Lloyd Makonza v Zimbabwe On Line

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/11/2014
HARARE, 17 OCTOBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/11/2014

HARARE, 17 OCTOBER 2013	           	    CASE NO. LC/REV/H/145A/12

AND 14 FEBRUARY 2014

In the matter between:-

LLOYD MAKONZA 					    Applicant

And

ZIMBABWE ON LINE				   	   Respondent

Before Honourable Chidziva J

For Applicant		In person

For Respondent		Mr T. Nyamakura (Legal Practitioner)

CHIDZIVA J.;

This is an application for review of the disciplinary proceedings which eventually led to the Applicant’s dismissal from employment.

The brief background of this matter is that Applicant was employed by Respondent as an infrastructure installer.  He was charged for contravening from sections 4(a),(b),(d),(e) and (g) of SI 15/2006.  It was alleged that he stole an internet modem and sold it under dishonest circumstances.  He was also charged for improper handling of the respondent’s funds.

The Applicant has applead for the reviews of the disciplinary proceedings stating that Respondent has violated Section 6 (1) of SI 15/2006 by suspending him a year later when this was supposed to be done forthwith.

The Applicant’s grounds for review are that:-

“(1) The Respondent is trying to evade the core of this application which is the right not to be unfairly dismissal.  The Respondent is thus calling upon this Honourable Court to uphold its unprocedural act of suspending Applicant a year later when the law required “forthwith” action.

(2) Failure to comply with the law is just as good as having not done anything at law.  The purported action is a nullity, hence the Applicant’s prayer for reinstatement.

(3) The Respondent had all the time on earth to comply with the labour law. It could have done so before the criminal procedures it instituted against the Applicant.

(4) Applicant stands by his Heads of Argument and is not willing to follow Respondent on its fishing expedition.  The law has in the past defined what forthwith is, and Applicant is not aware if that definition has changed from what has already been argued.”

The Applicant on this ground is applying for reinstatement.”

In response the Respondent:

Applicant’s single ground of review is ludicrous and should be dismissed.  The Applicant is simply seeking reinstatement without addressing the merits of the case.

The case of AFFRETAIR (PVT) LTD vs MC AIRLINES (PVT) LTD 1996 (2) ZLR 15 stated that in review labour;

“The role of the court in reviewing administrative decisions is to act as an umpire to ensure fairness and transparency, the latter being a word which could usefully be used to connote openness, frankness honesty and the absence of bias, collusion, favouritism, bribery, corruption or underhand dealings and consideration of any sort.  The duty of the court is not to dismiss the administrative authority and take over its functions, but to ensure, as far as humanly and legally possible, that it carries out its functions fairly and transparently.  Provided that the court was satisfied that the authority had done that, it could not interfere merely because it did not approve of the authority’s decision; though if the decision was hopelessly wrong, the court might say that the decision could only have been arrived at by reference to improper considerations or by failure to refer to proper ones.”

The Applicant has not proved any unfairness on Respondent’s part.  He could not attend disciplinary hearing due to the stringent bail conditions that he had been given at court.  He only came to court after his acquittal that is a year after his arrest.  He was only charged and called for a hearing when he appeared at court seeking a reinstatement.  This therefore meaning that the word “forthwith” the Applicant is trying to use in this case does not apply in this case.

Applicant has also not told the court the prejudice he suffered due to the delay in holding disciplinary proceedings.  In the case of NYAHUMA v BARCLAYS BANK ZIMBABWE (PVT) LTD 2005 (2) ZLR it was held 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.”

The Supreme Court in the case of AIR ZIMBABWE (PVT) LTD v MENSA & ANOR SC 89/2004, also ruled that;

“A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee.  He should escape such consequences because he is innocent.”

Besides the alleged irregularity the Applicant has not proved to this court that he is innocent.

In view of the foregoing it is the court’s opinion that Applicant has not managed to prove its case against the respondent.

IT IS THEREFORE ORDERED THAT

The application be and is hereby dismissed.

Each party is to pay its costs.

Mtetwa & Nyambirai,  respondent’s legal practitioners