Edson Nyakudanga v M.E. Charhons

IN THE LABOUR COURT OF ZIMBABWE            JUDGMENT NO.LC/H/115/2013

HARARE, 6 SEPTEMBER 2012                   CASE NO. LC/H/586/2011

In the matter between




EDSON NYAKUDANGA                     -           Appellant
And

M.E. CHARHONS                        -           Respondent




Before The Honourable B.T. Chivizhe: President
For Appellant     -     Advocate R. Chingwena – Advocate

                        (PRO AMICO) Advocates’ Chambers.



For Respondent    -     Mr T. Nyamasoka – Legal Practitioner

                        Atherstone and Cook Legal Practitioners




CHIVIZHE, B.T.:


      The appeal was noted as against the decision by the Appeals Committee

which confirmed Appellant’s dismissal from employment with effect from 2

September, 2011 on charges of “extortion-proved dishonesty.”



      The facts surrounding the misconduct charges were that the Appellant

who was employed as invoicing clerk, on the 4 th of July 2010 used one Tendai

Janha’s profile to generate on the computer an invoice for a non-trading

company that is Madziwa Trading. The transaction turned out to be fraudulent

as the Respondent lost goods through the delivery of goods to a person other
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than the purported customer shown on the invoice.                        The Respondent was

prejudiced in the amoun t of $4 600 as it was unable to recover the goods.



      The Appellant appeared before a disciplinary committee on the 26 th of

August 2011 facing the charge of “Extortion-Proved dishonesty/stealing from

company and other employees.”                    He was found guilty as charged and

consequently a penalty of dismissal with effect from the 2 nd of September, 2011

was imposed.       The Appellant exercising his rights under the relevant code

appealed to ‘Management’ against the decision. An Appeal Committee set up

by the Respondent then heard his appeal on 15 th of September, 2011. That

Committee after deliberations upheld the Disciplinary Committee findings and

reimposed the dismissal penalty. Aggrieved by this decision the Appellant then

lodged the present appeal with the Labour Court. The Appellant who was a self

- actor then filed lengthy grounds of appeal. The grounds can be summarized

to be the following;


   1. That the Disciplinary Committee and in turn the Appeal Committee did not prove the
      essential elements of the charge of extortion as defined in the context of the Code of Conduct.
   2. As the Code of Conduct does not expressly provide for an Appeals officer or Appeals
      Committee the purported proceedings before the “Appeals Committee” were invalid and of
      no force or either in law.
   3. The Appeals Committee was improperly constituted of the same members of the Disciplinary
      authority and therefore the proceedings were invalid.
   4. The Appellant was denied legal representation.
   5. The Appellant was denied an opportunity to address in mitigation before the ultimate penalty
      was imposed by the Disciplinary Committee as well as the Appeals Committee.


      The Respondent in opposing the appeal took a point in limine. The point

was that the Appellant in filing his appeal with the Labour Court had not



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exhausted internal remedies as provided for under the Code of Conduct. In

terms of the Code of Conduct an appeal lies from the decision of ‘Management’

to Ministry of Labour. In the circumstances it was Respondent’s prayer that as

the Court had no jurisdiction it should dismiss the appeal.



       The Appellant’s submission was that the Code of Conduct was not in

compliance with the law. In particular the Code did not stipulate to whom in

the Ministry of Labour, Manpower Planning and Social Welfare the appeal

ought to be referred to. Under the new dispensation by virtue of Section 93 (I)

of the Labour Act, Labour Officers have powers of conciliation and determine

claims of unfair labour practices. Labour officers have no power to entertain

appeals.     The Code therefore contains archaic provisions and is therefore

invalid.    For that reason the Appellant had approached the Labour Court

directly.



