NMB Bank Limited v Aurthur Munhuuripi and Elvis Mudzengerere N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/113/23
HELD AT HARE ON 21MARCH 2023
CASE NO. LC/H/752/22
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IN THE LABOUR COURT OF ZIMBABWE				JUDGMENT NO. LC/H/113/23

HELD AT HARE ON 21MARCH 2023				CASE NO. LC/H/752/22

AND

IN THE MATTER BETWEEN:-

NMB BANK LIMITED					APPELLANT

AND

AURTHER MUNHUURIPI				FIRST RESPONDENT

ELVIS MUDZENGERERE N.O.				SECOND RESPONDENT

Before Honourable Justice L.M. Murasi

For Appellant					Mr. A.K. Maguchu

For First Respondent				Mr. P. Mutsatsa

No Appearance for Second Respondent

MURASI J:

The First Respondent is employed by the Appellant. First Respondent was suspended from employment by the Appellant. The Appellant also reported the matter to the police resulting in the arrest of the First Respondent. The First Respondent’s bail conditions barred him from visiting his workplace. It is also common cause that First Respondent’s suspension was without salary and benefits. First Respondent referred his matter to Second Respondent and the latter determined that First Respondent’s suspension was illegal having regard to the provisions of the Code of Conduct. Appellant is dissatisfied with the decision and has approached this for relief.

Appellant’s grounds of appeal are as follows:

Despite the Appellant having unequivocally stated that its withholding of Respondent’s wages was not based on the letter of suspension, the Designated Agent erred at law in finding that the unlawfulness of the suspension on its own entitled the respondent to reinstatement on the payroll.

The Designated Agent erred at law in nullifying the Respondent’s suspension in its entirety for the sole reason that the letter of suspension included an unlawful withholding of salary and benefits.

The Designated Agent seriously misdirected himself on the facts in finding that Appellant was culpable for the delay in the disciplinary proceedings at all or on the basis that Appellant had exercised its right to report a potential crime to the police.

The Designated Agent erred at law in finding that Appellant could apply for the relaxation of Respondent’s bail terms and consequently that its failure to so apply meant that along with Respondent it was equally culpable for the delay in the hearing of the disciplinary matter.

The Designated Agent seriously misdirected himself on the facts in failing to find that Respondent was culpable for the delay and thus could not seek to benefit from such delay through payment of salaries.

The Designated Agent erred at law in finding that the no work no pay principle was inapplicable in this matter.

The designated Agent erred at law in finding that section 5 of the code of conduct applicable between the parties was a factor which disentitled him from applying principles of fairness so as to deny Respondent salary and benefits.

Both parties stated that they had no oral submissions to make and would rely on the documents filed of record.

A reading of Appellant’s submissions filed of record shows that Appellant takes with a number of factors. It was alleged that the second Respondent did not take into account the issue of no work and no pay and that in the circumstances the Appellant was not liable to pay the First Respondent. Issues were also raised as to who was responsible for not having the disciplinary proceedings held. It was also argued for Appellant that Second Respondent concentrated on the legality or otherwise of the suspension and not the other issues raised by the Appellant.

On the other hand, First Respondent took the view that Appellant could not blow hot and cold by stating that he had been responsible for delaying the hearing when it was Appellant who had caused his arrest and that the subsequent bail conditions barred him from attending at the workplace. First respondent also averred in the documents that the suspension was void and nothing could emanate from such a illegality.

The Code of Conduct provides as follows:

“16.1 In certain circumstances it may be necessary for the employee to be laid off from his place of work while investigations take place e,g, where the employee’s continued presence is likely to interfere with fair and thorough investigations.

16.2 In the event of an employee being laid off, it will be on full pay and benefits and the hearing shall be heard as soon as possible.”

This Code of Conduct is in the form of Statutory Instrument 273 of 2000. This is termed subsidiary legislation and has the force of law. Appellant’s letter to First Respondent suspending him clearly stated that it was with no salary and benefits. The heading of that letter reads “SUSPENSION WITHOUT PAY AND BENEFITS”. In Schierhout v Union Government (Minister of Justice) 1919 AD 30, it was held that where a statute requires that a decision can only validly be taken by a person or tribunal in a particular, no power can validly be exercised save by the person or tribunal and in the manner prescribed. It was also stated in the same case that a failure to comply with the provisions of a statute renders the decision or action taken void ab initio. The Appellant’s letter of suspension addressed to the First Respondent clearly fell foul of the provisions of the Code of Conduct. The numerous grounds of appeal filed by the Appellant are clearly a red herring. The matter turns on the legality of the suspension. It was not a lawful suspension. Nothing could arise from the illegality.

As stated in Gwanda Rural District Council v Lourens Martinus Botha (SNR) SC 174/20, a litigant should not seek to benefit from one’s own wrong-doing. Appellant is clearly aware and appreciates that the suspension letter is inconsistent with the provisions of the Code. No efforts have been made to withdraw the letter. Appellant wants to have its cake and eat it. Courts cannot condone and be part and parcel of such shenanigans. The appeal ought to be dismissed for lack of merit.

The Court makes the following Order:

The appeal, being devoid of merit, is hereby dismissed.

Appellant to meet First Respondent’s costs.

Maguchu & Muchada Business Attorneys-	Appellant’s legal practitioners

ZIBAWU-					First Respondent’s representatives.