Dr Ekofe Moke Robert v Chitungwiza Central Hospital & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/27/2021
HARARE, 12 FEBRUARY 2021
CASE NO. LC/H/REV/40/20
AND 26 MARCH 2021
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO. LC/H/27/2021

HARARE, 12 FEBRUARY 2021				CASE NO. LC/H/REV/40/20

AND 26 MARCH 2021

In the matter between:

DR EKOFO MOKE ROBERT						APPLICANT

versus

CHITUNGWIZA CENTRAL HOSPITAL				1ST RESPONDENT

HEALTH SERVICE BOARD						2ND RESPONDENT

MINISTER OF HEALTH & CHILD WELFARE N.O.			3RD RESPONDENT

Before The Honourable Kachambwa J

For the Applicant				E. Dondo (Legal Practitioner)

For the 1st - 2nd Respondents 			E. N. Siqoza (Civil Division)

KACHAMBWA J:

This is an application for review of the proceedings of the Health Services Board held on the 27th March 2020. The applicant was employed by the Government of Zimbabwe as a medical practitioner and was stationed at Chitungwiza Central Hospital. He was involved in act of misconduct and was charged and tried in terms of the Labour National Employment Code S. I. 15 of 2006. At the trial before the Board the applicant did not object to the application of this Code. In this application he is challenging its application. The challenge is on the ground that the applicant is a civil servant and as such he should be charged and tried in terms of the Public Service Act/Civil Service Act.

The facts of this case are largely common cause. The question that stands to be answered is which law is applicable for the applicant. The applicant’s argument is that the code does not apply “because he is a member of the Public Service in the employ of the State. Further section 3 of the Labour Act specifically removes Applicant from the application of the Labour Act on account that he is a member of the public service” (paragraph 24 of Applicant’s Heads of Arguments). On the other hand, the respondents are saying that the national employment code applies because although the applicant is a civil servant in the broad sense of the word he was removed from the group in terms of the Health Services Act, [Chapter 15:16] and placed under the Health Service Board through which the National Employment Code applies because the Health Service Board does not have a registered code of employment.

The applicant also argued that the respondents breached the Health Service Act by applying the National Code instead of the Health Service prescribed regulations. “In the present case, the Respondents should have proceeded in terms of S.I. 117 of 2006, the Health Service regulations.” Paragraph 11 k of the founding affidavit. The applicant admits to be under the Health Service Board and therefore to be tried in terms of the relevant regulations. This appears to be blowing both hot and cold.

Both parties referred to Supreme Court cases in support of their arguments. The applicant referred to the case of the City of Gweru v Richard Masinire SC 56/18 to the effect that the judgment is clear that as a member of the Public Service he is excluded from the application of the national code. On the other hand the respondents referred to the case of Tendayi Tamanikwa and 13 others v Zimbabwe Manpower Development Fund SC 33/13 to the effect that the national code applies because the Health Service Regulations are not registered and therefore they are inapplicable. The applicant sought to argue that the City of Gweru case is a later case and therefore has pride of place.

Unfortunately, the applicant did not show what the reasons for decision were in the City of Gweru case neither did he identify how the regulations in the two cases differ or are similar. This is important to the extent that both cases are decided on the regulations and not on the exemptions from the application of the Labour Act.

In the City of Gweru case the court was seized with whether the Labour Act applied to senior urban council employees in view of the fact that there were regulations relevant thereto. The court’s finding was that, at page 11 of the cyclostyled judgment,

“The proceedings in terms of the Labour Act were valid notwithstanding the provisions of the Urban Councils Act because the Respondent did not have a registered code of conduct and the disciplinary procedures laid down in the Urban Councils Act were inapplicable to the appellant in his capacity as town clerk.”  (my emphasis)

One could say that the part on the applicability to the town clerk may be confusing.  It is nevertheless clear that the regulations were inapplicable because they were not registered in terms of the Labour Act. Where there is no registered code the national code applies.

In the Tamanikwa case supra the issue was whether the respondent’s regulations made in terms of the Manpower Planning and Development Act, [Chapter 28:02] applied. Section 69 thereof empowers the Minister to enact regulations. These were they. The court held that, at page 16 of the cyclostyled judgment,

“The respondent failed to comply with the provisions of section 12 B of the Act. (the Labour Act). An employer who terminates the contract of employment with an employee must proceed either in terms of a registered employment code or the Labour National Employment Code S. I. 15/06. The respondent utilized the Regulations and it has failed to establish that the dismissals were effected in terms of the provisions of section 12B. Any disciplinary procedures which have been effected outside the peremptory provisions of s 12B are clearly unlawful. The dismissal of the appellants was therefore null and void.”

The thread that we are pursuing is that the applicant fell under the Health Service Act. His misconduct is governed by that Act. In other words, he no longer falls under the Civil Service/Public Service Act. He was taken out of it by the Health Service Act. The Health Service Act regulations are not registered in terms of the Labour Act. To that extent, therefore, they are not applicable as both the City of Gweru and the Tamanikwa cases say. The Labour (National Employment Code of Conduct) Regulations S. I. 15/2006 apply.

The applicant is not a public servant for the purposes of the misconduct regulations. He falls under the Health Service Act and is under the Health Service Board. The hearing in terms of the Labour (National Employment Code of Conduct) Regulations was therefore in order.

Accordingly, it is ordered that:

1.	the application for review be and is hereby dismissed.

2.	the applicant pays the costs of suit.

Sunyama, Dondo, Applicant’s Legal Practitioner