Farai Vincent Kandemiviri v Harare Quarry (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/30/22
HELD AT HARARE ON 25TH JANUARY, 2022
CASE
JUDGMENT NO. LC/H/30/2022
CASE NO. LC/H/459/21
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO. LC/H/30/22

HELD AT HARARE ON 25TH JANUARY, 2022               CASE NO.LC/H/459/21

AND 11TH FEBRUARY, 2022

In the matter between:-

FARAI VINCENT KANDEMIVIRI					APPLICANT

AND

HARARE QUARRY (PRIVATE) LIMITED				RESPONDENT

Before the Honourable Makamure, J.

For the Applicant	:		Mr. A. Chambati (Legal Practitioner)

For the Respondent	:	Mr. H. Muromba (Legal Practitioner)

MAKAMURE J.

This is an application for review.  It is opposed.

The applicant was dismissed from the respondent’s employ following disciplinary proceedings where he was found to have violated Part B S4(a)(ii) of the applicable Code of Conduct S.I. 165/1997.

S4 provides for offences warranting dismissal.

4(a)(ii) provides:

“(ii)  	false evidence: deliberately giving untrue, erroneous or misleading information or testimony whether verbally or in writing.”

The Applicant is aggrieved by the proceedings in that he avers that:

there was a gross irregularity in that he was not notified of  the charges against him in a charge letter nor though the notice to attend disciplinary proceedings without grounds for the charge; that the disciplinary committee was composed of five (5) members but only one member, the administering official made unilateral findings both to convict and dismiss him; that the decision making process ignored the evidence which was placed before it and that he was not given a right to be heard and call witnesses; and that he was not heard in mitigation before a penalty was imposed against him.

Section 92EE of the Labour Act [Chapter 28:01] (The Act) provides for when matters should be brought on review before this court as follows:

“(1) 	Subject to this Act and any other law, the grounds on  which any proceedings or decision conducted or made in connection with this Act may be brought on review before the Labour Court shall be –

absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned;

gross irregularity in the proceedings or the decision of the arbitrator or adjucating authority concerned.”

In the present matter, the facts are common cause.  They are as follows.  The applicant obtained quotations on behalf of his employer for some items called screen clamps.  The applicant got three quotations.  However the said quotations were more than what was prevailing in the market.  Out of the three companies he obtained the said quotations from, one was found not to exist.  The charge therefore arose from the appellant giving highly inflated quotations.  This amounted to untrue or misleading information.  Obviously there were other players within the respondent company who were involved in the process like the person who raised the order leading to the quotations being made and the person who approved that such should be paid for.  These are obviously part of a team.  However their involvement does not remove the applicant’s duty to obtain the appropriate quotations.

The first ground for review takes issue with how the applicant was notified of the charge.  At page 17 of the record , the applicant was on 25 February 2021 notified of the charge: ‘(S.I. 165 of 1992 PART B 4(a)(II) False Evidence’.  He was advised further on that same document that a disciplinary hearing would be conducted on 1st March 2021.  The applicant signed that form.  In terms of the applicable code of conduct, after a complaint has been raised against an employee, the employee signs the complaint form and the hearing is convened within 72 hours.  The record shows that a disciplinary hearing was conducted on 1st March 2021.  At the commencement of that hearing, the applicant was asked “if he was made aware of the charges being raised against him.”  The applicant acknowledged that he was aware.

Following its deliberations the Disciplinary Committee found the applicant guilty.  He was penalized with dismissal.  There is no indication that mitigation was recorded before the penalty was imposed.  Indeed this makes the basis for grounds three and four.  When parties addressed the court, Mr. Chambati who appeared on behalf of the applicant argued that the applicant was never formally advised of the charge which he was facing.  He submitted that there was merit in the 1st ground for review.  Mr. Chambati argued in support of ground two saying that the impression got is that out of the five (5) members who constituted the Disciplinary Committee, only the administering official made the decision without involving the other committee members.  Mr. Chambati averred that the manner in which the administering official conducted the proceedings amounted to “descending into the arena.”  In support of the 3rd ground for review Mr. Chambati averred that the administering official made the finding against the applicant without considering evidence from the fitter and turner which evidence was placed before the committee.  On ground for review number 4 Mr. Chambati averred that the respondent did not afford the applicant a chance to address in mitigation.  In support of the right of the employee’s right to a fair hearing Mr. Chambati referred the court to LOVEMORE MADHUKU , LABOUR LAW ON ZIMBABWE and JOHN GROGAN WORK PLACE LAW (11TH EDITION) pages 275 – 276.

