Bright Gunzo v Zimbabwe Revenue Authority & 3 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/121/23
HARARE, 30 MARCH 2023
CASE NO. LC/H/1096/22
AND 28APRIL 2023
JUDGMENT NO LC/H/…./23
CASE NO. LC/H/1096/22
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IN THE LABOUR COURT OF ZIMBABWE          JUDGMENT NO LC/H/121/23

HARARE,  30 MARCH 2023                                       CASE  NO. LC/H/1096/22

AND 28APRIL 2023

In the matter between :

BRIGHT GUNZO							APPLICANT

And

ZIMBABWE REVENUE AUTHORITY				1ST RESPONDENT

And

Mr JOEY SHUMBAMHINI N.O.					2ND RESPONDENT

And
MR L. PESWA DUBE N.O.				           3RD RESPONDENT

And
MR ERNEST MASVAIRE N.O.					4TH RESPONDENT

For the Applicant 	: Mr A. K. Maguchu (Legal Practitioner)

For All Respondents	: Mr H. Muromba (Legal Practitioner)

MAKAMURE J:

This is an application for review. It is opposed. Parties had preliminary issues to raise, however they were abandoned at the commencement of the proceedings.

Three grounds for review are raised. They are as follows:

(a)	The Disciplinary Committee presided over and determined a disciplinary matter

over which it had lost jurisdiction by operation of Section 101(6) and/or by agreement

(b)	The Disciplinary Committee effectively denied the Applicant his right to legal representation by insisting on hearing the matter despite the justified absence of Applicant’s attorney adequate time to prepare for the hearing.

(c)	The Disciplinary Committee erred procedurally by proceeding to hear the merits of the matter without determining procedural issues raised by the Applicant  and which Applicant alleged disposed of the matter without need to consider the merits.’

Background

The applicant is a former employee of the 1st respondent. He was charged with various acts of misconduct leading to his dismissal on one of them after some of the charges were overturned in the internal appeal. 2nd to 4th respondents appear in their official capacities as office holders of the first respondent who played roles in the disciplinary process. The applicant was aggrieved by the process leading to his dismissal hence the present application.

Facts

On 12 July 2022 the respondent suspended the applicant from duty with pay and benefits. This was in terms of s10.1 of the applicable employment code.

On 26 August 2022 the 1st respondent preferred charges against the applicant in terms of a letter which reads as follows in part:

‘RE:	MISCONDUCT CHARGE AND SUSPENSION

MISCONDUCT CHARGES

The Zimbabwe Revenue Authority ( “ZIMRA”/”the Employer”) has good cause to believe that you have committed acts of misconduct warranting disciplinary action in terms of Section 12B (2) of the Labour Act [Chapter 28:01] as read with the ZIMRA Employment Code of Conduct

In particular, you are charged with the following acts of misconduct:

Carrying out an act which is inconsistent with the express or implied conditions of the contract of employment- Group D- Most Serious Offences- Category 25 (3Counts)

Refusal to obey a lawful order or instruction given by a person in Authority-Group D Most Serious Offences-Category 21(1)

…

C	Suspension

6.	Accordingly, and in terms of Clause 10.1(ii) of the ZIMRA Employment Code of Conduct, you are hereby suspended without pay and benefits with effect from the 29th of August 2022. This suspension is necessary to avoid any interference with potential witnesses and evidence and also to curtail any possibility of misconduct on your part. To this end you are directed to surrender to Loss Control, no later than 29 August 2022, any assets in your possession belonging to the employer. …

F. 	Date of hearing

9.	You are hereby notified to attend a hearing in accordance with the provisions of the ZIMRA Employment Code of Conduct scheduled as follows;

9.1	Date: 02 September 2022

Time: 09:30am

9.3	Place: 7th Floor Boardroom, ZB Centre

10.	The disciplinary procedure will, inter alia, be as follows:

10.1	 Please confirm your attendance of the disciplinary hearing before the date of the hearing set out herein above.

10.2 	At the disciplinary hearing you will have the following rights;

10.2.1	 You have a right to respond, question or call witnesses of your own choice;

10.2.2	 Should you require an interpreter, please kindly arrange for one at your expense;’ (My underlining for emphasis).

