respondent and therefore this appeal is not properly before this Court.

The Appellant’s recourse is to note an appeal with the Board and in terms of Section 51 of the Health Services Regulations the Board has the powers to

“2… confirm the determination or penalty or refer the matter back to the disciplinary authority for

Re-determination; or

Further hearing or

Further investigation.”

I believe the Board is capable of providing effective redress in respect of this matter.  This point in limine  also succeeds.

That the Appellant’s grounds of appeal challenge the procedural and not the substantive issues.

In the documents filed of record the Appellant does not explicitly challenge that he was liable but challenges the process.  The Appellant’s representative submitted before this Court that Respondent did not prove that Appellant had committed the alleged offence.  However there were no details to substantiate this submission.  The Appellant’s prayer was that this Court set aside the Respondent’s decision  and that he be reinstated.  The Court queried this prayer in light on the grounds of appeal.  The Appellant’s representative conceded that the appropriate order should be that the matter be remitted to the Respondent to hear the matter in accordance with the Health Regulations.  It is trite law that procedural challenges ought to be brought by way of review as opposed to an appeal see R.G. Mavhunga v ZESA Holdings (Pvt) Ltd LC/H/31/12.  The Appellant in all the grounds of appeal challenges the procedure adopted by the Respondent in reaching the decision to dismiss him.

A perusal of the documents filed of record show that indeed there was no hearing.  The Appellant was not given an opportunity to cross-examine the witness and also state his side of the story.  Such irregularities do  not lead to an acquittal but this Court is guided by the ruling in the case of Air Zimbabwe (Pvt) Ltd v Chiku Mnensa SC 89/04.  In that case it was held that

“A person guilty of misconduct should not escape the consequences of his misdeed simply because of a failure to conduct disciplinary proceedings properly by another employee.  He should escape such consequences because he is innocent.”

Therefore Appellant cannot be reinstated simply because Respondent failed to comply with the Health Regulations.

All the points in limine raised by Respondent have merit. The Appellant has an option to approach the Health Services Board appealing against the Respondent’s decision.  This appeal is not properly before this Court and therefore it should be dismissed.

Accordingly it is ordered that

The appeal be and is hereby dismissed with costs.

Bherebhende Law Chambers, Appellant’s Legal Practitioners

Kantor & Immerman, Respondent’s Legal Practitioners