Leonard Rwambiwa v Zimbabwe Manpower Development

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/254/23
HELD AT HARARE 19TH JUNE 2023
CASE NO LC/H/142/23
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/254/23 HELD AT HARARE 19TH JUNE 2023	CASE NO LC/H/142/23

AND 31 AUGUST 2023

In the matter between

LEONARD RWAMBIWA	APPLICANT

And

ZIMBABWE MANPOWER DEVELOPMENT RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

For the Applicant	Mr A. Chambati (Legal Practitioner) For the Respondent Ms C. Makura (Legal Practitioner)

MAKAMURE J

Introduction

This is an application for Review.

The applicant is a former employee of the respondent. He was charged with acts of misconduct. This was in terms of provisions of the Labour (National Employment Code of Conduct) ,Statutory Instrument 15 of 2006 (S.I.15/06).Disciplinary proceedings were conducted . He was acquitted of those charges. The respondent was aggrieved by the outcome. It appealed internally. The appeal succeeded with the Appeals Authority overturning the acquittal, finding the applicant guilty and penalizing him with dismissal. He was aggrieved by that outcome and has filed an application for review on the following grounds :

‘1. That, the decision of the respondent’s appeals authority is grossly irregular as the appeals authority in his decision relied on the evidence and submissions that were before another court- criminal court and which were never placed before him or before the disciplinary committee to find applicant guilty of misconduct.

2. That, the respondent’s appeals officer grossly erred in giving the applicant a dismissal penalty without first giving the applicant a right to be heard in mitigation and without considering mitigation.’

An application for review to this Court is provided for under S92EE of the Labour Act Chapter 28:01( the Act) as follows:

‘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 with is 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 proceedings or the decision of the arbitrator or adjudicating authority concerned.

Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.’

Applicant’s submissions

Mr Chambati who appeared on behalf of the applicant argued that with respect to the first ground for review, the appeals authority relied on information which was not before them. He further argued that the appeals authority ought to have relied on the record which was before them , that is the record from the disciplinary authority. Mr Chambati argued that the appeals authority used a record from another court because they found that what was before them was not adequate. Under the circumstances Mr Chambati submitted that this was a gross irregularity on the part of the appeals authority. With respect to the second ground for review Mr Chambati argued that the appeals authority imposed the penalty of dismissal without having heard the applicant in mitigation. In view of this it was submitted that this was tantamount to summary dismissal and the penalty was unreasonable. Mr Chambati submitted that this ground had merit and the application for review should be granted.

Respondent’s submissions

Ms Makura who appeared on behalf of the respondent argued that by referring to the record of another court in convicting the applicant the appeals authority was responding to the applicant’s grounds of appeal. Ms Makura drew the attention of the Court to the grounds of appeal which were considered by the appeals authority. It was therefore submitted on behalf of the respondent that there was no merit in both grounds for review.

In response Mr Chambati brought it to the attention that the conviction of the applicant by the Magistrates Court had been upset on appeal. I must note that this issue was not on record . Had it been part of the record the other party would have had a chance to properly consider it. I must also mention that labour matters like civil matters are not games of ‘hide and seek’ where parties take opportunities to take each other by surprise. This means that all that a party relies on should be disclosed before the trial is commenced so that the parties and the Court have the same record or information.

Analysis

I will now refer to the law.

Review proceedings are governed by S92EE of the Act as shown above.

The provisions of Statutory Instrument 15 of 2006 which are relevant to the question of mitigation are set out in s6 (4)as follows:

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

(a) to (d) …..

(e) address in mitigation before the ultimate penalty is imposed.’

The applicant argued that the respondent’s appeals authority used evidence that the earlier tribunal did not use and the decision by the appeals authority was therefore irregular . From argument it appears not to be in dispute that the evidence that resulted in the applicant’s conviction and subsequent dismissal was the evidence contained in a record from criminal proceedings which were conducted in a criminal court. That record or evidence appears not to have been considered by the disciplinary committee. Further as the ground for review is worded, the record from the criminal court was never placed before the applicant for the applicant to respond. This means that the applicant was not fully heard. In the Heads of argument filed on behalf of the respondent, the respondent addressed the question of the ‘degree of irregularity’. My understanding of this is that the respondent admits that there was an irregularity on its part . The following are some of the authorities relied on by the respondent: Nyahuma v Barclays Bank of Zimbabwe SC 67/05; Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S); Barros & Anor v Chimponda 1999(1)ZLR 58; Samson v Windmill (Pvt) Ltd SC07/2015.

The applicant also argued that it was irregular for the respondent’s appeals authority to penalize the applicant without having heard him in mitigation. This particular issue appears to be fairly straight forward. The relevant statute S6(4)(e) of S.I. 15/2006 provides that an employee shall have the right to address in mitigation before a penalty is imposed. The provision is worded in peremptory terms. This means that a tribunal is obliged to hear an employee in mitigation before the question of the appropriate penalty is determined. Where this peremptory provision is not observed , the tribunal in question falls foul of the law. In the present case the applicant was not afforded a chance to address in mitigation before a penalty was imposed. That was inappropriate. It ought to be put right. Dalny Mine v Banda 1999 (1) ZLR 220. This means that there is merit in the second ground.

Now going back to the question of the alleged irregular decision, in Tichawana Nyahuma v Barclays Bank (Private) Limited SC67/05 the Supreme Court stated that:

‘Before dealing with the procedural irregularities alleged by Nyahuma , I wish to state that it is not all procedural irregularities which vitiate proceedings . In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.’

It is a trite position in this jurisdiction that the other party must be heard. In Attorney-

General v Leopold Mudisi & Others SC 48/15 the Supreme Court held that it is

‘…the right of every person to be heard or make representations before any decision is taken that might impinge upon his rights, interests or legitimate expectations.’

Equally in the case of Hwange Colliery Company Limited v 1)Tendai Makute 2)Deputy Sherriff, Hwange SC64/2016 it was held that every person must be afforded a chance to be heard. In the present matter the respondent’s appeals authority did not afford the applicant a chance to consider the record from the criminal court. In Smith Chataira v Zimbabwe Electricity Authority SC83/-01 the Supreme Court stated that :

‘The employer is required to act judiciously before imposing a penalty on an employee. However , the requirement of a fair hearing does not mean that employers must handle disciplinary proceedings according to the rigorous standards of a court of law. The rules of natural justice require no more than that a domestic tribunal acts according to the common sense precepts  of fairness. ‘

It is not in dispute that the applicant was not afforded an opportunity to consider the record of proceedings from the magistrates’ court. This means that he was not heard in full. His right to be heard was therefore violated. In the result there is merit in this ground for review.

Having found that there is merit in both grounds , the application for review has merit. It succeeds. It is accordingly ordered that:

The application for review be and is hereby granted.

The determination of the respondent’s appeals authority setting aside the decision of the respondent’s disciplinary authority and finding the applicant guilty of misconduct and dismissing him from employment be and is hereby set aside and the respondent be and is hereby reinstated without loss of salary and benefits with effect from the date of dismissal.

The respondent is free to hold disciplinary proceeding against the applicant in a procedurally correct manner.

The respondent pays  costs of suit.

CHAMBATI MATAKA & MAKONESE, ATTORNEYS AT LAW,APPLICANT’S LEGAL PRACTITIONERS.

CALEB MUCHECHE & PARTNERS, RESPONDENT’S LAGAL PRACTITIONERS .