Linda Chivero and Gladys Gunika vs The Disciplinary Authority Chitungwiza and Chitungwiza Central Hospital and Health Service Commission

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO LC/H/292/25
ZIMBABWE HARARE 15th NOVEMBER,
CASE NO LC/H/108/24
2024
---------


IN THE LABOUR COURT OF ZIMBABWE HARARE 15th NOVEMBER, 2024

JUDGMENT NO LC/H/292/25 CASE NO LC/H/108/24

AND

15TH AUGUST, 2025

LINDA CHIVERO	1st APPLICANT

GLADYS GUNIKA	2nd APPLICANT

VERSUS

THE DISCIPLINARY AUTHORITY CHITUNGWIZA	1st RESPONDENT CHITUNGWIZA CENTAL HOSPITAL

AND

CHITUNGWIZA CENTRAL HOSPITAL	2nd RESPONDENT AND

HEALTH SERVICE COMMISSION	3rd RESPONDENT

Before the Honourable Chivizhe, Judge:

For Applicant	Mr T. Shadreck (Legal Practitioner)

For Respondent	Mr Chitekuteku (Civil Division of A-G’s Office)

CHIVIZHE, J:

The matter was placed before me as an application for review. The Applicants are both former employees. The 1st Respondent is the Disciplinary Authority appointed to hear the allegation of misconduct. The 2nd Respondent is a body corporate capable of suing and being sued. The 3rd Respondent is the former employer of the 1st and 2nd Applicants. After hearing of the matter the court issued an order on 20th November 2024 suspending the issuing of a judgement in this matter pending the determination of an appeal placed before the Supreme

Court relating to the same parties. The Supreme Court having rendered its decision on the 6th March, 2025 under reference SC 643/24 the following is the court’s judgement on the application for review..

The application for review has been filed against the proceedings convened before the 1st Respondent which culminated in a determination rendered on the 11th January 2024. The 1st and 2nd Applicants in this case were employed by the 3rd Respondent in the capacity of Tutor Nurse and Allocation Officer respectively. They were charged on 3rd and 4th April 2023 with breach of First Schedule Section 2.22 of Statutory Instrument 117 of 2006 that is any act or omission which is inconsistent with or prejudicial to the discharge of officer duties including abuse of authority. They were both arraigned before a Disciplinary Committee in terms of the Health Service Regulations, Statutory Instrument 117 of 2006 on 30th May 2023. After a full hearing the disciplinary committee found both of them not guilty on the basis that there was insufficient evidence to prove the charges as levelled. Following this the Applicants were then surprised on 12 July 2023 to receive letters from 1st Respondent extending their suspension and inviting them to a further hearing on the same charge of conduct inconsistent with the implied and express conditions of their contracts of employment. The copies of the letters addressed to each Applicant form part of the record. The 1st and 2nd Applicant thereafter approached this court on an urgent basis under case number LC/H/570/23 challenging the decision by the 2nd Respond to subject them to a further hearing. This court on 28 July 2023 issued an order dismissing the urgent chamber application for want of urgency.

The 1st Respondent thereafter on 31st October 2023 wrote a letter inviting both 1st and 2nd Applicant to a further hearing scheduled on the 1st of November 2023. On the date of hearing new oral evidence was led by 2nd Respondent from two witnesses, one Mr Mushamiri, the lead auditor and Mutizwa Zvikomborero, a student nurse against 1st Applicant. In respect of 2nd Applicant the hearing was held on 1st November 2023 new oral evidence was led from Munandi Washington, Maushe and Chikondo Tendai. The Disciplinary Committee found both 1st and 2nd Applicants guilty on the charges. A penalty of discharge from service was meted against each of the Applicants.

The 1st and 2nd Applicants, being aggrieved noted the present application for review.

The application has been noted on the basis of the following grounds;

GROUNDS OF REVIEW

The decision of the Discplinary Authority to reply to the recommendations of the Discplinary Committee dated 3 Janauary 2024 in arriving at its determination dated 11 January 2024 was grossly irregular as it was improper for the said Discplinary Committee to assume jurisdiction again over the same matter which it already heard , made findings and recommendations and gave a verdict on 22 June 2023 and was therefore functus officio.

The decision of the Discplinary Authority to rely on the recommendations of the Discplinary Commmittee dated 3 january 2024 based on the new evidence which should not to have been led before and accepted by the said Discplinary Committee in terms of the Health Service Regulations 2006, SI.117 of 2006 in arriving at its determination dated 11 January 2024 was grossly irregular.

