Enock Chikaka v CMED (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/732/13
HELD AT HARARE 29TH JULY 2013
CASE NO
JUDGMENT NO LC/H/732/13
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/732/13

HELD AT HARARE 29TH JULY 2013		      CASE NO LC/H/189/11

& 17TH  JANUARY 2014

ENOCK CHIKAKA						Applicant

CMED (PVT) LTD						Respondent

Before The Honourable G Musariri, Judge

For Applicant		Mr P Nhokwara, Attorney

For Respondent		Ms W Nyakudanga, Attorney

MUSARIRI, G:

Applicant applied for the review of disciplinary proceedings against him which were conducted by Respondent.  Respondent opposed the application.  During oral argument Applicant based his case on the improper composition of the disciplinary committee.  Respondent conceded, and rightly so, that the committee was improperly constituted.  Such a committee has no authority to conduct disciplinary proceedings, let alone to dismiss an employee.  Authority for this proposition is found in the dicta of Sandura JA (as he then was) where he stated that an improperly constituted disciplinary committee “was a fatal irregularity which vitiated the proceedings.”  That was the case of

Madoda v Tanganda 1999 (1) ZLR 374 (S)  at p 378 C.

Respondent countered that the Applicant should not escape the consequences of his misconduct by reason of the irregularity.  It further submitted that Applicant had not shown prejudice suffered as a result of the irregularity.  I consider the last submission as misplaced.  The question of prejudice does not arise.  The proceedings were vitiated by the irregularity, period. That was the ratio in the Madoda case supra.  However I am persuaded by the submission that an employee should not escape the consequences of his misconduct solely on account of irregularities.  He should be acquitted on the merits.   This position is supported by the case of

Dalny Mine v Banda 1999 (1) ZLR 220 (S) where McNally JA (s the then was) stated, at p 222 E, that,

“I conclude, therefore, that the Tribunal should not have decided the matter on the basis of procedural irregularities.  Its choice was either to remit the matter so that the irregularities might be cured in a re-hearing, or to hear the evidence itself, thus rendering the procedural irregularities irrelevant, and to come to a conclusion on these merits.”

On that basis, I consider that a remittal of the matter for a re-hearing, is necessary.

Wherefore it is ordered that,

The disciplinary proceedings against and the dismissal of Applicant by Respondent are set aside; and

The matter is hereby remitted back to Respondent for a re-hearing by a properly constituted disciplinary committee; and

Pending the outcome of the re-hearing, Applicant is deemed to be on suspension without pay and benefits.

G. MUSARIRI

J U D G E