A day before the date of hearing, that is on the 1st of September 2022 the applicant’s

Legal practitioners of record wrote two letters in connection with the date of hearing. One was written to the Ministry of Public Service Labour and Social Welfare (the Ministry) (page 57 of the record). In the letter to the Ministry the applicant’s legal practitioners were referring the matter to the Ministry in terms of S101(6) of the Act drawing the Ministry’s attention to the assertion that a period of thirty (30) days had passed before the matter was concluded. The other letter (page 62-63 of the record) was written to the 1st respondent. In the letter to the 1st respondent the applicant was asking for a new date for hearing along the following lines:

‘RE: 	DISCIPLINARY HEARING: - BRIGHT GUNZO

We represent Bright Gunzo and please ensure that all future correspondence relating to this matter is channelled through our offices.

Our client instructs us with, among other things, your letters dated 12 July 2022 and 26 August 2022 respectively. It is clear that despite all its vast resources, ZIMRA needed in excess of a month to gather evidence against our client. Strangely, ZIMRA expects our client to gather his own evidence within three (3) days.

Please note that to enable us to defend our client, we ask for the following;

That the employer furnishes us with documents/information listed in annexure “A” hereto.

That our client be allowed access to his office, his computer and emails. This may be done under supervision.

That we be allowed to interview persons listed in annexure”B” hereto. Our client is certain that they each have information that will assist in arriving at the truth in this matter.

Naturally, as a result of these requests, the matter set for the 2nd of September 2022 at 0930 may not proceed. In any case, the writer is unavailable on that date due to prior commitments. (W) E ask that you provide us with a new hearing date due to the factors pointed above.  (Emphasis added).

…’

(Signed)

What is important to note at this juncture is that the applicant through his legal practitioners referred the matter to a labour officer in terms of s101 (6) of the Act. This, he was entitled to do. However, on the very same date he wrote the1st respondent seeking a postponement. This request was for various reasons which seem legitimate. So the question to ask is: was he opting to have the matter determined by a labour officer OR attend the hearing at the workplace in terms of his request for a postponement?

The respondent’s legal practitioners responded to the applicant’s letter dated 1st

September 2022 (page 60 of the record). (I take note of the date of that letter. The letter from the respondent’s legal practitioners is dated 24 August 2022 and it is responding to a letter written on behalf of the applicant, on or dated 1st September 2022.) The respondent’s legal practitioners acceded to the requests from the applicant which were contained in that letter of 1st September 2022.

On 4th October 2022 the, applicant’s legal practitioners once again referred the matter

to a labour officer in terms of s101 (6) of the Act. They were calculating the period of thirty (30) days from 26 August 2022. Meanwhile the disciplinary proceedings commenced on 2nd September 2022 and were postponed to 21st September 2022, on the 21st of September 2022 they were postponed to the 4th of October 2022.On the 4th of October 2022 they were postponed to the 13th of October 2022. On the 13th of October 2022 Mr Maguchu who was handling the matter sent a colleague, Ms Makumbe to go and seek yet another postponement. The reason was that Mr Maguchu was appearing at the Labour Court in Bulawayo. In support of the application for postponement a court roll from that Court was produced. The Court roll showed the matters which were set down for hearing and the Judge(s) hearing these matters. There was no proof as to which matter Mr Maguchu was representing a party. The Disciplinary Committee dismissed the application. Ms Makumbe therefore requested for two hours in order for her to prepare. This was granted. Thereafter the matter was heard.

When the matter resumed for hearing on that same date, Ms Makumbe raised a

preliminary point to the effect that the Disciplinary Committee had lost jurisdiction and the applicant matter had since been referred to a labour officer. The application was opposed. The Committee heard the parties ruled that it still had jurisdiction (p80). The preliminary point was therefore dismissed. The matter was there after heard on the merits.

At the conclusion of the hearing the applicant was convicted of all the offences which he was facing. He was penalised with dismissal. He appealed internally in terms of the applicable code of conduct. The Appeals Committee upheld conviction on the first count,’ D25- Carrying out any act inconsistent with the express or implied conditions of the contract of employment’, but upset convictions with respect to the other charges. The penalty for D25 is dismissal. What this means is that the applicant remained guilty and dismissed from employment.

The position of the applicant before this Court is that the Lower Tribunal lost jurisdiction to hear the matter since the matter had been referred to a labour officer. As was noted earlier the Lower Tribunal deliberated on this issue and concluded that it still had jurisdiction to hear the matter.

The Law

Section 92EE of the Act provides for review before this Court as follows:

’92 EE Grounds of review by Labour Court

(1) 	Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection with is Act may be brought on review before the Labour Court shall be—

(a) 	absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

(b) 	interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned:

(c)             gross irregularity in the proceedings or the decision of the arbitrator or

adjudicating authority concerned.