       From a perusal of the relevant Code that is M.E. Charhons (Pvt) Ltd Code

of Conduct in paragraph (d) under the heading of “Disciplinary and Appeals

Procedures” where an employee is not satisfied with the final decision of

‘Management’ sitting as an Appeals authority the employee shall appeal to the

Ministry of Labour, Manpower Planning and Social Welfare. I totally agree with

the Appellant that the provision in paragraph (d) is vague.        If by making

reference to Ministry of Labour, Manpower Planning and Social Welfare the

Code is referring to Labour Officer this should have been expressly stated in the

Code. It is appreciated that sometimes Codes are drafted by lay persons who

may not be familiar with the law procedures. Codes however still need to be

revisited and updated by the responsible authority in order to keep abreast




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with developments in the law. This particular Code would need to be revised in

order to bring it in line with the Labour Act [Cap 28:01].



      For the reason that the provision in paragraph (d) in the Code is vague

and also because it has not been shown to my satisfaction by the Respondent

that recourse to ‘Ministry of Labour, Manpower Planning and Social Welfare’ will

confer a more effective remedy to the Appellant I decline the request by the

Respondent to withhold my jurisdiction in this matter. The point in liming is

consequently dismissed.



      Turning to the grounds of appeal I am convinced upon perusal of the

record of proceeding that the Respondent committed a procedural irregularity

sufficient to vitiate the disciplinary proceedings. The Appellant raised as its

grounds of appeal, firstly, the issue that the Code of Conduct did not expressly

provide for an ‘Appeals Committee’ and its composition thereof. Secondly that

the ‘Appeals Committee’ was improperly constituted of the same members of

the Disciplinary Committee and therefore the proceedings were invalid.



      The Respondent in its response submitted that whilst the Code did not

expressly provide for an Appeals Committee and its composition the

Respondent had ensured that Appellant was granted a fair hearing before a

neutral body. Further whilst conceding that indeed the Appeals Committee,

apart from its Chairperson, was composed of the same members from the

Disciplinary Committee, it was Respondent’s view, however, that those same

members had not actively participated in the hearing itself and the decision

making process. The Appellant had not therefore been prejudiced by the mere

presence of these individuals.


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      It is clear from a perusal of the Code of Conduct that whilst it expressly

provides for the composition of the Disciplinary Committee in paragraph (h)

under the heading “Code of Conduct Disciplinary and Appeal Procedure” the

Code however does not provide for an Appeals Committee. Under paragraph

(d) (referred to supra) an appeal from decision of Disciplinary Committee lies to

‘Management’. It is not clear the form appeals authority should take whether it

is made up of one member of the management structure or a committee

composed of who is not specified. Needless to point out a Code of Conduct

should clearly spell out the composition of any disciplinary body constituted

under it if the Code is to be effective.



      The second point raised by the Appellant is a valid one. It is clear from

the record that apart from the Managing Director the same members of the

Disciplinary Committee constituted themselves as the Appeals Committee and

sat down to hear the appeal. It is an elementary notion of fairness and justice

that the body sitting to hear an appeal should not be composed of the same

persons that sat in the initial disciplinary process. This is to ensure impartiality

and fair decision-making in the process. The suggestion by Respondent that as

the members were not actively involved in the hearing and did not participate

in decision-making and hence the Appellant was not prejudiced is totally

unacceptable. If the Respondent in the absence of clear provisions in the code

as to the composition of the Appeals authority was inclined to set up an Appeals

Committee then it should have at least set up a Committee made up of different

persons to the members of the Disciplinary Committee but ensuring that the

rules of natural justice are observed see Duly Holdings vs. Peter Chanaiwa SC

17/07. In the circumstances it is the finding of the court that the presence and


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participation at the appeal hearing of the members of the Disciplinary

Committee vitiated those proceedings. The decision by the ‘Appeals Committee’

set up by the Respondent is clearly a nullity. The matter has to be remitted to

the employer for a hearing de novo of the appeal.          Having come to that

conclusion there is no need for the court to address the rest of the grounds

raised in this appeal.



      It is accordingly ordered as follows;



   (1) The appeal is allowed with costs.

   (2) The matter is remitted to the employer for a hearing de novo before an

      Appeals authority.

   (3) The Appeals authority shall be comprised of members other than the

      Disciplinary Committee members.

   (4) The appeal hearing shall be convened within 30 days of the date of this

      judgment.

   (5) The Appellant’s status shall revert to that of dismissal by the Disciplinary

      Committee and awaiting the appeal hearing.




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