Charles T S Makoni v Chegutu Municipality

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/160/2014
HARARE, 5 MARCH 2014 &
CASE NO LC/H/213/2005
28 MARCH 2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO LC/H/160/2014

HARARE, 5 MARCH 2014 &			CASE NO LC/H/213/2005

28 MARCH 2014

In the matter between:

CHARLES T S MAKONI					APPELLANT

Versus

CHEGUTU MUNICIPALITY				RESPONDENT

Before the Honourable L Kudya  :   Judge

For the Appellant		H Chitima (Legal Practitioner)

For the Respondent		C Warara (Legal Practitioner)

KUDYA J:

This is an appeal against the respondent council’s decision to dismiss the appellant employee following allegations of embezzlement of council funds at a time when the appellant was in employment as an accounts clerk.

Facts of the case are that in 2003 the appellant who was in the respondent’s employ was suspended from work without pay on allegations of engaging in unauthorised activities. He was later reinstated.

In 2004 he was subsequently invited to appear before a disciplinary committee to answer fraud allegations where it was alleged that he had abused funds which had/were paid into council by the ratepayers. At the time of the invitation the appellant was also facing criminal charges on the same matter. As part of his bail conditions, the appellant was not allowed to get to or near the respondent’s office or to communicate with the witnesses. Resultantly when he was invited to attend the hearing he indicated that he was ill disposed to do so given the operational bail conditions. He maintained that stance even after the respondent had tried to secure a venue way from the offices which the criminal court had barred him from accessing.

His argument remained that since he was told not to be in contact with witnesses it would be a breach of his bail conditions to attend at the proposed venue. Ultimately the appellant received correspondence telling him that he had been dismissed from work on the fraud allegations and such a decision had been made in his default as he had not availed himself for the proceedings in question.

Aggrieved by the dismissal he appealed internally without success till he appealed to the Labour Court where the appeal which is the subject of this judgment was subsequently heard on the merits.

The basic grounds of appeal which the appellant relied on were that:

No hearing took place;

Person who dismissed him had no legal authority to do so and

Charges against him were invalid as he was not directly implicated on the matter.

In response the respondent maintained that:

A hearing did take place hence the decision to dismiss which was communicated to him and against which he is now appealing.

Person who dismissed the appellant had legal authority to do so having been so mandated by the Town Clerk in terms of the Urban Council’s Act;

The charges against the appellant were valid as borne out by the evidence which showed that he had indeed abused the rate payers money notwithstanding his acquittal by the criminal court. Standard of proof in labour matter being only on a balance of probabilities it was the respondent’s view that the appellant’s guilt was adequately proven.

In the result the respondent prayed for the dismissal of the appeal with costs where the appellant persisted in his prayer that he be reinstated to his original position without loss of pay and benefits.

At the outset of the hearing the matter presented with the problem that the minutes of the hearing giving rise to the appellant’s dismissal were unavailable. Efforts were made from 2012 when the matter was originally set down up to 5 March 2014 when the matter was finally heard, to have the minutes availed. These remained outstanding with the respondent giving varying responses that efforts were being made to get the same but in vain.

For expediency it was ultimately agreed upon by the parties that the matter be concluded without those minutes. In the result the merits of the case were attended to without the minutes in question. On that point the appellant maintained that the absence of the minutes gave credence to his argument that no proper hearing took place in his matter and to that end the rules of natural justice were not followed as regards his dismissal hence the request to be reinstated which he lodged with the court.

On the other hand the respondent was adamant that a hearing took place even though there is no record of such in the file. Its argument is that if that were not so then the dismissal would not have had any origin.

A careful scrutiny of the positions laid out by the parties on the issue of the record make the appellant’s story more probable than that given by the respondent. This is so because even if the appellant did not avail self for the hearing as alleged by the respondent there was need for a record before the court of how the dismissal was arrived at. In the absence of such the impression created is that the dismissal was plucked from nowhere without due process and the court cannot sanction such.

The law is clear as to how an employee should be dismissed and where that is not followed the result cannot be said to accord with the dictates of justice. In fact there is nothing on the record to show how the respondent arrived at the dismissal penalty. To that extent the appellant cannot be faulted to conclude that such actions on the respondent’s part demonstrate that no hearing took place.

It would thus be naïve for the respondent to seek to suggest that the appellant waived his right to be heard by not presenting self at a hearing which has no evidence on record that it ever took place. The court is convinced that the appellant’s first ground of appeal has merit and this ground should thus be allowed.

In the same spirit there arose at the outset the issue of the propriety of the appeal and its timeliness. The respondent argued that appeal was noted in 2009 yet the appellant was dismissed in 2005. It is however apparent from the record covers before the court that the appeal commenced in 2005 even though there is no clear evidence why another document stamped 2009 purporting to be another notice of appeal had to be issued and served.

On the strength of the 2005 case number and the impressions on the whole record the court is satisfied that appeal was made within time and the point on it being out of time raised by the respondent is thus of no moment and should fall away.

A further argument addressed by the respondent is that even if the court were to accept that the appeal was properly before it, it had to dismiss it on the basis that it did not raise parts of law to found on appeal or to demonstrate gross unreasonableness justifying interference by an appellate court. See Nyahondo v Hokonya1997 (2) ZLR 475 (SC).

It is important to note that in the absence of a record of the proceedings founding the instant appeal the court is at large to conclude that no hearing took place and that finding on its own is fatal to the respondent’s dismissal.

The niceties of sufficiency of evidence or otherwise can not be commented upon without the record in question. In the result all that can be said about the matter is that since the technical error went to the root of the matter the dismissal can therefore not be made to stand.

On a side note it is worth noting that during the submissions the appellant at one point to raised issues which were not on the record and the respondent objected to that. The court sustained the objection and said would give reasons in the main judgment. The brief reason is that allowing the appellant to use the line of argument that he sought to use would take the other party by surprise and naturally prejudice it as it would not have had the opportunity to delve deeper into the issue now being raised.

Going back to the issue of powers of the dismissing officer this isintricately linked to the issue of the record of the hearing which the respondent failed to avail hence court cannot make a meaningful pronouncement on this argument.For what it is worth this can only be addressed once the record issue is settled.

Having concluded that the dismissal was bad at law as it is not clear how it was arrived at, the next question is what is the remedy. The case of Air Zimbabwe v MnensaSC-89-04 indicates clearly that reinstatement is not for the taking.Where the employer is of the strong view that the appellant has a case to answer,the remedy is to put right the anomaly complained about. In the instant case the anomaly is to be rectified and this entails the remittal of the matter to the respondent for a re-hearing in a procedurally correct manner. The appellant remains suspended until the re-hearing has been done.

IT IS ORDERED THAT

The appeal being with merit, it be and is hereby upheld with costs.

The order dismissing the appellant is set aside and the matter is remitted to the respondent to hear the matter afresh in a procedurally correct manner within three months of the receipt of this order,failing which the appellant would be deemed to be reinstated to his original position without loss of pay and benefits from the day of his suspension or alternatively to an order for damages in place of reinstatement, quantum to be agreed upon by parties or set by the court.

Mbidzo, Muchadehama & Makoni, appellant’s legal practitioners

Warara & Associates, respondent’s legal practitioners