Emson Marova v Premier Service Medical Aid Society

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/461/13
HELD AT HARARE ON 22ND JULY &
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT  NO  	 LC/H/461/13

HELD AT HARARE  ON 22ND  JULY &

27TH SEPTEMBER , 2013						 CASE NO LC/H/47/13

In the matter between:-

EMSON MAROVA							Applicant

And

PREMIER SERVICE MEDICAL AID SOCIETY			Respondent

Before The Honourable E. MUCHAWA, Judge

For Applicant:  R. Masomera (Grievance Handling

Officer ZFTU)

For Respondent: T. Bhatasara (Legal Practitioner)

Chambati (Legal Practitioner)

Mr Reason Ndiweni – (Employer Representative)

MUCHAWA, E

This matter	is both an appeal and an application for review against a decision of the Premier Service Medical Aid Society (PSMAS) Appeals Committee handed down on the 18th of December 2012.

The	Appellant was employed as an account manager by the Respondent. He reported to the Group Marketing and Sales Executive. The Appellant was charged of and found guilty of contravening section 10.4.22 of the PSMAS Code of Conduct which provides as follows:-

“Being under the influence of alcohol or drugs during working hours to such an extent that this renders the employee incapable of performing his duties to the required standard, or endangers other employees or has the potential to damage society property.”

The allegations forming the basis of the charge are that on the 9th August 2012, the Appellant went to a place known as Alfida Barracks in Domboshava, to conduct the respondent’s business. It is alleged that the Appellant did not notify the office as he was required to do and he spent the day consuming alcohol thus he got drunk whilst on duty. It is further alleged that on that day, the Appellant was called to the office, just before close of business and when he presented himself, he was evidently drunk. He is alleged to have then written two documents, addressed to his supervisor, apologizing for his drunkenness.

The Appellant has listed the following grounds of appeal:

The record of proceedings was not signed and confirmed by the parties as a true and correct record of what transpired in the hearing.

The purported record is fabricated and made to suit a predetermined outcome.

The disciplinary committee chairman used emotive and injudicious language dedicating one and a half pages to attacking the professionalism and rationality of the Accused employee’s representative.

An objection was raised on the admissibility of the complainant’s exhibit 1 but the committee allowed the evidence and proceeded to make a decision without first ruling on the objection.

The Disciplinary Committee Chairman was blatantly biased against the accused employee and made life difficult for the Accused employee’s representative resulting in the abandonment of the accused employee’s re-examination by his representative as the chairman continued to make objections on behalf of the complainant.

An unreasonable and irrational finding of fact by the committee to find the accused person guilty of being drunk yet an earlier finding was that the accused employee was not on duty on the day in question making it legally impossible for him to commit the offence which requires him to be on duty.

The conduct of the Disciplinary Committee Chairman Clearly demonstrates a reasonable apprehension of bias against the accused employee and shows that the hearing was a mere formality and there was always a predetermined outcome which can be seen by the fact that the decision to terminate the accused employee’s contract was reached and reduced to writing before 2 other committee members had confirmed the purported record.

The appeal to the appeals authority in terms of the Code was filed but the appeal authority did not deal with all the issues raised thereby merely glossing over the appeal.

On the review application the appellant/applicant raises three broad grounds being that there is no record of proceedings, that the hearing proceeded despite his objection on the admissibility of evidence without making a ruling on the objection. The last ground is the irrationality of the judgment. Essentially the appellant is raising once again grounds of appeal 1, 2, 4, 6 and 8 under the application for review. In addition appellant alleges that he raised numerous in limine issues which were not dealt with by the committee. The Appellant’s prayer in both instances is for the guilty verdict to set aside and he prays for reinstatement.

In response to the appeal, the respondent states that all the grounds of appeal qualify as review grounds and denies all the averments and puts appellant to the proof thereof. In particular, ground of appeal number 3 is dismissed as not recognizable at law. In conclusion respondent states that the appeal authority wrote a comprehensive, well reasoned judgment which is not impeachable.

