Family Aids Caring Trust v J. Mbereki

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/77/24
HARARE 24 NOVEMBER,2023
CASE NO. R/LC/H/721/21
AND 27 FEBRUARY, 2024
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THE LABOUR COURT OF ZIMBABWE HARARE 24 NOVEMBER,2023

AND 27 FEBRUARY, 2024

In the matter between: -

JUDGMENT NO. LC/H/77/24 CASE NO. R/LC/H/721/21

Family Aids Caring Trust	Appellant

Versus

J. Mbereki	Respondent

Before the Honourable L. Hove, Judge:

For appellant :	J. Zviuya For respondent :		S. Dube

This is an appeal against the decision of the National Employment Council for the welfare and Educational Institutions, appeals committee.

Background

The respondent was engaged by the appellant as a Human Resources Officer. Allegations of misconduct were raised against her that she had misrepresented facts to Tear Fund. She was dismissed on 13 September 2021. The appellant (employer) stated that she had pleaded guilty to the allegations. She appealed to the appeals authority which set aside the dismissal penalty on procedural grounds and invited the parties to appear before it and make representation as to mitigation and aggravation. The respondent then refused to appear before the appeals authority and stated so in writing.

The matter then proceeded in her absence. The appeals authority imposed the penalty of dismissal. She appealed against the appeals authority’s decision to dismiss her to the National Employment Council (NECWEI) which upheld her appeal and ordered that she be reinstated. The employer was aggrieved and noted this appeal to the Labour Court.

GROUNDS OF APPEAL

The National Employment Council for Welfare and Educational Institutions (NECWEI) Appeals Committee grossly erred in failing to appreciate that the Respondent had pleaded guilty and consequently the verdict of guilty to the allegations remained intact and undisturbed.

The Appeals Committee grossly erred in holding that Appellant's Appeals Authority ought to have referred the matter back to the Disciplinary Committee for mitigation and aggravation.

The Appeals Committee erred in failing to appreciate that at law Appellant's Appeals Authority was entitled to hear mitigation and aggravation submissions and consider an appropriate penalty.

The Appeals Authority grossly erred in holding that the setting aside of the dismissal penalty nullified the Disciplinary Committee's verdict of guilty as pleaded by the Appellant.

The Appeals Committee erred in deciding the matter on a mere technicality and avoiding the merits of the matter contrary to settled law.

The Appeals Committee grossly erred in failing to appreciate that Respondent clearly waived her rights to be heard by deliberately abstaining from the Appeals hearing and consequently could not challenge the resultant decision on appeal.

These grounds of appeal will be considered as follows; Ground of appeal numbers 1,2,3,4 and 5

These 5 grounds of appeal will be considered together since they deal with interrelated issues.

A perusal of the record shows that the respondent pleaded guilty to the charges. In her internal appeal to the appeals authority, she appealed against the penalty of dismissal. At that stage, she was not appealing against her conviction. Her only concern was the penalty imposed. The Internal Appeals Committee which dealt with this appeal against the penalty, set the penalty aside and invited the parties to address it in mitigation and aggravation before it could pass an appropriate penalty. The appeals authority stated as follows;

“in conclusion, therefore I am convinced that you are entitled to an opportunity to make submissions in mitigation. For that reason, I hereby set aside the penalty of dismissal and hereby invite you to appear before me on the 11th of October 2021 at 1100 hours to address me in mitigation before I consider an appropriate penalty in the FACT Boardroom.”

The respondent refused to attend the hearing before the appeals authority for mitigation and the matter was finalized in her absence. She appealed to the NEC appeal committee which upheld her appeal on the basis that the internal appeals authority ought to have referred the matter back to the disciplinary committee for mitigation and aggravation.

Analysis

The NEC appeals committee erred in two respects; firstly, in holding that the matter ought to have been remitted to the tribunal a quo for mitigation, and secondly, in holding that, or in assuming that the appeals authority had set aside the ruling by the disciplinary committee.

The assumption that the ruling by the disciplinary committee had been set aside was wrong what had been brought on appeal was an appeal against the penalty only not the finding of guilty or the conviction. The internal appeals authority had therefore just set aside the penalty on the basis that the right to mitigate had not been accorded. The finding of guilty had thus not been upset on appeal and could rightly have been upheld on appeal.

The NEC appeals committee also made the astonishing finding that the respondent ought to have been reinstated plus an order that the matter be heard de novo. The basis for this was not stated in the determination. But it is trite that when one challenges the penalty, the finding of guilty made by a tribunal a quo can not be set aside much less a ruling that the guilty employee be reinstated. I say ‘guilty employee’ because she had been convicted on her own plea of guilty and had not even challenged the conviction. The finding of guilty still stood. The matter could also not be referred for a hearing de novo where only the penalty had been challenged.

I now turn to whether or not the internal appeals authority could have properly invited the parties to mitigate and aggravate before it?

In the case of Dalyn Mine v Musa Banda 1999 (1) ZLR 220 the Supreme Court stated that;

“as a general rule it seems to me undesirable that Labour relations matters should be decided on the basis of procedural irregularities”

The learned judge of appeal then stated that he did not mean that procedural irregularities should be ignored but that they should be put right by either remitting the matter to the tribunal a quo for the procedural irregularities to be put right or by the appeal body itself hearing the matter to correct the procedural irregularity.

It is therefore not a must that an appellate body should remit once it finds that a procedural irregularity had occurred. It can either remit or deal with the matter itself to correct the procedural irregularity.

In casu, the internal appeals authority had found that a procedural irregularity had occurred and that is that the right to mitigate had not been accorded. It could either remit the matter for mitigation to be taken before the imposition of an appropriate penalty or invite the parties to address it in mitigation and or aggravation before itself imposing an appropriate penalty. The internal appeal authority did not err in this regard.

The first 5 grounds of appeal clearly have merit. The Supreme Court has on numerous occasions emphasized the need to avoid deciding Labour disputes on the basis of legal technicalities. See also the case of Air Zimbabwe v Mnensa SC 89/04.

Ground of appeal number 6

Did the respondent waive her right to be heard when she deliberately abstained from the appeals hearing and consequently lost her right to challenge the resultant decision on appeal?

It has become trite that where a litigant deliberately absents himself or herself from disciplinary proceedings without leave of the concerned tribunal, he or she waives her rights to challenge the conduct of the disciplinary proceedings either on appeal or by way of review. A litigant can not refuse to attend a hearing and thereafter allege that things done in his absence are subject to review by a superior court or tribunal. See in this regard the cases of;

Moyo v Electrification Agency SC 4/14

Emmanuel Masvikeni v National Blood Services Zimbabwe SC 28/19

T. M. Supermarkets (Pvt) Ltd v Bisset Chimhini SC 41/19

Ground of appeal number 6 thus has merit and must, like the other 5 grounds before it, be upheld. In the result, the Court makes the following order:

Order:

The NEC appeals committee’s determination be and is hereby set aside and substituted with the following:

“the appeal, be and is hereby dismissed with each party bearing its own costs”.