Mugove Chatizembwa v Lafarge Cement Zimbabwe Limited

### Preamble
IN THE LABOUR COURT
JUDGMENT NO. LC/H/485/2013
HARARE, 1 OCTOBER 2013
CASE NO. LC/H/378/13
---------




IN THE LABOUR COURT 			           JUDGMENT NO. LC/H/485/2013

HARARE, 1 OCTOBER 2013	                          CASE NO. LC/H/378/13

In the matter between

MUGOVE CHATIZEMBWA					         Appellant

And

LAFARGE CEMENT ZIMBABWE LIMITED				Respondent

Before The Honourable P. Muzofa; Judge

For Appellant 	-	Mr P.F. Mutuso  (Legal Practitioner)

For Respondent	-	Mr T. Hussein (Legal Practitioner)

MUZOFA P.;

This is an appeal against Respondent’s decision to dismiss the appellant.

The Appellant was employed as a shift superintendent.  On the fateful day the 21st of April 2013 Appellant left his workstation without authority and used a company mother vehicle without authority.  He was subsequently charged for contravening part vi Section (d) and 5 (c) of the  Code of Conduct.

(d)  “willful damage, misuse or loss of  company property” and

5(c) leaving work situation without permission”

He appeared before a Disciplinary Officer which convicted him and a penalty of dismissal meted out.  The appellant appealed to the Respondent’s Appeals Committee which upheld the Disciplinary Officer’s decision.  As a result appellant approached this court on appeal.  Eight grounds of appeal were noted that can be summarized as follows;

That the hearing officer was impartial as he was a fellow manager.

That the admission of guilt was used to dismiss the appellant.

That there was no consideration made of mitigatory factors.

I will deal with the grounds of appeal in turn.

That hearing officer was impartial since he was a fellow manager.

At the on set I must say this is a ground for review and not a ground of appeal since it challenges the procedural aspects of the hearing.  That as it may be it is now before the court I shall address it.  It was submitted by the appellant’s representative that the hearing officer was appellant’s immediate boss.  From the record of proceedings it is apparent that there was a Chairperson, an employee representative, the employee and the minute taker.  In essence the Chairperson was the complainant.  There was therefore a procedural irregularity and danger of bias.  For the respondent it was argued that the Respondent’s Code did not specify who should deal with matters where a managerial employee was charged.  In essence an inference should be drawn that fellow managers should hear the matter instead of subordinates giving effect to the audi alteram partem rule.

I believe the construction of the hearing authority was questionable.  The record of proceedings show that the Chairperson one C. Katanda read the charges, questioned the appellant and eventually made a finding of guilty and dismissed the appellant.  In essence the chairperson was the prosecutor and the judge.  The issue of bias was aptly captured in the case of R v Gough 1993 2 All ER 724 @ 737 where the court set out the test for bias as follows;

“Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the Tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour or disfavor, the case of a party to the issue under consideration by him”.

In this case C. Katanda was the appellant’s immediate boss, he was the one who did the investigations, he formulated the charges against the appellant, he invited the appellant to a hearing, he chaired the hearing, he cross examined the appellant and finally made a finding that he was guilty and dismissed appellant.  I find this going against the proper administration of social justice in the workplace.  Clearly bias cannot be ruled out where the complainant is also the judge.  This procedural irregularity was fatal to the whole proceedings.  On that basis alone the appeal succeeds.

I must say since Respondent’s decision is being set aside on a technicality it does not necessarily mean that the appellant is not liable.  It is established law that Labour matters should not be decided on the basis of procedural irregularities.  In the event that such procedural irregularities exist and are prejudicial to the other party, the procedural irregularities should be right. see Dalny Mine v Musa Banda SC 39/99.  I believe the justice of this case would be served by affording the appellant another hearing before a different hearing authority and properly constituted.

In light of the above finding there is no need to consider the other ground of appeal.

It is accordingly ordered as follows;

The appeal is upheld the Respondent’s decision is hereby set aside.

The matter is hereby remitted for a hearing de novo before a different disciplinary authority.

There shall be no order as to costs.