Regarding the application for review, respondent argues that there were no procedural irregularities as claimed and puts appellant/applicant to the proof thereof.

I will now proceed to consider each of the grounds of appeal and thereafter the grounds of review, in turn.

The Appeal

The Respondent’s counsel made the submission that the appellant’s grounds of appeal 1,2,3,4,5,7, and 8 are not competent grounds of appeal but would qualify as grounds of review. I was referred to Herbstein and Van Winsen, Civil Practice of the High Court of South Africa, 5th edition at page 1271 which sets out as follows:-

“The reasons for bringing proceedings under review or appeal is usually the same viz to have the judgment set aside. Where the reason for wanting this is that the Court came to the wrong conclusion on the facts or law, the appropriate procedure is by way of appeal. Where however the real grievance is on the method of the trial, it is proper to bring the case on review.”

The law is clear that in a review application the court addresses issues of procedure as measured against principles of natural justice. G. Feltoe in A Guide To Zimbabwean Administrative Law, Third Edition (1987) at page 23 deals with the topic of natural justice as follows:-

The principles of natural justice embody fundamental notions of procedural fairness and justice. As applied to administrative decisions, these principles seek to ensure that such decisions are only taken after fair and equitable procedures have been adhered to. In essence natural justice tries to guarantee that the parties who will be affected by the decisions receive a fair and unbiased hearing before the administrative tribunals reach their decisions.

A consideration of Appellant’s grounds of appeal listed above as 1,2,3, 4, 5, 7 and 8 clearly shows that the appellant is taking issue with matters of procedural fairness and the method of the trial rather than the conclusions reached on the facts and law. For instance he questions the accuracy of the record of proceedings, alleges, bias on the part the chairperson of the committee and avers that the appeals authority did not comprehensively deal with the issues raised on appeal. I therefore find that grounds of appeal 1,2,3,4,5,7 and 8 are incompetent grounds of appeal and are improperly before the Court. I accordingly strike off grounds of appeal 1,2,3,4,5,7 and 8 and now proceed to consider ground of appeal 6.

The appellant alleges that the hearing committee made an unreasonable and irrational finding of fact by finding the appellant guilty of being drunk yet an earlier finding was that the accused employee was not on duty on the day in question thus making it legally impossible for him to commit the offence which requires him to be on duty.

I find that this ground of appeal is without merit. The record has an attendance register which shows that the appellant was on duty and signed in on the day in question. The appellant was however not in the office at some time when he could not be located. The nature of his duties included working outside the office. I could not locate any finding that the appellant was not on duty, rather that he was not in the office. Consequently the finding of the committee is neither irrational nor unreasonable in this regard. The appeal being without merit is dismissed.

The Application for review

I now proceed to consider the application for review. As already stated above, the applicants’ application is premised on three grounds, namely that there is no record of proceedings, proceeding with the hearing despite an objection on the admissibility of evidence and without making a ruling on the objection and the irrationality of the judgment. I will now proceed to consider each particular allegation raised.

The disciplinary committee did not circulate the record of proceedings to all parties for confirmation before the decision on my guilt or innocence was reached.

The record has minutes of the disciplinary hearing in respect to the appellant which are dated the 24th August 2012. Thereafter there was a continuation on several days in November ending with a hearing on the 29th of November. At the start of the proceedings the committee had agreed that all committee members would take notes and at the end of the hearing would come up with an agreed record of proceedings. There is indeed a signed certificate of accuracy of record. Two members of the committee signed this record on the 30th November 2012 whilst two signed on the 3rd December 2012. This is the appellant’s basis for claiming the record was not circulated for confirmation before a decision was reached on the verdict. This is because the dismissal letter is dated the 30th November 2012 and then corrected by hand to read the 4th December 2012.

