Caroline Chirata v Stanbic Bank Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/137/2021
HARARE, 1 JULY 2021
CASE NO. LC/H/27/20
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/137/2021

HARARE, 1 JULY 2021	                                      CASE NO. LC/H/REV/12/21

AND 10 SEPTEMBER 2021

In the matter between:-

CAROLINE CHIRATA						Applicant

And

STANBIC BANK ZIMBABWE LIMITED			Respondent

Before Honourable B.S. Chidziva, Judge

For the Applicant	:	Mr J. Marimo (Trade Unionist)

For the Respondent:	Mr A. Moyo & Mr G. Sithole (Legal Practitioners)

CHIDZIVA, J:

This is an application for review against the Appeals Officer’s decision whereby he dismissed the Applicant’s internal appeal against the decision of the Hearing Officer.

The brief facts of the matter are that applicant who was employed by the Respondent as a Sourcing Specialist Manager in the Procurement Department was charged and found guilty of contravening section 4 (a) of the National Employment Code SI 15/2006. It was alleged that she committed “any act of conduct on omission inconsistent with the fulfilment of the express or implied conditions of his or her conduct.

The allegations against her are that she misrepresented audit information that was requested by internal auditors by altering the dates and contents of e-mails sent to internal and external stakeholders.

The matter was postponed on a number of occasions up until the 14th of October 2019 when it was agreed that:

“the respondent should provide a written response if she would be unable to attend the next meeting and the hearing could proceed in her absence.”

On the 30th October 2019 Applicant was notified in writing that the matter was going to proceed on the 5th of November 2019. She was further reminded that if she was not attending she was to file her response in writing. On the 5th of November 2019 the applicant did not appear in the hearing neither did she submit any written response.  The matter then proceeded in her absence.

The grounds for review before this court are as follows:

(1).	The Appeals Officer erred when he proceeded to hear the appeal when he was of the same level of seniority with the hearing officer.

(2).	The Appeals Officer grossly misdirected himself when he failed to note that the Hearing Officer’s decision to proceed with a hearing on the 5th of November 2019 in the absence of the Appellant and her representatives violated Appellant’s right to be heard and rendered the entire hearing void.

(3).	The Appeals Officer grossly erred and misdirected himself when he ruled that the opportunity to cross – examine the witnesses was provided but the Appellant chose not to act upon it.

(4).	The Appeals officer erred when he failed to note that the written response to witness Albert Kalupi and Cecelea Fungira’s Statement’s by Appellant had no time frames and would not fulfil requirement for a substantive defense to the charges that were laid against her.

(5).	Further and in any event the Appeals Officer further erred when he failed to note that a request by the Hearing Officer of written response to witnesses statements during the hearing forms part of the investigation process which is done before the hearing.

In response the Respondent submitted that:

(i).	Applicant had submitted improper grounds of appeal.

(ii).	Applicant waived her right to challenge the outcome of the disciplinary

Proceedings.

(iii).	There was no irregularity in the proceedings.

What is to be decided in this case is:

(i).	Whether or not applicant was denied the right to be heard.

(ii).	Whether or not the Respondent erred by appointing an Appeals

Officer who was at the same level of seniority with the Hearing Officer.

Whether or not applicant was denied the right to be heard

The record of proceedings shows that prior to 26 September 2019 there were a number of postponements which are chronicled as follows.

(a).	5 March 2019 the applicant did not appear but Mr Marimo applied for the recusal of the Hearing Officer which application was granted on 28 March 2019 Applicant approached the Labour Officer who referred the matter back to the Hearing Officer on 30 August 2019.

(b).	On 25 September 2019 which was the second hearing the Applicant did not appear but Mr Marimo indicated that he could proceed in the absence of his client Mr Marimo failed to appear and sent someone who indicated that Mr Marimo was engaged somewhere. The matter was then postponed to 26 September 2019.

(c).	On 26 September 2019 Mr Marimo appeared in the absence of his client. He indicated that he could proceed in her absence. He asked for detailed list of the charges and evidence that would be used. The documents were tendered and the allegations were explained. Mr Marimo was given the chance to cross – examine the complainant. He even requested that the auditor should be called for cross – examination so that she could clarify certain issues that needed answers. He further indicated that the Applicant would be available on 30 September 2019.

(d).	On 14 October 2019 – Mr Marimo appeared in the absence of her client and indicated that she was not feeling well. However there was no evidence to prove that Mr Marimo further indicated that Applicant would submit her comments to the witness’s statements during her defence submission. It was then agreed that she could furnish her response in writing if she was not able to attend on the next hearing date.

(e)	On 5 November 2019 the applicant and her representative did not appear despite the fact that a reminder had been send on 30 October 2019. In the reminder it was stated that:

“As was agreed on the last hearing date in the event that Caroline is not able to attend the hearing she should file her detailed responses to the contents of the statements”

The applicant did not appear neither did she file any written responses as ordered in the previous hearing. The hearing officer then proceeded to conclude the matter as shown on page 70 – 73 of the disciplinary minutes which stated that:

“Having noted that Caroline Chirata and her representatives had not availed themselves for the hearing even after due notice and warning had been given. The Hearing Officer advised that the meeting should proceed.”

It is clear from the history of the matter that Applicant was not denied the opportunity to present her case and to cross examine witnesses. She is the one who failed to attend the disciplinary hearing.

In the case of ZESA ENTERPRISES (PVT) LTD v ALOYCE ROY STEVAWO SC 61/16 it was held that:

“Where a person wilfully defaults from attending a disciplinary hearing he or she would have waived the right to challenge the conduct of the proceedings.”

Applicant by failing to appear at the hearing and to submit a written response to the allegations she waived her right to challenge the conduct of the disciplinary proceedings.

Her claim that she was denied her right to be heard can  not stand.

Whether or not Respondent erred by appointing an Appeals officer who was at the same level of seniority with the Hearing Officer

Section 8 (1) of SI 15 of 2006 of the Code states that:

“Depending on the size and circumstances of an establishment or a workplace, an employer may appoint a person in his or her employment as an Appeals Officer.”

This provision in my view gives the employer the discretion to appoint anyone to be an appeals officer Professor Madhuku in his book LABOUR LAW IN ZIMBABWE at page 29 states that:

“… Section 6 (4) (b) provides that a hearing may be conducted by the employee or employer’s representative or disciplinary authority. This suggests that it is permissible for the employer to appoint a representative to investigate the matter and conduct a hearing into the alleged misconduct. The expression “employer representative” is not defined but maybe safely taken to its ordinary signification of any person who is duly authorised by the employer. There is nothing to suggests that this must be restricted to a Senior Manager or person of authority in the employer’s enterprise. What is material is that the person acting as representative has the full authority of the employer…”

The Appeals Officer in this case was appointed to discharge the employer’s duties. He had the authority from the Respondent to preside over the appeal. All that he was required to do was to discharge his duties in a fair and impartial manner. This was clearly stated in the case of Musarira v Anglo American 2005 (2) ZLR 267 where it was stated that:

“What is important is that the misconduct matters are dealt with in a manner that is fair and impartial and that the rules of natural justice are followed. The rules of natural justice in such a case are that the party concerned – (a) must be given adequate notice : (b) must be heard or be able to present his/her side of the story and (c) should be allowed to call witnesses if he/she so wishes”

In my view the appeals officer had the authority to preside over the matter. The Applicant was given the chance to attend the hearing and present her side of the story but she decided to waive that right.

To that end therefore, I find that the application lacks merit. I therefore order as follows:

(i)	The application for review be and is hereby dismissed with

costs.

Kantor & Immerman, Respondents’ Legal Practitioners