MacLeod Tarambiwa v University of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/55/2021
HARARE, 23 MARCH 2021
CASE NO. LC/H/REV/57/20
JUDGMENT NO. LC/H/55/2020
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/55/2021

HARARE, 23 MARCH 2021			      CASE NO. LC/H/REV/57/20

AND 21 MAY 2021

In the matter between:-

MACLEOD TARAMBIWA					Applicant

And

UNIVERSITY OF ZIMBABWE				Respondent

Before Honourable B.S. Chidziva, Judge

For Applicant		Mr M.D. Ncube (Legal Practitioner)

For Respondent		Mr G. Mhlanga (Legal Practitioner)

CHIDZIVA, J:

This an application for review of the disciplinary proceedings before the Respondent in which the applicant was found guilty of misconduct and he was dismissed from employment.

The brief facts of the matter are that:

The applicant was employed by the Respondent as an assistant security officer on 21 May1990. He was later promoted to the position of Chief Security Officer on the 1st day of July 1998.

On the 2nd of July 2020 Applicant was called for a meeting with the Vice Chancellor, Pro Vice Chancellor Strategic Partnerships and Industrialization and the Registrar where he was informed that he was no longer fit for the purpose for which he was employed. A proposal for a compensation package was made which the applicant turned down.

On the 9th of July 2021 the applicant was suspended from duty. He was charged for contravening Section 16 Schedule D subsection 16.2 as read with subsection 16.24 of the University of Zimbabwe Code of Conduct which states as follows;

“Any act of conduct on omission inconsistent with the fulfilment of the express or implied conditions of his or her contract” and

“Gross incompetence on inefficiency in the performance of duty.”

It was alleged that there had been a number of thefts of University and students assets and there had not been evidence of thorough investigation.

The applicant has applied for review of the proceeding on the following grounds;

The Respondent erred by finding that they had jurisdiction as the matter had been referred to a Labour Officer in terms of the Labour Act.

The proceedings before the Respondent were irregular in that Applicant was suspended before investigations were done.

The proceedings before the Respondent were grossly irregular in that Applicant was denied access to his office to obtain documentary evidence of his choice to make a proper defence.

The decision to unlawfully dismiss the Applicant was made before any hearing or charges were laid against the Applicant.

Applicant’s right to a fair hearing was further impeded as his legal practitioner rushed during submissions and stopped from addressing issues.

The Deputy Registrar Labour Resources descended into the arena in contravention of her duties as a minute taker.

The Staff Disciplinary Committee did not dismiss the Applicant as is provided by the Code of Conduct instead they recommended dismissal which was later approved by the Vice Chancellor.

The Staff Disciplinary Committee, Complainant and their legal practitioner convened a meeting immediately prior to the hearing and expressly stopped the Applicant and his legal practitioner from participating in the meeting.

The Appeals Committee was not properly constituted when they denied the Applicant a postponement due to his change of a Legal Practitioner.

The Appeals Committee was not properly constituted when they made a determination on the appeal.

In response the Respondent stated that

The Respondent had the jurisdiction to deal with the matter in terms of the Code of Conduct.

Suspension in labour matters is always done to facilitate investigations. The Respondent’s code provide for the power and authority to the Vice Chancellor to suspend an employee pending a disciplinary hearing under clause 4.3.2 and 4.4.2.

Access to the officer not a right as the employer sets out conditions for suspension.

The meeting which applicant attended with the Vice Chancellor was lawful and meant to seek an amicable manner to addressing the applicant’s shortcomings.

Applicant’s Legal Practitioner was vexatious, unnecessarily argumentative and wanted things done his way. When the disciplinary committee overruled him in certain instances he cried wolf.

The SDC found applicant guilty and after hearing mitigation found the penalty of dismissal to be appropriate. It eventually forwarded its findings to the Vice Chancellor the Chief disciplinary officer in terms of the Code.

The presence of the University legal practitioner to advise and prosecute matters on behalf of the University is not out lawed by the University Code of Conduct.

Applicant has not adduced any evidence of improper constitution of the SDC.

It is common cause that a disciplinary hearing against the applicant was conducted following a spate of thefts of University property and property belonging to the students.

What is to be decided is whether the proceedings before the SDC and Appeals Committee were irregular.

The Applicant has not disputed that in disciplinary proceedings the Vice Chancellor is the chief disciplinary officer. He has not disputed that Section 8 (2) (g) (c) of the University Act provides that decisions by the SDC should be forwarded to the Vice Chancellor for the final decision.

The Applicant has also challenged Mr Ndoma’s involvement in the Appeals Committee. When he raised issues about Mr Ndoma it was not communicated to him that a new member had been appointed. In the absence of clear communication that Mr Ndoma had been recused and that despite his absence the Appeals Committee remained properly constituted it is this court’s view that the issue of bias cannot be ruled out.

The applicant states that when he asked for a postponement because his Legal Practitioner had become conflicted he was unreasonably granted a postponement of about 24 hours. When this determination was made Mr Ndoma was present. In the circumstances therefore it is this court’s view that bias cannot be ruled out. It was also only after the short postponement that he was informed that Mr Ndoma would not play any further part in the committee.

In view of this the court finds that the proceedings before the Appeals Committee are irregular.

Staff Disciplinary Committee

The applicant has submitted that the SDC erred by denying him access to his office where he wanted to get some documents. It is the Respondent’s argument that there is no laid down procedure granting the right he is asserting or the procedure for the implementation of the alleged right. It is a constitutional right for one to undergo a fair hearing. It is also the right for one to defend himself/herself. If there were any documents that would assist him in preparing his defence. the Respondent should have given conditions under which he could access the documents that could assist him in preparing his defence.

The applicant has also stated in his application that the Deputy Registrar Human Resources who was the minute taker descended into the arena. In the absence of any audio recordings on any contrary evidence it would not be possible to rule out this allegation. One would wonder if the officer was doing accurate minute taking. It was alleged that she was assissting complainant in answering questions. She would also whisper answers to the complainant.

It was also alleged that before the hearing the SDC, complainant and their legal practitioners convened a meeting in which applicant and his legal practitioners were barred. Respondent’s representation by the legal practitioners is not irregular. However what raises eyebrows is this meeting with the committee which was to preside over the matter.

Whilst the applicant states that his legal practitioner was not being given the chance to present his case the Respondent is stating that the legal practitioner was vexations hence he was being controlled. In the absence of clear audio/video recordings by a person who was not biased its difficult to rule out the issue of bias in the matter.

The applicant also stated that the chairperson was bullish and the committee also denied his lawyers to make written closing submissions.

The Respondent in this matter had the jurisdiction to deal with the matter. It also had the right to suspend the Applicant pending investigations.

However due to the irregularities stated above it is this court’s view that the decision of the SDC and appeals committee should be set aside.

It is therefore ordered that,

The application for review be and is hereby granted.

The decision issued by the Respondent to dismiss the Applicant be and is hereby set aside.

The Respondent is to set up a new Disciplinary Committee for fresh disciplinary proceedings to be conducted within 60 days of this order.

The Applicant remains suspended.

Respondent shall pay costs.

Devittie, Rudolph & Timba, applicant’s legal practitioners

Chihambakwe Mutizwa & Partners, respondent’s legal practitioners