Nathan Chapeyama v Surface Investments (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/159/2014
HELD AT HARARE, 11 FEBRUARY 2014
CASE NO LC/REV/H/72/13
&31 MARCH 2014
JUDGMENT NO LC/H/159/2014
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/159/2014

HELD AT HARARE, 11 FEBRUARY 2014	CASE NO LC/REV/H/72/13

&31 MARCH 2014

Before Hon L Kudya J & Hon L M Murasi J

In the matter between

NATHAN CHAPEYAMA						APPELLANT

Versus

SURFACE INVESTMENTS (PRIVATE) LIMITED		RESPONDENT

Appellant in person

For Respondent			F Choga (Human Resources Officer)

MURASI J:

The appellant was employed as a Human Resources Officer by the respondent. The appellant is alleged to have reported for work on 6 April 2012 to check on the whereabouts of newly-recruited employees. He is then alleged to have committed acts of misconduct which culminated in his dismissal. The matter was referred to an arbitrator who confirmed such dismissal. The appellant has appealed to this Court.

The appellant’s grounds of appeal are as follows:

The arbitrator erred when she ruled that the Hearing Committee was properly constituted.

The arbitrator misdirected herself when she said that she did not see the consequence of the presence of the lawyer, when she concluded that he was just an observer.

That the appellant was not allowed to cross-examine the keys witnesses, that is, Muchineripi and Chitate.

The arbitrator misdirected herself when she said the appellant used the company vehicle to do personal errands.

The arbitrator erred in finding that the appellant was drunk at work because he had bought alcohol.

The arbitrator misdirected herself when she considered a memo written under undue influence which was not supposed to be used in the proceedings.

The arbitrator did not consider the evidence brought before her by the appellant which showed that the respondent had preconceived intention of dismissing the appellant.

The appellant appeared in person. In his submissions on the first ground of appeal, the appellant pointed out that the disciplinary committee was not properly constituted as there should be employer and employee representatives. He stated that the minutes show that there were management representatives. The employee representative who was in the meeting is one whom the appellant had invited and was therefore not part of the committee.

The respondent stated in response that the appellant should have brought this to the attention of the hearing committee and further alleged that the minutes showed that there was a workers’ representative. A look at the record shows that Mr Chitava is recorded as a workers’ representative in the Disciplinary Hearing of 20 and 23 April 2012. However, the same Mr Chitava is also recorded as a workers’ representative in the Appeals Hearing Committee of 12 May 2012. If this happened, it would indeed be an anomaly. This gives credence to the appellant’s assertions that Mr Chitava was only present on his invitation. Mr Chitava could not have participated in the two hearings. In the absence of a workers’ representative in the committee, the hearing committee would be improperly constituted.

The second ground of appeal was that the arbitrator misdirected herself in not giving significance to the presence of the lawyer. The appellant submitted that during the proceedings, the Chair would at times confer with the lawyer. The respondent stated that there were no submissions made by the company lawyer. However, the respondent was unable to controvert the fact that when the Chair was conferring with the lawyer during the course of the proceedings, the lawyer was indeed participating in those proceedings. This was indeed not permitted in terms of the Code of Conduct. Indeed that was cause for the appellant to be apprehensive of the proceedings.

In his third ground of appeal, the appellant alleged that he was not permitted to cross-examine the key witnesses. The record shows that the witnesses were called to testify and questions put to them by the Chair. The appellant specifically mentions in the Appeals Hearing that:

“I was not given the chance to cross-examine the key witnesses.”

A further reading of the record shows that the appellant was directly given the opportunity to cross-examine the witness, Munakanwe. The record clearly shows the following:

“The defendant started cross-examining the witness”.

This opportunity is not extended in respect of the key witnesses as requested by the appellant. The record is replete with questions being directed to witnesses by the Hearing Officer. Though the Hearing Officer was not supposed to adhere to strict procedural rules of a court of law, he was at least expected to have complied with the basic rules of natural justice. The following observations were made by KHUMALO J, in Sefularo v President of Bophutatswana&Anor 1994 (3) SA 80 at 82 G-H:

“The principle audialterampartem has been debated in numerous South African cases. It is not a rule of fixed content, as it may in extent vary from a right to be apprised of the information and reasons underlying an impending decision, the disclosure of documents or sources of information, to a partial or full inquiry, including the right to be represented and to cross-examine. The test is always one of fairness by hearing both sides. In the context of employment dismissals of public servants, the audiprinciple plays an important part except where it may be excluded by statute or regulation, contra a common law contract between master and servant.”

The right given to a party to cross examine is a right to put his side of the story through questioning thus constituting the right to be heard. It is clear that the Appeals Committee ignored this fact even after the appellant had raised it.

Some semblance of justice should have been shown. Similarly this allegation of denial to cross-examine by the appellant escaped the scrutiny of the arbitrator. After having analysed the first three grounds of appeal, the court is of the view that they were indeed irregular and it would be unnecessary to consider the rest of the other grounds. The court quotes the following passage by GWAUNZA JA in Dulys Holdings v Chanaiwa 2007 (2) ZLR 1 (S) at 6 E:

“This court has also stressed the point that once the tribunal decides that the proceedings were fatally irregular, and that it cannot come to a conclusion on the merits, it has no choice but to remit.”

The Court is of the view that the proceedings by the Disciplinary Committee were procedurally irregular and should be set aside.

In the result, the appeal succeeds and the decision of the Disciplinary Committee is set aside.

The court makes the following order:

The decision of the Disciplinary Committee be and is hereby set aside.

The matter is remitted for fresh proceedings to be held within thirty (30) days of this order.

There is no order as to costs.

MURASI J

KUDYA J, (I agree)