(2) 	Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.’

Having had guidance from the Act on what should be brought before this court, I now turn to provisions of the applicable code. As is common cause, this matter was determined in terms of provisions of the applicable code. The relevant provisions are reproduced below.

’10.     SUSPENSION FROM DUTY

10.1 	Depending on the evidence available, the employee may be suspended in writing with or without pay and benefits, until the Disciplinary and Grievance Committee makes a decision as follows:

(i)	 With pay and benefits:

Group A offences- fourth offence

Group B offences- third offence

Group C offences-second offence

(ii) 	Without pay and benefits:

Group D offences- first offence’

When the facts of this matter are looked at and matched with provisions of the employment code, they reveal that when the appellant was initially suspended on 12 July 2022 this was to pave way for investigations. Then on 26 August 2022 misconduct charges were levelled against him and he was suspended without pay and benefits as provided for in the employment code. Once again I turn to the Act. Section 101 subsections (3)(e), (5) and (6) of the Act provide as follows:

‘(3) 	An employment code shall provide for—

(a) to (d)…

(e) the notification to any person who is alleged to have breached the

employment code that proceedings are to be commenced against him in respect of the alleged breach;

(f) to (g)…

(4) 	…

(5) 	Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) 	If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.’

The provisions are very clear. Where and when a matter is being dealt with in terms of an employment code, a labour officer has got no jurisdiction to deal with the matter. However, should a matter be commenced in terms of the applicable employment code but for some reason is not finalized, either party may refer the matter to a labour officer as shown above. In the present matter, after the respondent had completed investigations, and on 26 August 2022, it notified the applicant that a hearing against him would be held on the 2nd of September 2022. When the hearing was to commence there were various postponements all at the instance of the applicant till the 13th of October 2022. On that date an application for postponement was made on behalf of the applicant. That application was declined after the Committee had listened to both parties. That particular date had been suggested by the applicant. The matter was adjourned to give counsel for the applicant time to prepare for the hearing.

When the hearing resumed, the applicant raised a preliminary issue to the effect that the Committee had lost jurisdiction to hear the matter since a period of thirty days had passed before the matter had been concluded. The preliminary issue was considered .It was dismissed. I observe at this point that while a preliminary point can be raised at any time during proceedings, this same issue could have been raised at the commencement of the proceedings at the same time when the application for postponement was made. The two issues could have been dealt with together instead of stalling progress each time the Committee was set to start. This was also taken note of by the Chairperson (page 79 of the record).Further on the 4th of October when the Committee sat, the same issue of loss of jurisdiction to hear the matter had been raised. Parties made submissions on it and the Committee deliberated on it. At page 75 of the record the Chairperson of the Committee said the following (in part):

“Good morning .I welcome you back to this hearing. Last time we had adjourned because the defendant had asked to make a submission on the preliminary point in writing. The submission was received last Friday…The Tribunal made a finding that it still had jurisdiction and will proceed to hear the matter on the merits. Any reactions?”

This is how counsel for the applicant (then defendant) responded:

“Thank you very much. We note the ruling that has been made. The important issue is that we have an application we want to make. It is an application for postponement because the defendant’s representative, Mr Maguchu is unavailable today…”

After the above discussions parties agreed that the matter would be heard on the 13th of October 2022.From what is on record, there was no need for the applicant to raise the question of loss of jurisdiction since this issue had already been decided on.

Before this Court

Applicant’s position.

When parties addressed the Court, Mr Maguchu argued that with respect to the first ground for review, the respondent lost jurisdiction to deal with the matter. This it was argued, was because by the 4th of October when hearing of the matter was to commence, a period of more than thirty days had passed. It was argued that there is no law prohibiting a referral in terms of s101 of the Act if parties agree to it. Further the argument continued, the Act simply refers to the absence of a decision. In the result it was submitted on behalf of the applicant that the referral was lawful and the employer had lost jurisdiction to determine the matter.

On the second ground for review Mr Maguchu argued that the applicant was denied legal representation of his choice. He argued that the applicant’s legal practitioner of choice was in Bulawayo. A court roll showing cases that were to be heard that day, Annexure “M” was used in support of this assertion.

With respect to the third ground for review it was argued that the lower tribunal did not decide the preliminary issue which was placed before it before proceeding to hear the merits. It was further argued that the lower tribunal could not ignore the preliminary point as that point had the capacity to dispose of the matter. It was prayed on behalf of the applicant that the application for review be granted with costs.