Mr. Muromba who appeared on behalf of the respondent initially had a preliminary point to raise.  He however abandoned it.  In response to the applicant’s case Mr. Muromba referred the court to the provisions of the Act.  It was averred on behalf of the respondent that in the present case the grounds of review do not meet the threshold as provided for in the Act.  With respect to the first ground for review Mr. Muromba argued that the applicant was aware of the charge which was levelled against him.

In support of this argument reference was made to authorities and some of the authorities relied on, on behalf of the respondent include MUSARIRA v ANGLO AMERICAN CORPORATION 2005 (2) ZLR 267 SC 53/05; PAUL GARWE v THE PUBLIC SERVICE COMMISSION SC 62/17;  MUTERAGOMBE AND GUNDANI v ZIMBABWE SCHOOLS EXAMINATION COUNCIL LC/H/189/2012; CHIKANDA v UDC LIMITED SC 7/99;  DUNMORE MUPANDASEKWA v GREEN MOTOR SERVICES (PRIVATE) LIMITED SC 35/15.

With respect to the 2nd ground for review Mr. Muromba argued that the applicant was making bare and unsubstantiated allegations that one person, namely, the administering official made a unilateral decision against the applicant Mr. Muromba referred the court to Part D of the applicable code which provides for the procedure.  Clause 2 provides for the hearing.  Clause 2(c) provides as follows:

“The complainant and the offender must attend the hearing in person.  The hearing shall be conducted by the administering official together with up to two workers representatives and up to two employer representatives provided that the representatives shall be equal at all times.  These shall, constitute the disciplinary committee for the hearing.  The choice of worker representatives shall be entirely at the discretion of the offender and may include the workers committee representatives, trade union representatives or such other person or persons acceptable to the offender…” (Empasis added).

In view of the provisions of the enabling statute, Mr. Muromba argued that the administering official assumes the role of a Chairperson and is the one who signs the relevant forms.  Mr. Muromba submitted that there was therefore nothing procedurally wrong as the administering official was complying with provisions of the enabling statute. Mr. Muromba submitted that taking everything into consideration the applicant was afforded a fair hearing.  He cited the case of ZFC LIMITED v FUNGAI GEZA SC 14/98 in support of the submission.

With respect to the third ground for review it was Mr. Muromba‘s submission that the disciplinary committee considered all the evidence placed before it before coming to a conclusion.  It was submitted that with respect to the misconduct charges, Applicant had no justifiable explanation for the disparity between the quotations he got and the ones given by the suppliers.   Mr. Muromba submitted the applicant failed to explain why one of suppliers could not be located.  Mr. Muromba submitted that it was up to the applicant to exonerate himself.  Some of the cases relied on by Mr. Muromba included: FIRST MUTUAL LIFE ASSURANCE LIMITED v MUZIVI 2007 (1) ZLR 325 (S); ALBERT JURUVENGE v PACKRITE (PRIVATE) LIMITED LC/H/618/13; AMERICAN FRIENDS SERVICE COMMITTEE v CHAUKE SC 1/12.

