Daniel Bande v Suncrest Chickens

IN THE LABOUR COURT OF ZIMBABWE                JUDGMENT NO. LC/H/313/2013
HELD AT HARARE ON 27 MARCH, 2013            CASE NO. LC/ H/14/2009
In the matter between



DANIEL BANDE                           –              Appellant
And

SUNCREST CHICKENS                      –              Respondent




Before The Honourable L. Kudya, President
For Appellant      - M. Chimhoga (Legal Practitioner)
For Respondent     - S. Bhebhe (Legal Practitioner)




KUDYA, L.

      This is an appeal against the decision of the Respondent’s Disciplinary

Committee where it found the Appellant guilty of being absent from work for

more than 5 days without reasonable excuse and subsequently dismissed him.



The case has a long history of default judgments, rescission, striking off of the

matter and at one point a withdrawal of the matter when there were efforts to

have the matter settled out of court. The history being what it is, it is pertinent

to note that it is only in the instant case that this case has been heard on the

merits. It is hoped that this judgment marks the end of the appearance of the

parties at the Labour Court unlike what has been happening previously where

they had almost become permanent patrons of this court.
                                                    JUDGMENT NO. LC/H/313/2013




      The facts of this matter are quite simple. The Appellant was brought

before a Disciplinary Committee at his workplace on 30 January 2009 where it

was alleged that he had breached the Respondent’s Code of Conduct in that, he

had absented himself from work for more than 5 days without a reasonable

excuse. Appellant admitted that he had absented himself from work indeed but

an intermittent days not consecutive days as alleged by the Respondent.



    He argued that, his absence was occasioned by the fact that he had failed to

raise the requisite transport fares to and from work. Besides, he says that he

was no longer getting the transport allowance which he used to get or

alternatively the transport arrangement which used to be availed to him

previously. Since these events occurred at the peak of inflation in 2008 he

argues that he found himself in a state where he could not do anything else to

get himself to work as he had depleted all his resources.



    Further to that, he says he had made all the efforts to bring his plight to the

attention of his employers whom he took it that they sympathized with his

situation. However, to the contrary, he says they went on to charge him with

this offence and dismissed him from work. It is that dismissal which irked him

resulting in him coming to the Labour Court to seek redress on his case.



   He maintains two major arguments that is; that his defaulting work was with

reasonable excuse and he had communicated same to his superiors. He also

argues that the disciplinary process conducted at the Respondent’s workplace

was fundamentally flawed to the extent that the person who chaired the


                                                                                  2
                                                    JUDGMENT NO. LC/H/313/2013


proceedings was both the judge and prosecutor of the case given the position

he occupied.



    In essence he argued that, the chairperson is the one who had charged him

with the offence, interrogated the matter, chaired it and also answered some of

the questions as a witness to the Respondent’s case.         To that extent, the

Appellant was of the view that his rights to a fair trial were breached and in his

view he was thus entitled to his reinstatement or alternatively payment of

damages in place of the reinstatement.



      On the other hand, the Respondent maintained that the argument of

hyperinflation used by the Appellant was flawed as it was not peculiar to him for

the period in question. It maintained that not withstanding the harsh economic

conditions and his    non -receipt of the transport allowance it was imperative

that he attended work where he drew his salary from. It also argued that, the

Appellant was given his day in court in that charges were put to him and he was

given that chance to present his side of the story. H was allowed to be legally

represented, was allowed to cross examine witnesses, to              present his

submissions and finally, a well reasoned judgment was made in the

circumstances.



     For clarity of record it is important that the issues raised by the appeal be

dealt with separately each in turn.



1) Fair hearing-bias- Chairman interested party




                                                                                 3
                                                     JUDGMENT NO. LC/H/313/2013


      It is pertinent to note that this is clearly a reviewable ground and not a

ground for appeal. Since the Act and the Rules provide for separate procedures

in respect of reviews and appeals this ground ought to have come in clear

review proceedings. However a reading of all the paper s on record including

the heads of argument by both counsels there is nowhere, where objection was

taken on the issue of mixing the review and appeal issues. To that extent the

court took it that both parties were comfortable in having the issue dealt with as

it stands in the mixed procedures.



   The law is clear that where procedural irregularities are raise and proven the

remedy lies in the correction of the procedural flaw at remittal on a re-hearing

of the case in a procedurally correct fashion or the error being corrected by the

appellate court. See case of Tichawana Nyahuma vs Barclays Bank SC 67/05.