Respondents’ Position

Mr Muromba who appeared on behalf of the respondents submitted that the lower tribunal applied its mind to both referrals and also dealt with the second referral. Mr Muromba argued that there was never a time when the respondents’ legal practitioners agreed to have that matter referred to a labour officer. Mr Muromba argued that a discussion which was held between that parties while they were at the offices of the labour officer was being misconstrued. Mr Muromba submitted that the first ground had no merit.

On ground two Mr Muromba argued that there was no proof of set down produced before the lower tribunal as proof that the applicant’ s legal practitioner of choice was appearing before the Bulawayo Labour Court. It was argued that a court roll lists the cases and judges hearing such cases and that it does not show lawyers who appear on behalf of parties. It was argued that when an application for postponement is made, it can be granted or denied. Further where an application for a postponement is made, the tribunal exercises its discretion. Where such discretion is exercised and an application is declined, the legal practitioner present had to deal with the matter. In the present matter the application was declined. The legal practitioner who was present requested and was granted two hours to go and prepare for the hearing.

With respect to the third ground for review, Mr Muromba argued that there was only one preliminary point raised and that such preliminary point was addressed. It was Mr Muromba’s prayer that the review application had no merit and ought to be dismissed with costs.

Mr Muromba referred the Court to authority which included the following cases : Living Waters Seminary v Reverend Ngoni Chikwanha SC 59/21; Standard Chartered Bank v Samuel Mapuranga (no citation) ; Gershum Hombarume v Zimbabwe Revenue Authority SC 24/10; ZESA Enterprises v Stevawo SC 29/17.

In response Mr Maguchu referred the Court to the case of Rwodzi v Municipality of Chegutu HH 86/ 03 and made the point that the audi alteram partem rule must be observed. He was emphasising the validity of the first ground of appeal. Mr Maguchu averred that with respect to the second ground of review, the legal practitioner was not prepared and for that reason the Court was urged to uphold the second ground of appeal. Mr Maguchu further averred that the failure by the Committee to make a decision on an issue raised by a party was an error at law. Finally Mr Maguchu submitted that all the grounds for review had merit and the application ought to succeed.

Analysis

The question to ask was the thirty- day period referred to in s 101(6) of the Act exceeded before the matter was concluded? If it was exceeded why? It is important to note that the Disciplinary committee applied its mind to both letters of referral to the labour officer.

On the 13th of October 2022 when the hearing finally commenced after a series of postponements, firstly an application for postponement was made on behalf of the applicant and secondly a preliminary point that the Committee had lost jurisdiction to hear the matter was raised on behalf of the applicant (page 76 of the record). On the application for a further postponement the Chairperson of the Committee drew the parties’ attention to the fact that on the previous or last postponement the position that had been agreed on was that the hearing would proceed. On this day the 13th October 2022, Ms Makumbe who once again appeared on behalf of the respondent indicated that Mr Maguchu had a matter at the Labour Court ,Bulawayo and that the Bulawayo matter had not been diarised. Further Mr Maguchu had not instructed anyone to appear before the Committee because there had been a development that the matter would be heard by a labour officer. In response to this Mr Bhebhe who appeared for the respondent pointed out to the Committee that, that particular postponement would be the fourth request and Mr Bhebhe listed the previous three requests which had been made on behalf of the applicant and duly granted. Further the particular date, acccording to Mr Bhebhe, the 13th had been suggested by the defendant. Further still in between the last sitting and the 13th, parties had occasion to meet at the offices of the labour officer. Thereat Mr Maguchu who was present, did not indicate that he would not be available to appear on the agreed date, 13th of October 2022. Mr Bhebhe also pointed out with respect to court attendance, that notices to attend court are not given a day before the hearing, but that they are given at least five days before the hearing and so Mr Maguchu had sufficient time within which to advise the Committee and the other party that he would not be available.

Firstly, by the 2nd of September which was the initial date set for the hearing, the respondent had his mind already made up to seek a postponement. He needed time to adequately prepare for the hearing. At the same time he also referred the matter to a labour officer in terms of s 101(6) of the Act. On 21st September 2022 the applicant raised a preliminary point that the Committee had lost jurisdiction to hear the matter. Parties deliberated on that issue. The respondent’s position was that the period of 30 days had not passed.

In considering whether or not the thirty -day period had passed, it is on record that the applicant was on 26th August 2022 notified to attend the hearing which would be held on 2nd September 2022. When the applicant raised loss of jurisdiction as a preliminary point, the Committee ruled that it still had jurisdiction. I agree. From the 26th of August 2022 to the 21st of September 2022, from a simple calculation, a period of thirty days had not passed.