With respect to ground 4 Mr. Muromba submitted that there was nothing wrong with the decision.  The decision was consistent with provisions of Part B(4)(a) of the applicable code, namely, it was an offence which attracted the dismissal penalty.  There was therefore nothing wrong with the decision.  Mr. Muromba cited MASHONALAND TURF CLUB v MUTANGADURA SC 5/12; PASSMORE MALIMANJANI v CENTRAL AFRICA BUILDING SOCIETY (CABS) SC 47/05; TREGERS PLASTICS (PRIVATE) LIMITED v WOODRECK SIBANDA & ANOTHER SC 22/2012; CIRCLE CEMENT (PRIVATE) LIMITED v CHIPO NYAWASHA SC 60/03; BROWNE v TANGANDA TEA COMPANY SC 96/14 in support of this submission.   Mr. Muromba submitted that where the code of conduct is implicit as to the offence for which dismissal is the penalty, the question of imposing such a penalty cannot be regarded as irrational or grossly unreasonable.  Mr. Muromba submitted that in imposing the dismissal penalty as it did, the committee was exercising its powers in terms of the applicable code.

All in all it was Mr. Muromba’s submission that all the four grounds for review have no merit and in the result prayed that the application for review ought to be dismissed with costs.

In reply Mr. Chambati persisted that the application should be granted.

In considering disciplinary proceedings conducted at work places, it is trite that such proceedings are not expected to be as rigorous as court proceedings.  In CHATAIRA v ZESA HH 9/2000 the High Court stated that:

“… procedural fairness is the yardstick against which the employer’s pre dismissal actions are measured.  The employer is required to act judiciously before imposing a penalty on an employee.  However, the requirement of a fair hearing does not mean that employers must handle disciplinary proceedings according to the rigorous standards of a court of law.  The rules of natural justice require no more than that the domestic tribunal acts according to the common sense precepts of fairness.  Save in exceptional cases, there must be a hearing before disciplinary action is taken to ensure that the employee has an opportunity to lead evidence in rebuttal of the charge, and to challenge the assertion of his accusers before an adverse decision is taken against him.”

On appeal to the Supreme Court in SMITH CHATAIRA v ZIMBABWE SUPPLY AUTHORITY SC 83/2001 the Supreme Court upheld the earlier decision (HH 9/2000) of the High Court and the authorities cited there in.  One such case which was cited is HEATHERDALE FARMS (PTY) LTD AND OTHERS v MINISTER OF AGRICULTURE & ANOTHER 1980 (3) S.A. 476(T) where the court stated that:

“It is clear on the authorities that a person who is entitled to the benefit of the audi alteram partem rule need not be afforded all the facilities which are allowed a litigant in a judicial trial.  He need not be given an oral hearing; or allowed representation by an attorney or counsel; he need not be given an opportunity to cross examine …”

In JERRY MUSARIRA v ANGLO AMERICAN CORPORATION SC 53/2005 ((2) ZLR 267) the Supreme Court held that

“I would point out here that as long as a charge of misconduct is preferred against an employee there is always a certain element of institutional bias, as the employer is the offended party.  However this happens to be the situation in all misconduct cases.  What is important is that the misconduct matters are dealt with in a manner that is fair and impartial and that the rules of natural justice are followed.  The rules of natural justice in such a case are that the party concerned –

must be given adequate notice;

must be heard or be able to present his/her side of the story; and

should be allowed to call witnesses if he/she so wishes.

See DABNER v S.A. RAILWAYS AND HARBOURS AD 588 AT 598”

In the present case the applicant was on 25th February, 2021 served with a complaint form which form indicated both the charge he was facing and the date on which a disciplinary hearing was to be conducted.   He duly appeared for the hearing.  When he was asked whether he was aware of the charge being raised against him, he said he was.  He also had the benefit of a worker representative.  The worker representative participated during the hearing.

Since the appellant was served with a notice of hearing and charge letter combined together, he was properly served.

