First Capital Bank v Norbert Nyamhuri

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/18/2020
HARARE, 17 JUNE, 2019
CASE NO. LC/H/62/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/18/2020

HARARE, 17 JUNE, 2019		     	     CASE NO. LC/H/62/19

AND 24 JANUARY, 2020

In the matter between:-

FIRST CAPITAL BANK						Appellant

AND

NOBERT NYAMHURI						Respondent

Before The Honorable L. Hove, Judge:

Applicant:				In Person

Respondent:				In Person

HOVE J:

This is an appeal against the decision of the Appeals Board of the National Employment Council for the Banking undertaking (Appeals Board).

The Respondent was employed by the appellant as a cashier at one of the appellant’s branches known as the NGO centre.

The Respondent was charged with an act of misconduct. She was found guilty and was dismissed. She noted an appeal to the Grievance and Disciplinary Committee (GDC). The committee failed to reach consensus in deciding the appeal and the matter was referred to the appeals committee in terms of the governing code, that is, Statutory Instrument 273 of 2000 (the code).

In noting an appeal against her employer’s decision to dismiss her to the GDC, the Respondent raised several issues which included issues of procedure and the allegation that the hearing had been conducted in a manner that had not accorded her the right to a fair hearing.

The grounds of appeal were briefly that;

1. 	The hearing officer misdirected himself in imposing a penalty of dismissal before the proceedings had been concluded and before the filing of closing submissions as had been agreed.

2.	The hearing officer ignored the facts that would have had the effect of exonerating the employee.

3.	The right to mitigate was not accorded.

4.	The hearing officer failed to ensure a fair hearing. He had a preconceived decision and descended into the arena.

5.	No reasons for the decision were availed and failure to consider the evidence submitted.

6.	Failure to comply with the code of conduct.

7.	Failure to advise the employee of the verdict in the presence of the worker representative.

8.	The charge was not approved.

As earlier indicated, the GDC registered two deadlocks in its deliberations. It

failed to arrive at a decision and the matter was referred to the Appeals Board.

The appeals board found that the audi alteram partem rule was breached by the hearing officer. The appeals board noted that at the end of the proceedings before the hearing officer it had been agreed that the Respondent’s representative would file submissions after he had been furnished with the minutes of the hearing. The hearing officer however proceeded to decide the matter before the Respondent had submitted her closing submissions. The appeals board found that the Respondent was denied the right to be heard. It was then found that this was so serious a breach that the proceedings had to be vitiated.

The appeals board also found that the Respondent was denied the right to address the hearing officer in mitigation. The appeals board then placed reliance on the case of Dalny Mine v Banda 1999 (1) ZLR 220. In that case, the court, while noting that it was undesirable to decide labour matters on procedural irregularities, also held that procedural irregularities must not be ignored but must be put right. The court had stated that procedural irregularities could be put right by either remitting the matter for a hearing de novo, in a procedurally correct manner or by the tribunal hearing the evidence itself.

The appeals board then upheld the appeal and remitted the matter to be heard before a different hearing officer.

The appellant was aggrieved, it noted an appeal to this court. Its grounds of appeal are:

1. 	The appeals board erred and misdirected itself at law by assuming powers of review which it does not have in terms of the employment code and determining grounds for review in an appeal.

2.	Further and in any event the appeals board grossly misdirected itself and erred at law in finding that:

2.1. 	the Respondent was not heard because written submissions he intended to file were not filed.

2.2.  	that the Respondent was not given an opportunity to file written submissions when the record shows that his representative had undertaken to do so by the 28th of September 2018 but she failed and neglected to do so.

2.3	that the Respondent was entitled as a matter of right to have the record before disciplinary proceedings had been concluded or that the record was necessary to enable her to file the submissions.

2.4	the disciplinary hearing officer proceeded to make findings in the absence of submissions in circumstances where the record shows that oral submissions had been made in the hearing and therefore the Respondent suffered no prejudice.

2.5	The conviction of the Respondent for misconduct was fatally irregular merely because written submissions had not been filed by the Respondent.

3.	The appeals board erred and misdirected itself in failing to exercise discretion to consider mitigation and cure the irregularity rather than remit the matter, let alone for a hearing de novo.

The appeal was opposed.

