Keziya Chikwati v Vineyard Funeral Assurance

### Preamble

IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO. LC/H/495/2014

HARARE, 09 JULY 2014

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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/495/2014

HARARE, 09 JULY 2014 CASE NO. LC/H/857/13

AND 01 AUGUST 2014`

In the matter between:-

KEZIYA CHIKWATI Appellant

And

VINEYARD FUNERAL ASSURANCE Respondent

Before Honourable E Muchawa, Judge

For Appellant - Ms R. Muchenje (Legal Practitioner)

For Respondent - Ms Ngodza (Legal Practitioner)

MUCHAWA, J:

This is an appeal against the decision of the Negotiating Committee of the National Employment Council for the Commercial Sectors. That decision reversed that of the Local Joint Committee and confirmed appellant’s guilty verdict and dismissal penalty.

The appellant was employed by the respondent as a receptionist when, on the 6th November 2012 she was suspended, on allegations of negligence in the course of her duties for a missing blank receipt number 23143. This was done in terms of the NECCS employment Code of Conduct. Following a disciplinary hearing, appellant was found guilty and dismissed.

An internal appeal was lodged with the Managing Director. I wish to quote the response to the appeal by the Managing Director.

“RE: APPEAL AGAINST THE DECISION OF THE DISCIPLINARY COMMITTEE

Reference is made to your letter dated 14 December 2013 in which you categorically challenged the manner in which your disciplinary hearing was conducted.

In particular, you challenged the manner in which the offence was cited in the proceedings.

Further, you challenged the weight of the evidence tendered against you. In your view, the evidence was not sufficient to secure your conviction for the preferred evidence. Further still (sic), you raised deep concerns regarding the delay in the determination of your case.

I have taken note of your basis of appealing against the decision of the Designated Officer. Having taken into account the record of proceedings and my own investigations, I hereby set aside the Designated Officer’s decision. Meanwhile, you are advised to report for duty as from Friday 18th January 2013. Any other outstanding issues regarding remuneration will be resolved once you report for duty.

Kindly note that my decision does not have the effect of permanently staying disciplinary proceedings against you. This matter entirely rests with the Designated Officer.”

Following her reinstatement without loss of salary and benefits, appellant was subsequently suspended again on the 22nd January 2013. The facts giving rise to the charge were still the same but the charge was revised to be under section 3, Group IV offences of the relevant Code instead of the earlier section 3, Group II offence. The new charge was “lack of skill which an employee expressly or by implication holds out to possess.” Appellant was notified of the new hearing date but did not turn up. She was found guilty and dismissed. This is the subject of the appeal before me after going through the Local Joint Committee and the Negotiating Committee as aforestated.

The grounds of appeal are inelegantly drafted but the following issues emerge for my determination.

Whether or not the second hearing and the dismissal were fair.

Whether or not the appointment of an external designated officer was a procedural irregularity with the effect of rendering the proceedings null and void.

The propriety of the dismissal penalty.

I deal with the above issues below, starting with the second issue.

Appointment of an external designated officer

The respondent proceeded in terms of section 3.3 of the relevant Code to appoint a designated officer to determine the second hearing. They appointed an external designated officer and the explanation tendered is that due to the small size of the respondent company it was not possible to get anyone who was not already seized with the matter. It was therefore in the interests of impartiality and fairness that the respondent appointed an external designated officer in order to eliminate the possibilities of institutional bias as explained in the case of Musariri v Anglo-American Corporation SC 53/05. The case of ZFC V Geza SC 14/97 was referred to for the importance of flexibility in the conduct of the disciplinary tribunal. This was supported by the matter of Duly Holdings v Chanaiwa SC 68/05.

Appellant’s argument is that the NECCS Code specifically provides that the appellant should have been charged by a designated officer and such designated officer should not be imposed. Section 3.3 provides;

“The employer, after consultation with the Works Council, shall appoint in writing one or more persons in his employment to be the “designated officer” for the purpose of administering this Code.”

Appellant argues that having someone who was not familiar with the matter prejudiced her. On the other hand respondent argues that appellant should have attended the hearing and objected to the external hearing officer.

I find that though the non consultation of the Works Council is alleged in the selection of an external hearing officer it is not a procedural irregularity which has the effect of vitiating the proceedings. No prejudice has been demonstrated. Further I find too that the procedure adopted by respondent was meant to serve appellant’s interests of appearing before an unbiased hearing officer. I think that the unchallenged assertion that due to respondent’s small size, this approach was the best in the circumstances cannot be impugned. I am satisfied that appellant was therefore not prejudiced in this respect. Her failure to attend the hearing and raise objections works against her.

Consequently I find no merit in ground 2 of the appeal.

Whether or not the second hearing was fair in the circumstances

Appellant is alleging that the second hearing was unfair. It is argued that the rehearing was instituted to simply justify appellant’s dismissal after failing to dismiss her on the initial charge as the decision was set aside on appeal. The second hearing is classified as a form of victimization and not fair as it was a retrial. The Code of Conduct is said not to provide for a retrial.

Further appellant argues that the second disciplinary proceedings are based on similar facts to those already investigated, heard and determined. The recharging is said to be incompetent as it amounts to trial and error by respondent.

Respondent avers that the second hearing was fair as the committee found appellant guilty after balancing the probabilities in the matter and noting the serious nature of the offence, ordered dismissal.

Further the respondent argues that there was no retrial. All that happened was that the respondent duly noted an error when it conducted the first disciplinary hearing and sought to rectify the procedural irregularities by reinstating the appellant without loss of salary and benefits. This is said to be in line with the law as stated in Standard Chartered Bank Zimbabwe v Matsika 1996 (1) ZLR 123 (5).

My considered opinion is that the Standard Chartered Bank v Matsika supra matter is distinguishable. It related to an issue where an employer noted and rectified the procedural irregularities before the finalization of the disciplinary matter, at suspension stage where the only prejudice was the loss of salary and benefits which was cured by an order or reinstatement without loss of salary and benefits.

In casu a determination was already made and an appeal noted. The appeal was granted as shown in the letter quoted above. One of the reasons for the success of the appeal was that on the merits there wasn’t enough evidence to secure a conviction. This was not a procedural irregularity.

Further authority for my position is set out in Gwaze v NRZ 2002 (1) ZLR 679 (5) and in Madondo v Fyfe & ORS 1988 (1) ZLR 138 (HC). The first and second hearings concerned the same subject, were founded on the same grounds/facts and were between the same parties.

Consequently it was incompetent for respondent to prefer fresh charges against appellant. Appellant was therefore unfairly found guilty and dismissed.

Grounds of appeal 1 and 3 therefore succeed. There is no need for me to proceed to consider ground of appeal 4.

Accordingly,

The appeal succeeds with costs.

The decision of the Negotiating Committee of the National Employment Council for the Commercial Sectors is set aside in its entirety and substituted as follows;

“Appellant (Respondent in casu) be and is hereby ordered to reinstate respondent (appellant in casu) without loss of salary and benefits from the date of unlawful dismissal.

In the event that reinstatement is no longer tenable respondent is to be paid damages in lieu of reinstatement, the quantum of which is to be agreed between the parties.

If the parties are unable to agree on the quantum of damages, either party can approach this court for quantification of same.”

MUGIYA & MACHARAGA, Appellant’s legal practitioners

DONSA-NKOMO & MUTANGI, Respondent’s Legal Practitioners