In Living Waters Theological Seminary v Reverend Ngoni Chikwanha SC 59/21 the Supreme Court stated as follows:

‘In terms of s 101(5) a labour officer is not allowed to intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings. In terms of s 101(6) if a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer the dispute or unfair labour practice to a labour officer, for conciliation or referral to arbitration in terms of s 93. It is important to note that reference is made to s 93 which clearly limits the labour officer’s jurisdiction to conciliation and referrals to arbitration. The notification referred to in s 101 (3) (e) is notification of a hearing. The labour officer can therefore exercise his jurisdiction in terms of s 93 if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration. He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) was interpreted by this Court in Watyoka v ZUPCO (Northern Division) 2006 (2) ZLR 170 (S). At p 172F-G, the Court said:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(a)	the matter must not be one that is liable to be the subject of proceedings under a code of conduct;

(b)	the matter has not been determined within thirty days of the date of notification;

(c)	where the parties to the dispute request and are agreed on the issues in dispute (s 93(1)(ii)).”’

I respectfully associate myself with what the Supreme Court stated in the Living Waters case (above).

In the present case, conditions under which a matter can be referred to the labour officer can hardly be said to have been met, whether the referral date be the 1st  of September 2022 or the 4th of October 2022. This is said in view of the fact that :(i) the matter was being considered in terms of a code of conduct (ii)a period of thirty days had not lapsed before the matter was concluded (iii)  the referrals appear to have taken the other party by surprise, so under the circumstances the parties did not agree and (iv) the cause of the delay resulting in the allegation of lapse of the thirty-day period lay squarely on the shoulders of the applicant. The applicant cannot blame the Committee for a delay which he caused. In answer to the question that I posed above, the period of thirty days was not exceeded. If it had been exceeded, it would have been the fault of the applicant. What this means is that the lower tribunal had jurisdiction to determine the matter.

Secondly, the impression created by the applicant by referring a matter to a labour officer while at the same time seeking a postponement in order to adequately prepare does not appear to have been done in good faith. The applicant had to choose one course of action and show genuineness in the choice made.  The applicant appeared to be blowing hot and cold. See Peter Kazingizi and Anor v Equity Properties (Pvt) Ltd.

Thirdly, this matter was being conducted in terms of ZIMRA’s code of conduct. The periods set in that code had to be adhered to before one could look for remedies from the labour officer in terms of s101(6) of the Act. S101(6) is there to ensure expeditious resolution of labour disputes in deserving cases especially where there does not appear to be willingness on one of the parties to have the matter concluded. Further it must be appreciated that this section does not operate in a vacuum. It operates among real people who are involved in labour disputes. The practical circumstances of each case must of necessity be considered in order for simple justice between man and man to be achieved. In the present case all postponements were at the instance of the applicant. Within reason, they were granted. The last request for postponement before the lower tribunal was declined, not without reason. There was no proof that Mr Maguchu, the applicant’s legal practitioner of choice was engaged at the Labour Court, Bulawayo. The legal practitioner who ended up appearing on the date of hearing had appeared before, seeking a postponement on behalf of Mr Maguchu. So, there was ample time for them to have familiarised themselves with the matter. This, was particularly so since it was the respondent who had suggested the date of the next sitting. Further still, an application for a postponement is exactly what it says – an application. This means that it can either be granted or declined. Whoever makes an application must be prepared for the consequences .This therefore cannot be the fault of the Committee. It is interesting to note that the legal practitioner was prepared to raise a preliminary and argue it in a case which they were not familiar with. This casts doubt on the assertion that the applicant was prejudiced because his legal practitioner of choice did not argue the matter.

Having stated the above, I find that the Disciplinary Committee had jurisdiction to hear and determine the matter. I also find that there was no justifiable absence of the applicant’s legal practitioner of choice. I find further that under the circumstances the applicant was not denied the right to legal representation. Further as regards the procedural issue raised on behalf of the applicant, it was adequately considered and the applicant‘s own legal practitioner duly noted the decision of the Disciplinary Committee on that issue.

Conclusion

In view of the foregoing, I find that there is no merit in all the grounds for review. The application for review has got no merit, it must fail.

Accordingly it is ordered that:

The application for review be and is hereby dismissed with costs.

Maguchu and Muchada, Applicant’ Legal Practitioners.

Kantor & Immerman,    Respondent’s Legal Practitioners.