Collin Ruvango v Scanlink (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 31 MAY, 2023
JUDGMENT NO. LC/H/242/23
CASE NO. LC/H/116/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 31 MAY, 2023

AND 29 AUGUST, 2023

In the matter between

JUDGMENT NO. LC/H/242/23 CASE NO. LC/H/116/23

COLLIN RUVANGO	Applicant

Versus

SCANLINK (PVT) Ltd	Respondent

Before The Honorable L. Hove, Judge:

For Applicant	: MR.K Ncube

For Respondent	: Mr.A.K. Maguchu

HOVE J:

This is an application for review.

The applicant was employed by the respondent as a general manager. A dispute arose over the manner in which his personal issue vehicle had been purchased. As a result of which the applicant was suspended and later invited to a disciplinary hearing. He was found guilty after the proceedings had been conducted in his absence and he was dismissed.

The Applicant’s case

The applicant alleges, in his founding affidavit, that he went on leave from office in January, 2023.

When he came back from leave, he found that his office had been locked. He could not gain access to his office. His lawyers enquired with the respondent, and he was, told that he had been dismissed from employment. His lawyers requested for the minutes of the disciplinary proceedings and these were not availed to him. A second request for the record of proceedings was made to no avail.

The applicant submitted that he was purportedly dismissed in terms of a decision that was made by one A. Rutanhira, an external hearing officer. The proceedings were in terms of SI 15/2006. The applicant avers that there is no provision in terms of that Statutory Instrument that provides for an external hearing officer. He submitted that the proceedings were irregular.

Secondly, the applicant argues that, even if it were to be assumed that the proceedings did occur, they were flawed because;

The applicant discussed with the group internal audit manager over a phone call about the impeding hearing and she indicated that the problem could be resolved between the applicant and the Chief Executive Officer. She promised to arrange the meeting on the strength of that discussion, the applicant assumed that the hearing would not proceed on 15 December 2022.

He was however called on the day of the hearing and advised that the hearing was about to proceed. He states that he then asked telephonically for a postponement to enable him to prepare for the hearing. He was not advised whether the request for a postponement was granted. He argues that the failure to grant him a postponement constituted a gross irregularity in the proceedings under the circumstances.

The failure to avail him the minutes of the hearing shows that there was never any hearing.

On the merits, he avers that it was not true that he purchased the vehicle without authority since the Chief Financial officer was aware and approved the purchase.

The applicant also outlined how he had been victimized and how the fact that H Mutashe was both the complainant and prosecutor made the proceedings irregular.

The appellant also argued that the respondent did not suffer any prejudice. That the hearing was a shun and the hearing was to justify his dismissal.

In his application for review, the applicant avers;

that the external hearing authority was not authorized in terms of the applicable statutory instrument and the proceedings are a nullity.

that the respondent denied him the opportunity to present his defense.

that he had been advised that there would be a meeting to iron out differences and had assumed that the hearing was not to proceed on the 15th. By proceeding with the hearing, the applicant’s right to be heard was violated.

the refusal to grant a postponement on the 15th was another violation of the Rules of Natural justice

there was never a hearing as the respondent could not produce the minutes of the hearing.

The application was opposed. The respondent stated that the applicant was entitled to a motor vehicle as part of his employment benefits. The applicant got an approval from the Chief Executive Officer and the Chief finance Officer to purchase the vehicle. He then proceeded to purchase the vehicle without following all the formalities that go with the purchase of a company asset. It is alleged that the vehicle was registered in his personal name though all its expenses were paid by the respondent. The applicant’s superior enquired as to the circumstance surrounding the purchase of the vehicle. The applicant was not forth coming, he did not want to explain himself to his immediate superior. He was eventually suspended for failing to obey lawful instructions and for any act of conduct or omission inconsistent with the fulfilment of express or implied conditions of his employment.

It was specifically alleged that;

On the 12th November 2022, I instructed you in my capacity as the executive head of logistics and automotive cluster to furnish me with a report/document setting out whether the group procurement policies had been complied with in the purchase of a Toyota prado motor vehicl using funds from the ministry of defense (MOD) transaction. You acknowledged receipt of the letter but in your response failed or opted to comply with the instruction and outline whether the procurement policies had been complied with.

Contrary to policy, you procured a Toyota prado motor vehicle using prepayment funds from the ministry of defense (MOD) transaction before the full execution of the transaction. The value of the prado rendered the purchase subject to written approval by the finance manager, general manager, head of cluster, group finance manager, group finance officer and the group CEO. You however did not obtain such approval before the purchase.

The applicant responded and said the suspension letter and invitation for disciplinary hearing was a nullity. He ignored the suspension and continued to report for duty.

The respondent appointed a Mr Rutanhira to preside over the hearing. The hearing was conducted on 15 December 2022. The applicant was not in attendance and he was found guilty and dismissed. The respondent denied that it had locked out the applicant but merely implemented the decision to dismiss him.

The Issues:

The main issues before the court were;

`whether or not Mr Rutanhira had the authority to preside over the disciplinary proceedings, and

whether or not the applicant had been denied the right to be heard, whether or not the rules of Natural Justice had been flouted.

Analysis:

Whether or not the external hearing officer could preside over the applicant’s disciplinary hearing.

