Jelta Bere v Jacob Bethel Corporation (Zimbabwe) (Pvt) Ltd and Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 22 MAY 2024
JUDGMENT NO LC/H/4/25
CASE NO LC/H/290/24
In the matter between: -
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 22 MAY 2024

JUDGMENT NO LC/H/4/25 CASE NO LC/H/290/24

In the matter between: -

JELTA BERE	APPLICANT

JACOB BETHEL CORPORATION	1ST RESPONDENT (ZIMBABWE) (PVT) LTD

DANIEL DZOBO N.O.	2ND RESPONDENT

Before the Honourable Kudya J

For the Applicant:	Mr T Marimo (Legal Practitioner) For the 1st Respondent:	Ms C Mahlangu (Legal Practitioner) For the 2nd Respondent:	No appearance.

KUDYA, J:

This is an application for the review of disciplinary proceedings chaired by Dzobo (N.O.) which proceedings resulted in applicant employee being found guilty and dismissed from employment following allegations of acting contrary to the conditions of her employment in contravention of Section 4 (a) of the Model Code SI 15 of 2006.

Facts giving rise to the review application are that the applicant who was in the employment of the respondent company for about 3 years as a Personal Assistant (PA) to the Managing Director (MD) was accused of deleting certain emails from the Managing Director’s account which account the Personal Assistant had access to in the course of duty. She was

brought before a disciplinary authority in the person of one Dzobo (N.O.) a labour consultant. Following the disciplinary hearing Dzobo found the PA guilty and penalised her with dismissal. The PA was unhappy with the manner in which the proceedings leading to her dismissal were conducted. She thus filed the review application which is the subject of this judgment.

The review grounds can be summarised as follows: -

Dzobo (N.O.)’s appointment was unlawful since he did not hail from the employer’s structures as required by the Model Code. He was hired by the Managing Director without a board resolution sanctioning his appointment so he was hired solely to dismiss the Personal Assistant.

Dzobo (N.O.) took the role of the complainant in the matter by continually descending into the arena thus exhibiting bias towards the Managing Director’s case.

Dzobo (N.O.) was wrong to allow the Managing Director to be both the complainant and the witness in the matter. He should only have been a witness as he was the offended party.

Dzobo found the Personal Assistant guilty and dismissed her from work in a matter where the Managing Director had a predetermined position which he uttered during a meeting with the Personal Assistant and during disciplinary proceedings to the effect that he could no longer work with the Personal Assistant following the alleged deletion of the emails.

Dzobo was wrong to impose the dismissal penalty which prerogative had to be exercised by the employer and not the adjudicator.

In the result the Personal Assistant prayed that the disciplinary proceedings leading to her job loss be set aside and be substituted with an order reinstating her to her original position without loss of salary and benefits or that she be paid damages in place of reinstatement if reinstatement was no longer feasible. She prayed during oral submissions that if the court was not with her on reinstatement, she prayed that the matter be remitted for a denovo hearing before an impartial umpire.

In response to the review the employer maintained the following in summary: -

Disciplinary proceedings minutes captured everything that was said during the hearing so the argument that the minutes were doctored is baseless. In any event the review grounds did not raise a challenge on the minutes so it should be taken that these were a correct record of what transpired during the disciplinary hearing.

The Personal Assistant was not a board member so she could not say that Dzobo was not appointed by the board. There is no law which required a board resolution for the

appointment of a disciplinary authority. When the disciplinary proceedings were held the Personal Assistant did not challenge Dzobo’s appointment so she could not raise such as an afterthought.

The adjudicator ruled on all the objections raised at the hearing. There is no evidence in any of the rulings that any of them was motivated by bias.

Complainant can also be a witness in a matter. There is nothing at law which bars that. Dzobo was not hired to dismiss the Personal Assistant. Evidence was led that the trust between the Personal Assistant and the Managing Director had broken down but that did not connote a premeditated outcome. The utterance about the broken trust did not exonerate the Personal Assistant from her wrongdoing.

There was nothing wrong with Dzobo as the disciplinary authority to convict and dismiss the Personal Assistant so long as it could be shown that the infraction went to the root of the employment relationship.

In any event penalty remains at the employer’s discretion. The disciplinary proceedings were done procedurally. Employer therefore prayed that the review application be dismissed with costs.

At the onset of the review proceedings the employer took the point that the employee could not ask the court to also determine the matter on the basis of an answering affidavit and a 2nd set of minutes which the Personal Assistant said reflected what happened at the disciplinary hearing as opposed to the minutes filed from the appointed minute taker. The employer requested that these 2 documents be expunged from the record because the answering affidavit was filed without leave of the court and because the only minutes which could be relied on were those by the appointed minute taker.

In response, the lawyer for the employer conceded the breach of the rules in relation to the filing of the answering affidavit and the 2nd set of minutes. He however hastened to mention that the breach notwithstanding, it was his request that the 2 documents be allowed by the court to form part of the record but he remained entirely in the court’s hands on that.

