Israel Mubaiwa v PetroZim Line Private Limited & 2 Ors

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/36/24
TH
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 30TH JANUARY, 2024 AND

1ST FEBRUARY,2024

JUDGMENT NO. LC/H/36/24

CASE NO. LC/H/09/22

ISRAEL MUBAIWA	APPLICANT

And

PETROZIM LINE PRIVATE LIMITED	1ST RESPONDENT

WP MANDINDE N.O.	2ND RESPONDENT

P. MASVIKENI N.O.	3RD RESPONDENT

Before the Honourable Kachambwa, Judge;

For Applicant:	Adv R. G. Zhuwarara (Legal Practitioner) For Respondents:	P. Dube (Legal Practitioner)

KACHAMBWA, J:

The application

This is an application for review of the disciplinary proceedings of the 1st Respondent as carried out by the 2nd and 3rd Respondents. The application is in terms of section 92EE of the Labour Act [Chapter 28:01] the section reads that;

“92EE Grounds of review by Labour court

Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection

1

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 proceeding or the decision of the arbitrator or adjudicating authority concerned”.

Grounds for Review

The grounds for review are that;

“There was gross irregularity in the disciplinary proceedings and appeal proceedings in that:

The Applicant and the Respondent having entered into a plea bargain agreement in terms of which the Applicant was to plead guilty to the charge in return for the lesser sentence of demotion, the Respondent could not resile from that agreement and then dismiss the Applicant instead of demoting him as per the plea bargain agreement.

The Respondent, having unilaterally decided to resile from the plea bargain agreement, was enjoined to give reasons for departing from the agreed position and to avoid Applicant an opportunity make representations thereto and to present his defence, if any, to the charges and the failure to do so violated the Applicant’s right to a fair hearing.

Background To The Review

The applicant was charged of acts of misconduct at the workplace. The procedure for the hearing was that there would be a hearing committee and a prosecutor/presenter of the case. At the hearing the prosecutor (who is late)

entered into a plea bargain with the applicant’s counsel. Unfortunately the plea bargain was not disclosed to the hearing committee as such. The applicant was heard and he apparently pleaded guilty and was convicted. However the penalty did not follow the plea bargain. The Applicant appealed to the Appeals Committee but did not raise the review issues. It is noted that Codes of Conduct generally do not talk of review but appeal. In practice an appeal at the workplace includes review issues. In this case that Applicant did not do so but has applied for review at the Labour Court.

The Response To The Application

The Respondent opposed the application on the point in limine that there was no irregularity on the part of the disciplinary authority as the authority was not aware of any plea bargain. The Applicant was said to have been convicted because of his apology and thereafter he was given the chance to address in mitigation and a penalty of dismissal was imposed. It was argued that that process could not be impugned.

Suffice to say that the point in limine was dismissed in an earlier judgment. The parties were thereafter invited to make submissions on the merits. They said that in fact the merits had also been argued already in the argument on the point in limine and the court should proceed to pass judgment on the merits. It is this mix up that has caused the delay in the passing of the judgment. The matter had remained in the system as one waiting for further hearing.

The Argument On The Merits

The argument on the merits is a very simple one. The applicant alleged that there was a plea bargain that was not followed. This was entered into between him as represented by his counsel and the prosecutor as representing the employer. The record does show that the proceedings were halted on the request of the prosecutor who went out of the room and came back with a

changed plea position. It will be mentioned though that the record does not show a clear cut plea of guilty. The Applicant was not forthright but the proceedings were carried out to finality of imposing the penalty of dismissal. It is this penalty that caused the about turn since the bargain was said to be for a penalty of demotion.

The employer’s argument was simply that the disciplinary authority was not aware of the plea bargain and therefore it could not be held accountable to it. It cannot be blamed for not adhering to something that it was not aware of. Further, the authority had in fact gone by the applicant’s apology as the confession of committing the misconduct and as such it had satisfied itself that the Applicant was pleading guilty to the charges. The Applicant was challenged to prove his allegations.

The Applicant was insistent that his plea of guilty was a result of a bargain. The bargain could be seen in the change of positions by the parties when they came back from their consultations. The prosecutor was representing the employer and therefore bound the employer in the bargain. The bargain was said to further proved by the address in aggravation which was as good as an address in mitigation as pointed out by the disciplinary authority.

The Issues For Determination

It appears to me that the issues for determination are;

Whether there was a plea bargain between the parties

If there was a plea bargain was the disciplinary authority bound to follow it?. If not that would be the end of the story.

