Judith Mhizha v Premier Service Medical Aid Society

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/402/14
HELD AT HARARE 13TH MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/402/14

HELD AT HARARE 13TH MARCH 2014			CASE NO LC/H/247/12

& 4TH JULY 2014

In the matter between:-

JUDITH MHIZHA						Appellant

And

PREMIER SERVICE MEDICAL AID SOCIETY		Respondent

Before The Honourable L Hove, Judge

For Appellant		Advocate T Mpofu

For Respondent		Mr A.K. Maguchu (Legal Practitioner)

HOVE, J:

At the hearing of this matter, the parties agreed that the court should proceed to hear the application for review first.

The applicant was in this case employed in a managerial position by the respondent.  She was alleged to have committed several acts of misconduct.  A hearing was conducted and the applicant was found guilty and dismissed.

She was aggrieved by the decision to both find her guilty and to dismiss her.  She noted an appeal with the Appeals Committee.

The Appeals Committee advised her that the matter would be dealt with on a specific date and that she was invited to file her submissions and heads of argument.  The matter was to be decided on the basis of the hearing committee’s record and the submissions and heads of argument which the parties were to submit.

The applicant’s representative requested that they be allowed to file their papers one day later than had been indicated by the Appeals Committee.  This request was granted and on the scheduled date, the papers were filed and a decision was made and availed to the applicant that her appeal had been unsuccessful, the decision to find her guilty and to dismiss her was upheld by the Appeals Committee.

The appellant was aggrieved.  She noted an appeal against the Appeals Committee’s decision and also filed this application for review.

She raises the following grounds for review

The Appeals Committee failed to conduct a hearing in the matter.

The committee failed to keep a record of proceedings.

The committee admitted hearsay evidence

The decision was grossly unreasonable.

The Appeals Committee also failed to apply its mind to the facts and merits of the case; and

Interest in the cause, bias and malice.

During the hearing, most of these issues were not argued by the

applicant’s representative who preferred to zero in on the issue that the Appeals Committee had failed to conduct a hearing and also failed to afford the applicant the right to have the final say in the appeal proceedings.

I will however consider all the issues raised in the application for review including those issues not specifically argued during the hearing.

Whether or not the Appeals Committee failed to conduct a hearing

The applicant argues that the right to be heard was denied and she was

denied the right to have the final say.  It was argued in her behalf that various decisions in both the High Court and the Supreme Court have stressed the need for a fair hearing.  It was submitted that in casu the principles of fairness were violated.  The Appeals Committee, it was further argued, unilaterally decided not to hold a hearing, the appellant did not have an input in the decision not to conduct a hearing.

The relevant Code of Conduct does not prescribe that there shall be an oral hearing nor does it outline the procedures to be followed by an Appeals Committee.  It however provides for the right to appeal.  The law does require that fairness be observed.  Professor G Feltoe in a Guide to Zimbabwean Administrative Law 3 ed 1978  p 9 stated that;

“tribunals are not courts of law.  They are supposed to operate on an informal and flexible basis.  They are therefore not bound to observe the formal and rigid rules of procedure and of evidence which apply in courts of law.  They must, however, adopt procedures which allow for a fait hearing of cases and,…”

The need for informal hearings is particularly endorsed by our courts in relation to  labour disputes.  The right to be heard need not necessarily include the right to an oral hearing.  Once an employer affords an employee an opportunity to submit a written response, the right to be heard would have been offered.  This right need not even extent to the right to cross examine the case of Chataira v Zesa 2001 (1) ZLR 50 (H) has clearly outlined the position of law in regards to the informality of proceedings in labour disputes.  The question that one needs to ask is whether or not under the circumstances, the Appeals Committee adopted a procedure which allowed for fairness?

In casu, the response to that question is in my opinion, in the affirmative. The Appeals Committee advised the applicant that it would be considering the matter on a particular date and the applicant was requested to file with it any submissions she may want the committee to take into consideration.  The employer representative was also called upon to make their submissions. This in my opinion was fair.  The applicant did not object to this procedure and she cannot object now after having behaving in a manner that most certainly gave the Appeals Committee the impression that its proposed procedure was not disagreeable.