The issues that present for determination before this court are;

1.	Whether or not the appeals board enjoy powers of review.

2.	Whether or not the Respondent was heard.

3.	Was the Respondent given the opportunity to file written submissions.

4.	Was it necessary, or was it entitlement for the Respondent to be given the record of proceedings.

5.	Was the Respondent precluded from filing the submissions and if so, was it fatal to the proceedings.

6.	Should the appeals board have heard the mitigation itself to cure the defect instead of remitting the matter for a fresh hearing.

The issues will be considered in turn herein below.

Whether or not the appeals board has powers for review

The appellant argues that in terms of the Code, the appeals board is established for

purposes of determining appeals referred to it or made to it. The Code of Conduct does

not confer upon the appeals board jurisdiction to determine review of the conduct of

proceedings. The appellant further argued that the appeals board acted ultra vires the

employment code which created it. In support of this submission the appellant referred

the court to the case of:-

Masedza & others v Magistrate, Rusape and anor 1998 (1) ZLR 36 (H) wherein the

Learned Judge pointed out that it was trite that in an appeal one can only challenge the

substantive correctness of the decision made as opposed to the manner in which it was

arrived at. It was thus submitted that procedural irregularities can only be addressed in

a review application.

The court was again referred to the case of Minerals Marketing Corporation v

Mazvimavi 1995 (2) ZLR 353 (S). The court in that case held that if the legislature had intended to clothe the tribunal with the powers of review, it could have used express language.

I am not persuaded on the basis of the submissions made before me nor the cases I have been referred to that the appeals board acted ultra vires the code of conduct.

The cases I have been referred to were addressing the trite position in courts of law. The appeals board is not a court of law. It is a quasi judicial  body which conducts its business not in accordance with the strict formalities associated with proceedings in courts of law.

Secondly, the code of conduct was not a product of the legislature. It is a product of lay persons at the shop floor level. The drafting of codes of conduct is therefore not to be equated to the drafting of laws by the legislature.

Appeals boards are set up in terms of section 62 of the Labour Act [Chapter 28:01] (the act) which empowers employment councils and gives them the power to decide on cases brought before them. Section 62(1) provides as follows;

“an employment council shall, within the undertaking or industry and in respect of which it is registered…

(a) 	settle disputes that have arisen between employers or employers organisations on the one hand and employees, workers committee or trade unions on the other and shall take such steps as it may consider expedient to bring about the Regulation of settlement of matters of mutual interest to such persons or bodies”.

The appeals board generally settle disputes in terms of the Act. The Act does not specify the nature of settling of disputes so the appeals board acted within the confines of the enabling provisions of the Act. The Act does not state that the appeals board shall only settle disputes on appeal.

In Stephen Mackenzie v Rio Tinto SC 144/04 the Supreme Court opined and held as follows;

“…the designated authority had the jurisdiction to remit the matter to the Respondent. An appeal court or a body vested with authority to hear an appeal has, at least, the jurisdiction to allow an appeal, dismiss an appeal, or remit the

matter for a rehearing. The jurisdiction to do any of the above is inherent in the authority to hear an appeal. Where the lawmaker does not wish the appeal court or authority to have any of explicit language or implication from the language that an appeal authority cannot remit a matter for a hearing de novo, the appeal court or authority has such jurisdiction”.

The court, in that decision said if the lawmaker did not want the appeals authority to do certain things, then it must be explicit. In casu, the code does not say the appeal body shall not consider allegations of procedural unfairness. The appeal authority can therefore consider disputes of a procedural nature.

Non-filing of written submissions

The record shows that the hearing officer in concluding the hearing, agreed to let the Respondent file written submissions upon being furnished with the record of proceedings.

The hearing officer then proceeded to decide the matter before receiving the written submissions. The parties and the hearing officer had agreed and it is that agreement that bound the hearing officer. He had no obligation to agree that further written submissions would be submitted. He had no obligation to promise that the Respondent would be availed with the record of proceedings before submitting the written submissions. But he did. He is bound by his words. He ought to have ensured that the record had been availed and written submissions filled before he deciding the matter.

The fact that oral submissions had earlier been made is neither here nor there. The hearing officer must be bound by the agreement between the parties and himself.

