Godwin Madziva v Innscor Africa Bread Company Zimbabwe (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/180/16
HELD AT HARARE ON 18th NOVEMBER, 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/180/16

HELD AT HARARE ON 18th NOVEMBER, 2015     CASE NO. LC/H/REV/47/15

AND 18TH MARCH, 2016

In the matter between:-

GODWIN MADZIVA							    Applicant

And

INNSCOR AFRICA BREAD COMPANY ZIMBABWE

(PRIVATE) LIMITED							    Respondent

Before the Honourable Mhuri, J.

For Applicant	:	Mr E. Nyambuya (Legal Practitioner)

For Respondent	:	Mrs N. Manu-Mabiza (Legal Practitioner)

MHURI J.

This is an application for review by Madziva (Applicant).  The document that gave rise to this application is a response (THE RESPONSE) dated 13th February, 2014 by the Respondent’s human Resources Officer to Applicant’s legal practitioner’s notice of appeal dated 11th February, 2014 and addressed to Applicant’s legal practitioners.

The response reads as follows:-

“RE: APPEAL NOTIFICATION – GODWIN MADZIVA

Subject matter refers.

Please note that by copy of this letter, we hereby formally respond to your notice of appeal against conviction and sentence in regard to Godwin Madziva.  Godwin Madziva was dismissed from work by the internal disciplinary committee in line with the provisions of our registered internal code of conduct.  The same code, chapter 12 subsection 12.1 provides that and I quote, “Any employee who is aggrieved by the decision of the Disciplinary Committee may lodge, within a period of six (6) working days of being advised of such a decision taken, an appeal in writing to the Head of Department through the Human Resources Department with a copy of the appeal to the Chairperson of the Workers Committee.  (My underlining).  Please note that this provision grants the right of lodging an appeal to any aggrieved employee and not to an aggrieved Legal Practitioner.

In view of the above, we regret to advise you that the notice of appeal against conviction and sentence in regard to Godwin Madziva which you sent to us is invalid and cannot be considered.

However, we take pleasure to confirm that Godwin Madziva still has right to appeal in terms of the provisions of our registered internal code of conducted (sic) as quoted above.  At this point, the fact that Madziva hasn’t yet lodged an appeal still remains.”

The factual background of this matter in summary is that Applicant had been in Respondent’s employ as a salesman.  He was arraigned before a Disciplinary Committee facing charges of embezzlement and gross negligence of duty, in terms of the Respondent’s code of conduct (THE CODE).  He was found guilty and was dismissed from employment with effect from 17th January, 2014.

In the outcome of disciplinary hearing letter dated the 4th January, 2014, Applicant was advised of his right of appeal as provided in the Code.  It was stated;

“You are hereby reminded of your right to/of appeal in terms of Section 11 of the Internal Code of Conduct, which must, should you so decide, be formally submitted within six (6) working days of receipt of this outcome.”

Section 11 of the Code reads as follows:-

“11.	APPEAL PROCEDURE

The decision of the disciplinary committee shall be binding unless and until appealed against.

The human Resources Department will advise the employee that if he wishes to lodge an appeal to the appeals committee this must be done in writing within six (6) working days from the date of receipt of the Disciplinary committee’s decision.  Out-of-time appeals will not be considered and will be communicated in writing to the employee, unless the employee can advance reasonable grounds for delay.”

Section 12.  APPEAL HEARING PROCEDURE

provides in subsection

“1.	Any employee who is aggrieved by the decision of the Disciplinary Committee may lodge, within a period of six (6) working days of being advised of such a decision taken, An appeal in writing to the Head of Department through the Human Resources Department with a copy of the appeal to the Chairperson of the Workers Committee” (Emphasis added).

Aggrieved by the Disciplinary Committee’s decision, Applicant approached a firm of legal practitioners Hamunakwadi, Nyandoro, Nyambuya (His legal practitioners of record) who then prepared and filed with the Respondent Human Resources Manager a document titled NOTICE OF APPEAL AGAINST CONVICTION AND SENTENCE (THE NOTICE).

The Notice read,

“PLEASE TAKE NOTICE  that the Appellant hereby notes an appeal against the conviction and sentence imposed by the Chairman of the Disciplinary Committee on 4th February, 2014.