The court ruled on the point in limine that the point was merited so it had to succeed. It indicated further that the reasons for allowing the point would be contained in the judgement on the merits of the review application. The reasons in brief appear below:

Answering affidavit

It is settled that post the heads of argument by both parties no other pleading shall be filed with the court unless that is done with the leave of the court See Rule 26(6) Labour Court Rules 2017.

In the case at hand the concession by the Personal Assistant’s lawyer settles the issue that such leave was not sought. There was also no mention of the importance of the answering affidavit that could warrant the court granting such indulgence if it had been sought. It is for the above reason that the court allowed that the answering affidavit be expunged from the record.

2nd Set of Minutes

In like manner with the answering affidavit no submission were made to show why it was necessary for the court to admit for the record the 2nd set of the minutes which the Personal Assistant said she recorded privately. It was on record that there was an appointed minute taker who compiled the minutes which were filed in this matter. There was no challenge of such at any stage suggesting that such correctly depicted what transpired at the hearing. The law is clear that what is not challenged is admitted. See Dhliwayo vs Warman Holdings HC B 12 /22. It is clear that no meaningful purpose is served by admission of the 2nd set of minutes. In any event once cannot rule out manipulation of such. In the result the admission of the 2nd set of minutes was accordingly denied for the above reasons.

Turning to the merits of the review application each of the grounds is addressed below: -

The law on review is settled. See Sec 29(2) High Court Act and Rule 20 Labour Court Rules 2017.

Dzobo’s appointment

It is settled that a disciplinary authority is ordinarily set up from the echelons of the employer unless for a good reason such standard cannot be met for example due to the rank of the employer being tried or the size of the organisation. See National Engineering Workers Union vs Dube SC1/16 Such circumstances may dictate that the authority be out sourced. It is there not unusual that an arbitrator can be appointed outside the rank and file of the employer’s structures. There is therefore nothing in the case at hand which stopped Dzobo N.O. to be appointed an adjudicator in the matter at hand. The ground challenging the appointment being without substance should fail.

BIAS

The test for bias is settled. See Leopard Rock Hotel Co Pvt Ltd and another vs Wallen Construction Pvt Ltd 1994(1) ZLR25.Applicant says that Dzobo continuously descended into the arena when the complainant was answering questions. She therefore formulated the opinion that Dzobo was biased against her. In response, the employer maintained that, Dzobo had occasion to rule on all the objections raised by the employee and none of the rulings demonstrated bias. A reading of the record of proceedings demonstrated that there were indeed sections where Dzobo made comments ahead of the employer’s answers and that indeed could have given the employee the view that Dzobo was biased against her. It is granted that institutional bias is expected in disciplinary proceedings but in the case at had where the employee was already unhappy with the appointment of the arbitrator it was not farfetched for her to conclude that the arbitrator was biased against her when he began to comment on the matter ahead of the employer. The ground being merited should succeed.

Witness/Complainant

The employee quizzed why the Managing Director had to be the complainant and not a witness yet he was the offended party. The court agrees that it is not uncommon that in disciplinary proceedings the complainant can wear both hats that is of a witness and that of a complainant. In the case at hand, it is clear that the Managing Director was the aggrieved party hence he could wear the hat of the complainant. He was also the party who could tell the arbitrator how he was offended by the Personal Assistant. The fact that he only took on the complainant role and did not wear the witness hat meant that he put himself out of reach of cross examination by the employee. To that extent the employee’s right to be heard on the merits was compromised. The ground on the complainant /witness argument being merited should succeed.

Predetermined Position

The employee says the matter was predetermined because the Managing Director made utterances to the effect that he could no longer work with her. Facts of the matter that the employee was accused of deleting the Managing Director’s emails speak for themselves that trust had been broken between the two. The utterances therefore did not add or subtract from the fact that no working relationship could be revived in those circumstances. The argument about predetermination is therefore without foundation. It should fail.

Penalty

It is settled that the imposition of a penalty is the prerogative of the employer. See Nyawasha v Circle Cement SC60/03. There is however no law which says the utterances of the penalty should not emanate from the arbitrator once it has been established before the arbitrator that the infraction calls for a penalty within the adjudicator’s powers. The ground being without foundation should fail.

In the ultimate, it is clear that some of the review grounds are merited whilst some are not. It is settled that an accused employee should not escape on technicalities. See Air Zimbabwe vs Mnensa SC89/04. In the case at hand the justice of the case dictates that the matter be heard afresh by a different arbitrator. It is so ordered.

IT IS ORDERED THAT

Review grounds of review on appointment of arbitrator, predetermination of matter and penalty being without foundation they be and are hereby dismissed. Review grounds on bias and complainant/witness role being merited they be and hereby succeed. The proceedings before Dzobo NO be and are hereby set aside. In their place the matter is remitted for determination afresh by a differently constituted disciplinary body. Each party bears own costs.

Mabundu and Ndlovu Law Chambers, Applicant’s Legal Practitioners

Maposa Mahlangu Attorneys, Respondent’s Legal Practitioners