The appellant seems to be working under the assumption that the committee hears, records and agrees on the record of proceedings before reaching a verdict. I find however that the hearing itself is the opportunity given to the accused employee and the employer to present their cases before the administrative decision maker decides the case (Feltoe at page 23). The record of proceedings, is just a record of that whole process. The Premier Service Medical Aid Society Code of Conduct in section 6.1.4 provides that a comprehensive summary of the hearing proceedings should be prepared. In this case I find that such a record of proceedings was prepared. The applicant has not shown what prejudice he suffered by reason of the committee members signing the certificate of accuracy of proceedings on different dates. This does not therefore render the proceedings a nullity.

Record is defective, fabricated and exaggerated and it attributes questions and answers to me that I am not aware of.

I find that the applicant has not provided specific examples in his application that demonstrate that the record is defective, fabricated and exaggerated. I am also unclear what aspects of the record have questions and answers wrongfully attributed to him. Even if these were there, I have not been shown how this prejudiced the applicant to warrant nullifying the proceedings (See Tichawana Nyahuma vs Barclays Bank Ltd SC67/05 at pages 4 to 5.

Admissibility of Complainant’s exhibit 1

The applicant objected to the admitting of an apology he had written to his supervisor. One apology was written on the date of the alleged offence and the other on the following day. In short the apology said “sorry for drinking alcohol on duty” the appellant alleges that the apology was obtained through duress and fraud and must therefore not have been used.

I find it improbable that the appellant wrote and signed both apologies under duress and fraud on two different days and in both essentially apologized for being drunk whilst on duty. The record also shows three witnesses who confirmed his drunken state and it was established had no reason to lie against him.

I am persuaded too that proceedings under a Code of Conduct are to be conducted in a flexible manner as long as they result in a fair hearing. (See ZFC v Eunice Geza SC14/98). The hearing committee, even though it was chaired by a retired magistrate, should not be expected to follow strict rules on admissibility of evidence. In this case in dealing with the objection the committee looked at all the evidence in its totality and accepted the apology as corroborative evidence. This approach can therefore not be faulted.

Numerous in limine issues not dealt with by the Appeals Committee

I find that the applicant has not specified the points in limine that were not dealt with. He has also not illustrated what prejudice he suffered as a result of that. Consequently this ground for review is without merit.

Appeals authority did not address all the other issues raised in the Appeal.

In similar fashion I find that the applicant has not specified the prejudice he suffered and the particular issues not addressed. I therefore similarly find that this ground for review is without merit.

Needed to hear oral evidence

In his submissions, the applicant raised the point that the appeals committee should have conducted an oral hearing and should not have proceeded to confirm the decision of the disciplinary committee without hearing oral evidence themselves. The applicant relies on Annexure 7 in the PSMAS Code of Conduct which provides for a Notice of Appeal Hearing. I find however that the applicant should be directed to read section 8 of the relevant Code which sets out the appeal procedure. In section 8.1 the appeal authority is mandated to consider the grounds of appeal and examine the issues raised to determine their validity amongst other things. The committee is not     obliged to hear oral evidence. This ground of review is without merit too.

Bias

The applicant has not specifically put bias as a ground of review. I already struck this off as a ground of appeal. I wish however to comment that the applicant comments on the chair as using emotive and injudicious language and as having attacked the professionalism of the applicant’s representatives and making objections on behalf of the respondent. Let me refer to the matter of Trinity Engineering (Pvt) Ltd v Commercial Bank of Zimbabwe Ltd 2000 (2) ZLR 385 (HC) where it was held that for bias on the part of a judicial officer to be established, the aggrieved party must show that an adverse decision must have been a partial decision or one that would reasonably cause the aggrieved party to conclude as much. An adverse decision and critical comments are not in themselves evidence of bias.(my emphasis)

Resultantly I order as follows regarding the appeal and the application for review:

“The appeal and application for review, both being     devoid of merit are dismissed with costs.”