The Appellant was convicted of contravening section 9.2.4.(v) of the Internal Code of Conduct and 9.2.4. that is embezzlement and gross negligence of duty respectively.”

The 4 grounds of appeal are clearly stipulated in the notice.

In its prayer, the notice states –

“WHEREFORE the Appellant prays that the conviction and sentence be set aside.”

(Underlining is my own).

It is to this notice that the Human Resources Officer in the response (supra) advised the Appellant’s legal practitioner that the appeal was invalid and cannot be considered as it was lodged by the legal practitioner and not the Appellant.  In the response, the Human Resources Officer advised that the right to lodge an appeal is conferred to an aggrieved employee and not an aggrieved legal practitioner.

One wonders where the Human Resources Officer got the idea that it was the legal practitioner and not the Applicant who was aggrieved.  His reasoning totally defies logic as the notice clearly states –

“PLEASE TAKE NOTICE that the Appellant hereby notes an appeal…..”

The prayer also states –

“WHEREFORE the Appellant prays ………”

The fact that the notice was prepared by Applicant’s legal practitioner does not by any stretch of imagination make the legal practitioner the aggrieved party.  If the Code prohibits representation (in the hearing) by a legal practitioner, the Human Resources Officer should simply have advised Applicant so instead of invalidating his appeal on the basis that the legal practitioner is the aggrieved party.

Further it is well established in our law that disciplinary proceedings must not be handled according to the rigorous standards of a court of law.  There must be flexibility.

GARWE, JA emphasized this position by stating that proceedings before Disciplinary Committee’s established under Codes of Conduct are intended to be flexible and less formal than proceedings in a Court of law.

SABLE CHEMICALS INDUSTRIES LIMITED

vs

DAVID PETER EASTBROOK SC 18/2010

In casu, the other reason why the notice was invalidated is because it was addressed to the Human Resources Manager and not copied to the Workers Committee Chairperson and that it was not specifically addressed to the Head of Department.  I find this to be nit picking on the part of the Respondent.

If the Human Resources Manager is not in the Human Resources Department one wonders in which Department he/she falls in.  It was for the Human Resources Manager to forward the notice to the Head of Department and be courteous enough to advise Applicant to copy the Chairperson of the Workers Committee.  In my view these are technicalities which are of no consequence at all.  What prejudice one might ask, would Respondent suffer as a result of these very minor anomalies?  None at all in my view.  Respondent did not submit that it would have suffered any prejudice if it had accepted the notice as it was.  There was substantial compliance with Section 12(1) as such I find that Respondent’s refusal to accept the notice was grossly unreasonable and should not be allowed to stand.

Applicant’s prayer is that he be reinstated without loss of salary and benefits or he be paid damages.  Applicant contends that Respondent cannot now hear his appeal because it no longer has jurisdiction to, as the 6 days prescribed in the Code have since lapsed.

Reinstatement or payment of damages is the kind of relief one seeks on an appeal and not on review.

ZIMBABWE FARMERS CORPORATION LIMITED

vs

GEZA 1998 (1) ZLR 137 S at 139A.

It is also trite that labour matters should not be decided on technicalities.

DALNY MINE vs MUSA BANDA SC 39/99

It is a trite principle of the law that a person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly.  He must escape such consequences because he is innocent.

AIR ZIMBABWE (PRIVATE) LIMITED

vs

CHIKU MNENSA  &  MAVIS MWARWEI SC 89/04

I am not persuaded by Applicant’s submission that Respondent no longer has jurisdiction because the time within which to hear the appeal has lapsed.  By finding that the notice substantially complied with Section 12 of the Code, and was properly filed, it means the time will start running from the date ordered by the Court.

As Applicant was found guilty and dismissed, he retains that status until his appeal is determined by the Appeals Committee.

Accordingly it is ordered as follows:-

That the refusal by Respondent to accept, hear and determine Applicant’s appeal be and is hereby set aside.

That Respondent accepts and considers Applicant’s notice of appeal filed by his legal practitioners within six (6) working days of receipt of this judgment as per Section 12. 2 of the Code.

Each party is to bear its own costs.

Hamunakwadi, Nyandoro & Nyambuya – Appellant’s legal practitioners

Honey & Blanckenburg – Respondent’s legal practitioners