Itai Ndapasuwa v Lancet Clinical Laboratories Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO
LC/H/153/14
HELD AT HARARE 26TH FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/153/14

HELD AT HARARE 26TH FEBRUARY 2014	CASE NO LC/REV/H/44/13

&28TH MARCH 2014

ITAI NDAPASUWA						Applicant

LANCET CLINICAL LABORATORIES			Respondent

ZIMBABWE (PVT) LTD

Before The Honourable G Musariri, Judge

For Applicant		Ms T Barangwe, Unionist

For Respondent		Ms D.V. Gapare, Attorney

MUSARIRI, G:

Applicant applied for a review of disciplinary proceedings which led to his dismissal.  Respondent opposed the application.

The application was based on five (5) grounds listed as follows,

“1.	The Chairperson of the Disciplinary (sic) lacked jurisdiction in terms of

S.I. 15/06 to preside over the proceedings.

2.	There was material bias on the part of the Chairperson,

3.	The decision to terminate Applicant’s contract of employment was

unilaterally imposed by the Chairperson of proceedings without consent of the committee despite him lacking jurisdiction in the proceedings.

4.	Applicant was never allowed to address in mitigation before the penalty was imposed inspite of his rights under section 4 e of S.I. 15 of 2005.

5.	The Chairperson failed to exercise his discretion and apply a lesser penalty other than dismissal which is not obligatory in terms of the code especially to a first offender like Applicant in this matter.”

These grounds raise essentially two issues.  I will deal with them under the sub-titles indicated hereafter.

Chairperson’s authority

It is common cause that the hearing was conducted by a Consultant hired by Respondent.  The Consultant purported to act in terms of the Labour (NationalEmployment Code of Conduct) RegulationsS.I. 15/06 (hereafter called the Code.) Section 6 (2) of the Code provides that,

“(2)	Upon serving the employee with the suspension letter, the employer

shall, within 14 working days investigate the matter and conduct a

hearing…”

(The underlining for emphasis is mine.)

The underlined portion shows that the employer is empowered to conduct the hearing.   This is further confirmed by the provisions of section 6 (4) of the Code which provide that,

“(4)	At a hearing in terms of subsection (2), an employee shall have the right to-

(a)…

(b) appear in person before the employer or the employer’s representative or disciplinary authority as the may be and…”

It is clear to me that the Code empowers the employer to conduct the hearing in person or by proxy.  Incasu the employer hired a Consultant to represent him.  The Consultant is the person referred to as Chairperson in the grounds for review.  I am satisfied that the Chairperson as the employer’s representative, had the requisite authority to conduct the disciplinary hearing.  Thus the complaint about failure to consult the disciplinary committee falls away.

The complaint about bias was not followed up and neither was it substantiated.

Penalty

This where the employer fell foul of the Code.  Section 6 (4) (e) of the Code gives the employee the right to

“(e)	address in mitigation before the ultimatepenaltyis imposed.”

The record shows that hearing was ended on Thursday 9th May 2013 at1326 hours.  At that stage the Chairman adjourned proceedings to consider his determination.  No verdict had been pronounced.  The next thing that happened was the Chairperson’s letter dated 21st May 2013 addressed to Applicant.  The relevant part read thus,

“Having considered all the evidence available, I find you guilty of gross misconduct.  This shall result in summary dismissal with effect from the date of your suspension.”

No opportunity was availed to Applicant to address the Chairperson in mitigation of the ultimate penalty.  Furthermore the excerpt shows that the Chairperson failed to appreciate that he had a discretion on penalty.  He thought he was compelled to impose a dismissal.  This is contrary to Section 7 (3) of the Code which clearly provides a discretion to impose a lesser penalty even where dismissal is prescribed.  The penalty imposed is thus vitiated by the failure to comply with the appropriate provisions of the Code.

Wherefore it is ordered that,

The application is partially granted so that;

The dismissal of Applicant from employment by Respondent is hereby set aside; and

The matter is remitted to Respondent for a proper hearing of the appropriate penalty within sixty (60) days of this order; and

If Respondent fails to conduct the hearing in terms of paragraph 1 (b) of this order,

Respondent shall reinstate Applicant without loss of salary & benefits, or

Respondent shall pay Applicant damages for loss of employment in a sum either agreed by the parties or assessed by this Court.

G MUSARIRI

J U D G E