She did  not object to the appeal being dealt with on record and must be taken to have waived any entitlement she may have had to be heard orally.

See in this regard the case of Zisco Steel v Chidziva & Others 1997 (2) ZLR 368 (S).

This ground for review is therefore without merit and cannot succeed.

Failure to keep a record of hearing by the Appeals Committee

The applicant argues that the fact that there was no record of

proceedings means that no hearing was conducted.    As a result the applicant was not heard.

This ground also lacks merit.  The fact that the Appeals Committee asked for the submission from the parties and advised that the appeal will be dealt with on the record coupled with the fact that there is evidence from members of the Appeals Committee on record to the effect that they met to consider the appeal,  show that the Appeals Committee met and considered the Appeal on the record. The Appeals Committee members explain that they considered the matter and wrote a judgment but did not keep a record of their deliberations as they were not required to keep such a record.

Nothing has been advanced to rebut this evidence that the Appeals Committee sat to consider the appeal on the record.  The onus is on the applicant to show that the committee did not hear the appeal.  The fact that they came up with a judgment shows that they met to consider the matter.  The applicant has not managed to show the court that this was not so.

3.  They admitted hearsay evidence

Domestic tribunals, as earlier indicated, are not required in law to

observe strict rules of evidence and hearsay evidence is permissible in there tribunals which are not courts of law.

See Chataira v Zesa (supra)

Nothing therefore turns on this ground.

4.  The decision was grossly unreasonable

To be successful with this ground, the applicant must be able to show

that the decision was,

“so gross that something else can be inferred from it, either that it is inexplicable except on the assumption of mala fides or ulterior motives.”

Union  Govt v Union Steel Corp  1928 AD 220

She can also show that the decision was so grossly unreasonable that no sane person having applied their mind to the issues raised could have come to such a conclusion.

The applicant’s papers in casu go nowhere near showing that degree of unreasonableness on the part of the decision maker.  They show that a different decision could have been made on the facts but this falls far too short of the standard required.  The applicant ought to have established that the decision was not just unreasonable but grossly unreasonable.

The applicant failed to do this.  The record actually shows that she has made some admissions of funds received but never properly accounted for the received funds.  She also admits to have been in Harare when she claimed a travel allowance to travel from Bulawayo to Harare.

There is thus no unreasonableness on the part of the Appeals Committee let alone gross unreasonableness.  This ground for review has no merit.

5.  	Did the Appeals Committee fail to apply its mind to the facts and merits of the case?

Again I find that there really is nothing on the part of the applicant to

Substantiate this allegation.  The record speaks for itself.

The decision by the Appeals Committee states that they had considered the decision of the hearing committee and the evidence on record and found that the decision of the hearing committee could not be faulted.

Specific incidences on how it is alleged the Appeals Committee ought to have conducted itself if it had properly considered the matter, ought to have been outlined to enable the court to consider the allegations.  No specifics are brought to the court’s attention.  All the court has are generalized and bold assertions.  The applicant has failed to make its case and must also fail on this ground.

6.  	Interest in the cause, bias and malice

I have carefully gone over the paragraph 18 of the applicant’s founding

affidavit to ascertain what it is that she alleges was done by the Appeals Committee to raise a reasonable suspicion of bias, malice or interest in the cause.

Again there are no specific allegations, just generalized and bold assertions. The test to prove bias has not been satisfied.

In the case of City Suburban Transport (Pvt) Ltd v Local Board Road Transportation Johannesburg (1932 WLD) 100 the court gave the test for bias in the following words;

“The test (for bias) appears to be whether the person challenged has so associated himself with one of the two opposing views that there is a real likelihood of bias or that a reasonable person would believe that he would be biased.”

In order to establish bias, malice and interest in the cause, the onus rested on the applicant who is alleging bias, interest in the cause or malice to show that.

Bias, malice or interest in the cause was clearly and actually displayed, or

That in the circumstances there was a real possibility of bias

The applicant makes no such case in the founding affidavit.  She has failed to discharge the onus which was on her to establish her allegations.

In the result, the applicant has failed to make a good case for review and

the application cannot succeed.

I therefore make the following order;

I application for review is dismissed.

There is no order as to costs.

Mutamangira & Associates, appellant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners