Darlington Muzanechita v Allied Timbers (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/417/13
HARARE 25th JUNE & 30th AUGUST, 2013
CASE NO LC/H/1002/12
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/417/13

HARARE 25th JUNE & 30th AUGUST, 2013		  CASE NO LC/H/1002/12

In the matter between:-

DARLINGTON MUZANECHITA			Appellant

And

ALLIED TIMBERS (PVT) LTD			Respondent

Before The Honourable G Mhuri, Senior President

For Appellant :Mr D. Mungure (Legal Practitioner)

For Respondent:Mr J. Zviuya(Legal Practitioner)

MHURI, G:

On the date of hearing of this appeal, (26th June 2013), both parties’ Legal Practitioners suggested and agreed that I determine the matter on the documents filed of record. This is in terms of Section 89(2)(a)(i) of the Labour Act [CAP 28:01]. This therefore is my judgment.

According to paragraph 2 of Appellant’s Heads of Argument, the issues for determination by this Court are 3 namely:

whether the Hearing Panel was properly composed in terms of the Code of Conduct

whether or not the Respondent proved any case of misconduct against the Appellant on a balance of probabilities.

whether dismissal was the only suitable option or penalty in the circumstances.

I will deal with these in seritiam.

COMPOSITION OF THE HEARING PANEL

This issue was raised as a ground of appeal to the Group Chief Executive Officer by Appellant who made the following findings that:-

the initial hearing commenced with your full blessings after you had indicated you were happy with the composition of the panel

you did not object to the continuation of proceedings as evidence that you were happy with the panel composition

you elected not to bring your own employee representatives as provided for by the Code. There is no evidence to suggest you were prevented from bringing your own employee representative in addition to the lawyer.

From the above findings, one is left in no doubt that the initial Hearing Committee was not properly constituted.

The Hearing Committee was indicated as follows:-

G. Mawarura 			Chairman

M. Mahari 				Human Resources Advisor

F. Chinyani			Complainant

C. Moyo				Management Representative

D. Muzanechita 		Accused

B.N. Mungure 			Legal Practitioner

(record page 26)

Although indicated under panel, Chinyani, Mahari, Appellant Muzanechita and the Legal Practitioner Mr Mungure could not be members of the panel.

That left Mawarura and Moyo as the hearing panel.

The Respondent’s Code of Conduct which was applicable then provides in Clause 7.1. for the composition of the panel.

It states:-

“The disciplinary hearing panel shall comprise of:-

7.1.1. Chairperson

7.1.2. One management/supervisory member

7.1.3. Up to two employee representatives

7.1.4. Human Resources Representative to ensure that disciplinary action

will be fairly and justly applied in accordance with the laid down procedure, is allowed to ask clarificatory questions.

7.1.5. Only the Chairman/Human Resources Representative shall record

minutes in a hearing”

In view of this provision, was the Group Chief Executive Officer correct in finding that it was for Appellant to bring representatives of his own choice, for them to be part of the panel?

Certainly not in my view. In the letter of invitation to attend the Disciplinary Hearing from the Disciplinary Hearing Chairman to Appellant it is indicated;

“it is within your rights to be represented by an employee representative or legal practitioner of your choice”

This certainly did not mean that he had to bring his own representatives for inclusion into the Committee. A Legal Practitioner cannot be expected to be a member of the Committee. I find support in the case of MADODA V TANGANDA TEA COMPANY LTD 1999 (1)

ZLR 374 S at page 378 A – B

where Sandura J.A. in disagreeing with the Judge aquo’s finding had this to say:-

“In any event, the two members of the workers committee who are supposed to be on the disciplinary committee are there to represent the interest of the workers in general and not just those of the alleged offender as is the case with a personal representative”

The representative of his own choice Appellant is required to bring is one who is to help him present his case and defence against the acts of misconduct preferred against him. Such as a lawyer, fellow worker or workers committee member etc and not those who sit on the hearing committee to hear and determine the case. It is clear from the composition of the Disciplinary Hearing Committee that there was no worker representative at all. Having observed that the Committee was not properly composed, the Group Chief Executive Officer ought to have remitted the matter for a hearing de novo before a properly constituted body. He did not but instead state that;

“the constitution of an impartial Appeal Hearing Panel chaired by a neutral person corrects, remedies addresses and supercedes your ground of appeal as you will be given an opportunity to present and argue your case afresh before an impartial chair in addition to the case record”

The minutes of the appeal proceedings do not however show that this was the case.

The findings made by Sandura J.A. in the Madoda case (supra) that the absence of two members of the Workers Committee from the Disciplinary Hearing was a fatal irregularity which vitiated the proceedings. That infact is the end of the matter, apply with equal force in casu.

The fact that Appellant was legally represented during those proceedings cannot make right the wrong procedure adopted by Respondent.

The Code, which was an agreement by both parties states a one of its objectives, to ensure that discipline is exercised in a fair open and just manner. Conducting a disciplinary hearing in the absence of employee representatives in contravention of the clear provision of the Code cannot be termed fair, open and just.

Further, at the conclusion of the hearing, the Appellant, his lawyer and complainant were asked to leave to enable the panel to deliberate. The Human Resources Advisor was not asked to leave (record page 35). His presence during deliberations leaves one to guess why he remained behind.

Having found that there was a fatal irregularity that vitiated the proceedings the appeal is to be allowed on that point alone. There is therefore no need to proceed to determine the other two issues.

However, on the principle enunciated in the case of;

MUSA BANDA V DALNY MINE SC 39/99

I will set aside the entire proceedings and remit the matter to Respondent to re-institute fresh proceedings in a procedurally correct manner before  different members of the Committee. Appellant shall revert to being on suspension.

I therefore order as follows:

That

the appeal be and is hereby allowed.

the entire proceedings (initial and appeal) be and are hereby set aside.

the matter be and is hereby remitted to Respondent for it to institute fresh proceedings in a procedurally correct manner before a different and properly constituted Disciplinary Committee within 30 days of this Order upon failure of which Appellant shall be considered  reinstated to his original position with effect from the date the 30 days expire.

Each party is to bear its own costs.

Makombe and Associates – Appellant’s Legal Practitioners

Bere Brothers – Respondent’s Legal Practitioners