The decision of the Discplinary Authority arriving at a penalty of dismissal without affording applicants the right to be heard in mitigation was grossly irregular

In coming to the conclusion that applicants were guilty of the offence they were charged with, the Discplinary Authority exhibited signs of bias and interest in the cause as it made findings which were not proven during the hearing to justify its decision.

On the date of hearing, counsel for the 1st and 2nd Applicants indicated that he was abandoning grounds or review numbers (1) and (2). He was however persisting with grounds of review numbers (3) and (4). I shall proceed to determine the application on the basis of those two remaining grounds.

WHETHER THE APPLICANTS RIGHTS TO BE HEARD WERE VIOLATED AS TO RESULT IN GROSSLY IRREGULAR PROCEEDINGS

The 1st and 2nd Applicant both contend that they were denied the right to mitigate. Counsel submitted that the record of proceedings clearly showed that there was no evidence of mitigation after their conviction on the charges levelled. The record showed in the case of 1st Respondent, through the Notice of opposition (page 63) in the case of 2nd Respondent Notice of opposition (Page 85) that they were contending that both Applicants were indeed invited to make submissions on mitigation and they did. The 1st and 2nd Applicant’s contention however is that they had been invited to make submissions after the disciplinary hearing but before the verdict/determination had been handed down. It was their submission that they should not have

made submissions as at that stage. The Applicants’ position therefore is that the determinations that ware handed down in the absence of mitigation were improperly arrived at. The proceedings were therefore grossly irregular. The 1st and 2nd Applicant’s counsel also made reference to Section 12B(4) of the Labour Act [Chapter 28:01] as providing for the right of an employee to be afforded an opportunity to mitigate after conviction but before penalty is imposed. As that was not done in this case the proceedings were therefore grossly irregular. The 1st and 2nd Applicants prayer was for the penalty of dismissal imposed by the Respondent to be set aside, the matter to be remitted back to the Disciplinary Committee for that body to sit and consider submissions in mitigation before reimposing penalty. In the amended draft filed after the proceedings on the 15th October, 2024 the 1st and 2nd Applicant are further praying to be paid their salaries and benefits from 11th January 2024 up to the date of this court order.

The 2nd Respondent, through their Notice of Opposition submit that this ground lacks merit. The 2nd Respondent contends that the record adequately shows that both Applicants were given a chance to mitigate but they did not utilise the opportunity.

In oral submissions it was contended by Mr Chitekuteku that although the Public Service Regulations Statutory Instrument No 1/2000 are silent in regards the aspect of mitigation section 45(2) of the same Regulations however is pertinent. The section provides as follows;

The hearing shall be conducted without the need to observe the rules of procedure and evidence ordinarily applicable in criminal or civil proceedings, provided, however, that the member concerned is afforded the opportunity to respond to every allegation of misconduct and that substantial justice is done.

Mr Chitekuteku submitted that it was on this basis it was the Respondent’s position that the mitigation can be received at any stage of the proceedings. In this case mitigation was received after the hearing but before the determination. The Complainant was also granted an opportunity to make submissions in aggravation. Mr Chitekuteku also emphasised that the Applicants had not pointed to any prejudice suffered as a result of the adoption of this approach. Section 12 B(4) of the Labour Act [Chapter 28:01] that the Applicants were placing reliance on, whilst providing for the need to ensure mitigation/aggravation is received at a disciplinary hearing, does not, itself prescribe the manner in which such evidence ought to be received. On this basis his prayer was for the court to dismiss the point as raised by the Applicants.

A perusal of the record of proceedings at page 55 shows that submissions in mitigation/ aggravation were indeed received by the Disciplinary Committee. The record reflects in respect of 1st Applicant as follows “Respondent did not make submissions in mitigation but instead, through her legal representative, only prayed that she be found not guilty and reinstated to her previous position without any loss of salary and benefits.” It would appear therefore that in respect of the 1st Applicant she indeed was asked to make representations and there were made prior to the determination verdict.

