MacDonald Chimhoka v ZESA Holdings (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/500/2016
HARARE, 28 JUNE 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/500/2016

HARARE, 28 JUNE 2016			          	       CASE NO. LC/H/REV/20/16

AND 9 SEPTEMBER 2016

In the matter between:-

MACDONALD CHIMHOKA				Applicant

And

ZESA HOLDINGS (PVT) LTD				Respondent

Before The Honourable F.C. Maxwell, Judge

For Applicant		Mr B. Ndhlovu (Legal Practitioner)

For Respondent		Ms P. Chin’ombe (Legal Practitioner)

MAXWELL, J

This is an application for review of the disciplinary proceedings against applicant.  Applicant was employed as a line worker.  He was charged with an act of misconduct for taking and converting or attempting to take and convert to his own private use property that belonged to the company.  Applicant was accused of taking a prepayment meter from the Senior Customer Services Officer’s Office without his knowledge and installing it at stand 1021, 3rd Avenue, Park Town, Harare.  Applicant appeared before a disciplinary committee was found guilty and was dismissed from employment.

On 25 February 2016 applicant filed this application for review on the following grounds;

The determination to dismiss applicant was not fair in the interest of natural justice in that it was arrived at when the key people who could have exonerated applicant were never summoned to testify at the disciplinary proceedings.  The supervisor and the depot clerk who had authorized all the work done by applicant were not invited.  Instead the respondent invited a witness who was on leave during the period in question.  The depot clerk “Ms Serbia Kaudzo” who was seized with the dispensing of duties for new connections was not called to clarify the alleged installation which installation according to applicant was lawful.  The applicant was dismissed despite evidence from Mr Chirawu (a respondent’s witness) that applicant acted upon a lawful instruction from the depot clerk.

The appeal proceedings of 3 June 2014 were also grossly irregular in that they were conducted outside the time limit prescribed in the energy Sector industry code of conduct.  The appeal panel did not deal with issues that were before it instead emphasized on the irregularity of the connection whereas applicant had raised procedural issues in the conduct of the disciplinary proceedings.

Applicant prayed for the setting aside of the decision of the disciplinary and appeals committee.  In heads of argument applicant prayed for reinstatement with no loss of salary and benefits.

In response respondent stated that applicant, who was represented at the hearing was not denied an opportunity to call witnesses.  As to the second ground for review, respondent stated that it was not substantiated and should therefore be dismissed.

The record of proceedings shows that the first ground for review has no merit.  Applicant complains that witnesses who would have exonerated him were not called.  He seems to imply that it was the responsibility of the respondent to call those witnesses.  He does not indicate that he requested for those witnesses but was not assisted in having them availed for the hearing.  His complaint is without basis. The record of proceedings shows that he indicated he was of the view that the witnesses would be notified by management to come.  On being asked if he had communicated that to the secretary, he indicated that he was not aware of the procedure.  He does not however proceed to indicate that he required those witnesses to testify. I therefore find no merit in the first ground for review.

As stated by respondent, the second ground of review was not substantiated.  Applicant states that the proceedings were conducted outside the time limit prescribed in the relevant Code.  The record of proceedings does not show that applicant raised this issue before the disciplinary committee or the Appeals Committee.  It is therefore improper for him to raise it on appeal.  In any event applicant has not demonstrated that were it not for the irregularity, the outcome would have been different.  See Duly Holdings v Chanaiwa 2007 (2) ZLR 1.  Applicant also complains that the appeal panel did not deal with issues that were before it.  Applicant’s heads of argument are silent on this issue.  I will therefore consider it abandoned.

Counsel for applicant in oral submissions prayed for the setting aside of the proceedings and reinstatement of applicant to his job.  Even if the application had merit, the relief sought is incompetent.  Reinstatement is the kind of relief one seeks on appeal, not on review.  The relief available on review is the setting aside or correction of the proceedings or decision.  See ZFC Ltd v Geza 1998 (1) ZLR 137.

I find no merit in the application for review and it therefore fails.  Consequently the following order is appropriate;

The application for review be and is hereby dismissed for lack of merit.

Bothwell Ndhlovu Attorneys at Law, applicant’s legal practitioners

Messrs Baera & Company, respondent’s legal practitioners