Further to that, the test of bias is as cited by Appellant’s counsel in the case of

Bailey vs Health Professions of Zimbabwe 1993(2) ZLR 17 (SC) as to whether

there is “real danger of bias” in a particular matter. Over and above these legal

principles, the court has to be satisfied that the irregularity complained of is one

which caused the Appellant to suffer prejudice. Where such is not proven there

may be no relief available to the offended party.



      Applying the above legal principles to the facts of the instant case,

Appellant argues that the Chairperson played multiple roles in the case thus

prejudicing him in the conduct of his defence. A reading of the record for

proceedings shows that issues around the transport allowance which Appellant

raised were meant to the responded to by the Chairperson but given the role

which he occupied then it was not practical for the Appellant to cross examine


                                                                                  4
                                                     JUDGMENT NO. LC/H/313/2013


him. That in the court’s view put a strain on the exercise of rights to a fair trial

by the Appellant.



   It is however sad that even observing that there was such an anomaly in the

composition of the committee together with the junior workers representative

who Appellant claims were present, he however did not challenge the

participation of all those players.   That failure gave the impression that he

acquiesced to the composition and he cannot cry foul at this stage.



    It is patently clear that his cross examination of the Chairperson would have

been hampered by the chairman‘s position in the proceedings yet that evidence

was vital to the case. However for him to raise this argument at this stage

sounds like an afterthought and the court is not persuaded by it. In the result,

the court is of the view that since Appellant acquiesced with the composition of

the tribunal he lost his rights by design and cannot expect the court to come to

his assistance




2) Absence from duty without lawful excuse

      This is the major part of the issue which was between the parties.

Appellant concedes absenting self from duty but says it was due to the

Respondent’s failure to provide him with the requisite transport allowance.

Respondent in all its papers and submissions did not dispute that fact that

Appellant was not given the transport allowance.




                                                                                   5
                                                      JUDGMENT NO. LC/H/313/2013


     The court takes judicial notice of the fact that when this infraction occurred

this was a very difficult year for employers and employees alike.             If the

Respondent found it difficult to pay Appellant his transport dues or to make

alternative transport arrangements it would be stretching one’s imagination too

far to have expected the employee in turn to source transport fees without

difficulty.



   In respect of this reasoning, the Disciplinary Committee erred in the exercise

of its discretion by failing to construe the non- availability of transport allowance

to the Appellant as a reasonable excuse for his absence at work. To that extent,

its finding in this respect cannot be made to stand. Where the exercise of

discretion by a lower tribunal has been shown to be outrageous the appeal

court is mandated to set aside the decision See case of Nyahondo vs Hokonya

1997(2) ZLR 475(SC) The instant case is one such case, and it deserves to be

upset for the considerations stated above. To that extent the appeal should

succeed on this point.



3) Penalty

       Authorities cited by both counsel on the type of penalty to be meted out

in such a case are all well placed and do not deserve a restatement. What the

court however needs to mention is the fact that, if the court had been satisfied

that the Appellant’s guilt was proven it would then have been obliged to go

deeper into whether dismissal or a lesser penalty was well placed in this case.



   Since this court has already ruled that the guilt finding was unsustainable the

issue of penalty becomes an academic exercise which this court is of the view


                                                                                   6
                                                   JUDGMENT NO. LC/H/313/2013


that it serves no meaningful purpose and it shall not be engaged in. Suffice only

to note the concerns from the Respondent about restitution impossibility.



     For the reasons that the Respondent has cited, the court is of the view that

forcing restitution where it is no longer tenable is tantamount to an exercise in

futility. In the premises, the court is persuaded that a direct award of damages

in place or reinstatement would meet the justice of the case. In the interests of

justice it is prudent that the parties be given the option to work that out the

figures on their own first failing which either party can approach this court for

quantification.



IT IS THEREFORE ORDERED THAT:

  1. The appeal being with merit be and is hereby upheld.

   2. The order finding Appellant guilty and dismissing him is set aside and

   substituted by an order that the Appellant is found not guilty of the

   misconduct which had been leveled against him.

   3. Respondent is ordered to pay Appellant damages in place of

   reinstatement from the date of dismissal.

   4. Parties are to agree on the quantum failing which either party can

   approach this court for quantification.

   5. Each party to bear its own costs.



Signed

L. KUDYA -------------------------

President- Labour Court.




                                                                                7
                                                    JUDGMENT NO. LC/H/313/2013


Farai Nyamayaro Law Chambers – Appellant’s Legal Practitioners

Kantor and Immerman - Respondent’s Legal Practitioners




                                                                             8