If the disciplinary authority bound to follow it what is the remedy for not following it?.

By and large the parties were right to say that they had argued the merits when argued on the point in limine. The issue of whether there was a plea bargain is answered by considering what the prosecutor and the Applicant’s counsel did resulting in both of them abandoning their original position. The Applicant abandoned his defence while the prosecutor was no longer calling evidence. Could the Applicant abandon his plea of not guilty in order to be dismissed from employment?. Certainly not. And why did the prosecutor apparently address in aggravation as if he was the counsel for the Applicant?. It is unfortunate that the prosecutor is late. But in all probability there was a plea bargain. It is accordingly found that there was a plea bargain. The employer was represented by the prosecutor. The same applies to the disciplinary authority. It is bound by the decision of the prosecutor to enter into such a bargain. These two parties represented the employer on the one side while the Applicant was represented by his counsel.

The disciplinary authority did not follow the plea bargain. It was for the prosecutor to disclose to it the plea bargain. The Applicant’s counsel should equally have made it known to the disciplinary authority before the penalty was considered. Both these parties’ handling of the plea bargain left a lot to be desired on this issue.

The effect of a plea bargain is to bind the parties to the plea or else they go to a full trial where an accused party defends itself. If one party does not go along with the plea then the parties must prove their claims. It is unfortunate that neither party referred to any local authority on this issue. Nevertheless the American precedent referred to succinctly lays out the way this law applies. Plea bargain has its roots in criminal trials. It can be likened to a deed of settlement. One may also think of it in terms of the freedom of  contract where the parties are free to agree on how to solve their problem as long as it is legal.

In the United States Supreme case of United States v Ewing 480F.2d 1141 (1973) Ewing had bargained for the sentence and pleaded guilty on that understanding. However he was sentenced to imprisonment rather than the probation that he had bargained for. The Government opposed his appeal on sentence. The court stated that;

“Strong guidance is provided by Santobello v New York (404

U.S 257, 92 S. Ct 495, 30 L. Ed. 2d 427 (1971) in that case the defendant agreed to enter a guilty plea in exchange for the Government’s promise not to make a sentence recommendation. At the sentencing hearing the Government inadvertently failed to keep its part of the bargain. The Supreme Court held that the Government’s failure to afford the defendant the benefit of his bargain invalidated the guilty plea regardless of whether or not the sentencing Judge was influenced by that failure.

Fair administration of the criminal process and the interest of justice do not permit the prosecution to violate, whether intentionally or unintentionally, promises made in the negotiation of guilty pleas….

Surely, when Ewing obtained the Government’s promise not to oppose probation in exchange for his plea of guilty, he did so in the expectation that the benefits of that promise would be available throughout the proceedings relevant to the determination of his sentence. The Government was obligated to fulfil its commitment at least until the question of Ewing’s sentence was finally resolved by the sentencing Judge”.

The essence of a plea bargain cannot be put in clearer terms than the above. This reasoning applies in the employment situation too. A plea bargain is the same whether it is a criminal or civil case. It is a bargain binding the parties. In an employment situation the disciplinary authority and the prosecutor represent the employer. Their decisions bind the employer.

The Law

This court is not bound by the United States law. However the position enunciated by that law is the real essence of the law of plea bargaining. Unless there is a clear contrary position announced in our law there is no reason to avoid such a clear position. This court is convinced that that is the law to follow and accordingly it shall do so.

Applying The Facts To The Law

The Applicant and the employer entered a plea bargain agreement. The employer did not fulfil its side of the bargain. The agreement was violated. The conviction and the penalty cannot stand. The proceedings must be set aside.

Disposition

In the result the decision of the disciplinary authority and that of the Appeals Committee must be set aside. The application must succeed.

Accordingly it is ordered that;

The application for review be and is hereby upheld.

The decisions of the disciplinary authority and that of Appeals Committee be and are hereby set aside each.

The Applicant reverts to the status quo.

The matter be and is hereby remitted for a trial de novo before a different panel within 30 days of this judgment or such further period as may be allowed by the court on good cause shown.

In the event that the employer fails to hear and determine the matter within the prescribed period, the employer shall reinstate the Applicant without loss

of salary and benefits from the date such salary and benefits ceased. If reinstatement is no longer possible the employer shall pay damages in lieu of reinstatement the quantum of which may be agreed between the parties failing