The applicant’s argument is that in terms of section 6 of SI 15/06 he could not be properly tried by a person who was not the employer or employer’s representative or a disciplinary authority. This meant that Mr. Rutanhira had no authority to discipline him. That an external hearing officer is unheard of and unknown at Law. That Mr. Rutanhira had no authority and no jurisdiction, as a result, his decision had no legal validity and should be set aside. In support of his argument, the applicant referred the court to the provisions of section 6 (4) (b) of SI 15/06. The Section provides as follows;

“at a hearing in terms of subsection (2) an employee shall have the right to;

….

appear in person before the employee or the employer’s representative or disciplinary authority as the case maybe and be represented by either a fellow employee…”

It was argued that in terms of the quoted section, the appellant had the right to be tried by the respondent, the respondent’s representative, a disciplinary committee or a disciplinary authority. He had no duty to submit to the jurisdiction of an external hearing officer. The applicant made reference to two Labour Court Judgements; Lake Crocodiles t/a Padenga Holdings v Sibanda and another LC/H/1/15 and Damison v D.Atukwa and anor LC/H/07/21 wherein the court decided that a person or body which was not clothed with the power to determine issues which fall for

determination had no legal authority and all his or its actions or deeds were a legal nullity. Reference was also made to the case of Sable Chemical Industries Limited v Easterbrook SC 18/10 where the court, while acknowledging the need for flexibility, emphasized that there still remained the need for a fair hearing and in particular for the audi alteram partem rule to be observed.

The respondent, in response, referred the court to the case of Madziyauswa v ZFC Ltd & anor SC73/15 where the court held that;

“a disciplinary authority on the other hand can mean a person or a committee dealing with disciplinary matters at the workplace and its composition is not indicated by the code of conduct…. the discretion granted to the employer under the national code of conduct thus allows the employer to look outside the workplace for the persons constituting the disciplinary authority.”

It is clear therefore that since the national code of conduct did not list who could compose or be part of the disciplinary authority or represent the employer, the employer was at large in selecting the disciplinary authority. It could pick a person from within its work force or outside its workforce as was the case in Madziyauswa case (supra). The supreme court held that this was acceptable. In paragraphs 3,10 and 11 of the decision, the external hearing officer described himself as a disciplinary authority. It is evident from the record that Mr Rutanhira acted as a disciplinary authority. There is no cogent reason to dispute how Mr Rutanhira described himself and we can also not dispute the fact that he was sourced from without the workplace. He is an external hearing officer who acted as a disciplinary authority, nothing therefore turns on him signing himself off as an external hearing officer. The respondent was well within its rights to appoint someone external to be the disciplinary authority. The respondent acted within its rights and the applicant had the right to submit himself to the jurisdiction of the external hearing officer in terms of the Madziyauswa case (supra).

Whether or not the respondent failed to conduct a fair hearing? Whether or not respondent violated the principles of natural justice or, in other words, the right to a fair hearing.

The respondent did not dispute the authorities on the right to be heard which were made reference to in the applicant’s heads of arguments. It submitted however, that the right to be heard is not an absolute immutable rule of law as it was capable of being waived by a beneficiary. The court was referred to the case of Masvikeni v National Blood Services Zimbabwe SC 28/19 and ZESA Enterprises (pvt) Ltd v Stefano SC 29/2017 where the court held as follows;

“the right to be heard is however not an absolute immutable rule of law, it can be waived where the beneficiary is at fault.”

The applicant was invited to a hearing by the respondent when it suspended him. He ignored the suspension and the notice for hearing, and wrote back and stated that he did not recognize the suspension and the notice of hearing as it was a nullity. He stated that he would not act upon invalid careless letters.

When the group internal audit manager intervened, the applicant stated that, as a result of the discussion, he assumed the hearing was not going to be proceeded with. He does not say that he was advised that there would be no hearing but repeatedly states under oath that he ASSUMED that there would be no hearing. But even if his later version that he was told that the meeting would not proceed was to be accepted, the applicant should have proceeded to the hearing and sought for a postponement before the disciplinary authority. He alleges that he sought for a postponement telephonically. A postponement is sought before the disciplinary authority and not to a colleague

over the phone. The applicant simply did not take the notice to attend the hearing seriously. He decided to disregard it and did not take the need to appear and formally seek a postponement seriously.

Deciding to deliberately absent oneself from a disciplinary hearing after notice of such hearing has been properly given is denying oneself the right to be heard. In supreme court has in several of its decisions stated that where a litigant, with full knowledge on the hearing date, decides not to show up, he loses his right to be heard and to contest the outcome of the proceedings he would have snubbed. He cannot contest the hearing and the outcome. He loses that right to be heard by making a deliberate decision to ignore the hearing.

The applicant never sought a postponement before the disciplinary authority. He argued that the postponement was denied. The facts tell a different story. He never bothered to make a formal application before the disciplinary authority. He merely told his colleague to have the matter postponed. This is not the way to deal with duly scheduled disciplinary proceedings. He was not denied the right to be heard, he denied himself that right. He treated the whole process with contempt and failed to properly safeguard his interest. He has no one but himself to blame.

The application for review is thus without merit and must be dismissed. The following order is made;

Order:

The application for review be and is hereby dismissed with each party bearing its own costs.

BY THE J U D G E