If for any reasons the record of proceedings could not be produced, the hearing officer ought to have advised the parties and instructed the parties that for these reasons it was nolonger possible to avail the record of proceedings and advised the Respondent to go ahead and file his closing submissions. That he proceeded to decide the matter in a manner that was contrary to the agreed position is a misdirection, a serious one for that matter.

An agreement made by a presiding authority and the parties cannot be ignored. It is as serious as they come otherwise parties will not take agreements made during proceedings seriously the sanctity of contract principle is a well-established principle of law.

The hearing officer misdirected himself in proceeding contrary to the agreed position. He ought to have been bound by the agreement he made with the parties.

Absence of mitigation

That the hearing officer failed to allow the Respondent an opportunity to mitigate is admitted. This again was a misdirection on the part of the hearing officer.

The representative for the appellant made an important submission. He said;

“The Learned author Michael Opperman in his book entitled ‘A Practical Guide to Disciplinary Hearings pages 146-149 notes that the decision making process for misconduct is in two parts, namely the verdict which determines culpability or guilty, and such sanction which is the disciplinary measure to be taken. Failure to consider mitigation affects only the second part of the decision making namely the sanction, but not the first part relating to the culpability or guilt of the employee concerned. The conviction of the Respondent for misconduct would stand though there may be an irregularity in the omission to allow opportunity to address in mitigation. It is only the penalty which may be interfered with on that ground”.

I find the above submissions very instructive. It would therefore not be proper to set aside a finding of guilty merely because mitigation has not been allowed. This would concern just the sentence imposed. In casu this would have been the position had the hearing officer only erred in this one regard. But as matters stand, the hearing officer was found to have also failed to accord the Respondent with the right to address it by way of written closing submissions as per their agreement.

It would not have served any useful purpose for the hearing officer to call the parties to hear them in mitigation and perhaps also aggravation when he had found that the Respondent had not been afforded the right to file its closing submissions.

The appeals board considered the binding decision by the Supreme Court in Dalny Mine v Banda 1999(1) ZLR 220 (S) which held that in cases of procedural irregularities, the irregularities cannot be ignored. At the same time, it is undesirable to decide a Labour dispute on the basis of such procedural irregularity. The proper course to take would be for the appeals board to hear the matter itself (thereby curing all irregularities) or to remit the matter to be heard in a procedurally correct manner.

The honourable chairman of the appeals board exercised his discretion to remit the matter in view of the more than one irregularities in the proceedings. He also

directed that a different hearing officer be appointed to hear the matter in a procedurally correct manner. The remittal was not only based on the failure to hear mitigation but also on failing to deal with the matter in a procedurally correct manner as had been agreed by the hearing officer himself and the parties.

The case of Eastern Highlands Plantations v Farai Mapeto & 136 others SC 43/16 held that in the exercise of its appellate jurisdiction in determining an appeal, the Labour court does not have power to remit a matter back. Interms of section 89 (2) of the Labour Act. This is true in so far as the decision relates to the Labour Court and its powers in terms of the said section 89(2) of the act. It however does not say that the appeals board of the National Employment Council for the Banking undertaking does not have the authority to remit a matter. There is in fact direct authority from the Supreme Court that the power to remit is inherent in the power to hear an appeal for any body vested with the power to hear an appeal. See in this regard the case of Stephen Mackenzie (supra).

The appeals board did not deal with the matter on the merits. It referred the merits to be heard before a different hearing officer.

Having found that the appeals board can settle disputes including procedural issues when settling disputes, that the hearing officer erred when he unilaterally decided to disregard the Respondent’s right to submit written submissions as per the agreement and that the appeals board could not reasonably have proceeded to exercise its discretion to hear the Respondent in mitigation in view of the other procedural irregularities, the court finds it cannot grant the appellant’s prayer to uphold the decision to dismiss. The decision to dismiss must pass to tests, that it, was it procedurally fair and that on the merits, the Respondent had a case to answer, that is that there was substantive fairness.

The court has not heard or decided the merits, the appeals board did not hear or decide the matter on the merits. The issue that seized the court was procedural. It cannot be sound at law to then order dismissal of the Respondent as prayed by the appellant.

In the result, the following order is made;

1.	The appeal is dismissed with costs.

2.	The decision of the appeals board is hereby confirmed.