It is also the position that the Public Service Regulations, Statutory Insterument 1/2000 are indeed silent as to the issue of receiving evidence on mitigation/aggravation. They do not explicitly outline a process for mitigation, when mitigation can be called for. In the court’s considered view the Disciplinary Committee is however under an obligation to be addressed by an employee as an extension of the right to be heard. In Muchechetere vs ZBC (Pvt ) Ltd and 2 others (SC 143 -2021) the Supreme Court underscored the importance of addressing the hearing tribunal in mitigation. It would appear that in this case an opportunity was presented which was not taken by the Applicants. The Applicant have also pointed that mitigation should have been received after conviction. Whilst this is indeed the correct approach the Applicants have not shown any real prejudice suffered as a result of this irregularity. It is after all a position of the law that in order for procedural irregularities to vitiate disciplinary proceedings a litigant has to establish prejudice suffered. In this case both Applicants were found guilty on the charge/s by the Disciplinary Committee, their conviction/dismissal was confirmed by the Supreme Court under SC 643/24 it would serve no purpose even if they were indeed prejudiced by the procedure adopted for this court to direct a remittal in order for the disciplinary committee to receive mitigation first before imposing a fresh penalty. This ground must clearly fail.

ALLEGED BIAS OF THE DISCIPLINARY COMMITTEE AGAINST THE 1ST APPLICANT

Ground No. 4 as submitted relates only to the 1st Applicant. The 1st Applicant alleges that there were five findings made by the Disciplinary Committee against her. Each finding however ought to have been justified by the evidence led. Counsel for 1st Applicant submitted that the evidence led however showed that two witnesses led evidence, that is, Mr Mushamiri and the student nurse, S.W. Mutizwa. It was common cause Mr Mushamiri, in his testimony did not

implicate 1st Applicant. Similarly, S.W. Mutizwa had not implicated 1st Applicant in the alleged acts of misconducts. She only testified to the effect that 1st Applicant had forced them to pay for a leavers party which party was said to be compulsory. This evidence was clear on page 60 of the record of proceedings.

Counsel for 1st Applicant submitted that the Disciplinary Committee had proceeded to find her guilty. They however clearly had no basis for arriving at such a conclusion. In light of this 1st Applicant was justified in concluding that there was bias exhibited against her by the 1st Respondent. The decision arrived at by the same authority having been motivated by bias/interest in the cause therefore should not be allowed to stand. The determination ought therefore to be set aside on review. The Respondents position on the issue of bias is that the allegation is not supported by the record. There was absolutely no bias or malice exhibited agaisty the 1st Applicant. Mr Chitekuteku, in oral submissions, noted that an admission had been made by Mr Shadreck that indeed there was evidence led in the disciplinary hearing and that his view was that it did not entirely implicate 1st Applicant. Mr Shadreck submitted that this was a contradiction in terms, how could there be bias in the circumstances where evidence had actuallybeen led which through Counsel own admission did to some extent implicate his client. Mr Chitekuteku’s prayer was that the court dismiss grounds as meritless.

It is indeed the position of the law that the issue of bias is properly taken before and during the disciplinary proceeding. Where the issue of bias is raised after the disciplinary proceeding as in this case, there is need for the Applicant to demonstrate the bias adequately in order for the disciplinary proceedings to be set aside. This position was laid in Mupandasekwa vs Green Motor Services (Pvt) Ltd SC 30-15 where the Supreme Court stated as follows

“…….The likelihood bias can only, logically, be raised before or perhaps during the proceedings in question. In such cases, an affected party would normally be expected to request that the person suspected of such bias recuse him or herself from participation in the proceedings in question. There is no record that, in casu, such a request was made by the Appellant in respect of the Chairperson of the disciplinary proceedings. Consequently proceedings continued to finality. The Appellant could only , after that, have relied on demonstrated bias to request that the proceedings be set aside. The court a quo found that he had failed to do so.”

The onus in this case clearly rests upon 1st Applicant as the person alleging bias to prove/establish the allegations of bias. It is apparent from a perusal of the record that the Applicant did not at the end of the proceedings raise any concerns of bias on the part of the

Disciplinary Authority. She only raised the issue post-facto the hearing. It is also apparent from a reading of the minutes that the evidence of Mr Mushamiri was that given the position of the 1st Applicant the students were generally reluctant to come forward with the information surrounding the 1st Applicant and the other officials corrupt and abuse of office. The evidence of the witness Mutizwa however was clear that the 1st applicant had indeed threatened the students in class to student nurses to pay for a leavers party. The party was compulsory to all the students. Even if they may not have been any other direct evidence led this was sufficient for the Disciplinary Committee to find her guilty on the charge levelled. The claim of bias clearly cannot be sustained on the basis of the evidence in the record. The findings made were based on the evidence led. The ground must also be dismissed for lack of merit.

In the result the application for review be and is hereby dismissed.