He therefore knew the case which he was facing. I have looked at the applicable code.  It provides a specimen complaint form.  That form was not strictly followed but however the basic requirements set out in the form were followed.  Section 4 of that form deals with what a worker representative and administering official should do after the administering official has spelt out the verdict.  What comes out clear is that the administering official is the one who does the paperwork during and after the hearing.  What this means is that it was not out of place for the administering official to pronounce the verdict and append his signature thereafter.  This is what the applicable code provides.  As held in the JERRY MUSARIRA v ANGLO AMERICAN case (above) the disciplinary procedure at the workplace is not as rigorous as it would be in a court of law.  It was Mr. Muromba’s submission that both the applicant and members of the disciplinary committee are laypersons.  I agree.  They cannot be measured by the same measurement which applies to legally trained practitioners.  Considering what authorities say, the applicant was aware of the charges which he was facing.  During the proceedings, somebody had to take a leading role.  This was the administering official.  In any group of people where issues have to be discussed, there is always the need to have a spokesperson.  Equally in a disciplinary hearing it is necessary for there to be somebody who is in control of the proceedings.  In the present matter this is provided for in the enabling  statute which places the task on the administering official.  In any event it would not be possible for all members of the committee to speak all at once. That would be chaotic.

This means that both grounds one and two have no merit.  They must be dismissed.

In ground three the applicant is aggrieved by the decision.  It was averred on his behalf that evidence was ignored.  However the facts are really not disputed.  The applicant obtained 3 quotations which were highly inflated and could have caused prejudice to the respondent.  This means that whatever other evidence the appellant has, it cannot change the fact that he provided inflated quotes.  This was obviously misleading.  Other factors like who proposed that the quotes be made or signed for them do not affect the fact that the applicant is the one who obtained the quotations in question.

The final issue raised by the applicant is that of mitigation.  Clearly he did not address the committee in mitigation before the penalty was mated out.  The question of mitigation is provided for in the applicable code.  It is obviously unfair that the applicant was penalized without having addressed in mitigation.  This is taking into account the detailed form which the respondent has.  The respondent ought to have followed it to the letter.

Section 8 of the specimen form is framed along the following lines:

“SECTION 8

This section should be completed by a representative of the trade union or worker’s committee, who is representing the offender who should offer in writing any comments or factors for consideration in mitigation”.  (Emphasis added).

In view of the clear guidelines which the respondent failed to follow, I find that there is merit in this ground for review.  It was procedurally wrong for the respondent to proceed to penalise the applicant without considering his address in mitigation.  This I believe falls in the purview of Section 92 EE (1)(c).  For this reason the penalty cannot stand.  As correctly submitted on behalf of the applicant, Section 12B(4) of the Act, an adjudicating authority:

“shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee’s service, the employee’s previous disciplinary record, the nature of the employment and any personal circumstances of the employee”.(Emphasis added)

Mitigation has a bearing on the penalty to be imposed.

In view of the foregoing the process leading to conviction is procedurally and on a balance of probabilities, proper.  However the procedure before the penalty was imposed was irregular.  The applicant was entitled to address in mitigation.  He did not.  He should be given a chance to do so.  In coming to this conclusion I fully associate myself with the principle laid down in DALNY MINE v BANDA 1999 (1) ZLR 220  where the Supreme Court stated that at 221 B-D:

“As a general rule it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities.  By this, I do not mean that such irregularities should be ignored.  I mean that the procedural irregularities should be put right.  This can be done in one of two ways:

by remitting the matter for a hearing de novo in a procedurally correct manner;

by the Tribunal hearing the matter de novo”.

In view of the foregoing the following order is made:

The procedure leading to conviction be and is hereby upheld

The penalty on the applicant following conviction for violating Part B 4(a)(ii) of Statutory Instrument 165/1992 be and is hereby set aside.

The matter be and is hereby remitted to the respondent for the respondent to record mitigation and then penalize the applicant.

The order in paragraph (iii) above be complied with within thirty (30) days of receipt of this order.  Should parties require extension of the time within which to record mitigation and consider the appropriate penalty, they can approach this court for such extension.

Failure to comply with this order will be taken to mean that respondent is absolving the applicant from wrong doing and reinstating him with no loss of salary and benefits and in the event of reinstatement not being possible the respondent be and is hereby ordered to award the applicant the appropriate damages as agreed between the parties in lieu of reinstatement.  Should parties fail to agree on the quantum of damages, either party is free to approach this court for quantification.

CHAMBATI, MATAKA & MAKONESE & PARTNERS – Applicant’s Legal Practitioners

KANTOR & IMMERMAN – Respondent’s Legal Practitioners