Norich Sales (Pvt) Limited v Tendai Munyukwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/174/25
HARARE, 24 JANUARY 2025
CASE NO LC/H/1074/24
In the matter between: -
NORICH SALES (PVT) LIMITED
APPLICANT
And
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In the matter between: -

**NORICH SALES (PVT) LIMITED**  
**APPLICANT**

**And**

**TENDAI MUNYUKWA**  
**RESPONDENT**

Before the Honourable Kudya J

**For the Applicant**  
**T. Matonhodze (Legal Practitioner)**

**For the Respondent**  
**A.T. Nhidza (Unionist)**

**KUDYA, J:**

On 14 January 2025 this court handed down an order by consent where the parties hoped to settle their matter out of court. The out of court settlement failed, resulting in the matter being re-enrolled for 24 January 2025. On 24 January 2025 the matter which was an appeal at the instance of the employer was heard leading to this judgement. A point in limine vis the propriety of the appeal was raised but failed due to lack of foundation. The point therefore does not form part of this judgement.

Facts heading to this appeal are that, following disciplinary proceedings at the workplace the employee went to the Local Joint Committee (LJC) seeking that he be reinstated to his job without loss of salary and benefits. The LJC observed that, the employee had been relieved of his job in circumstances where the disciplinary proceedings were in breach of the time lines set out in the Code of Conduct. It ordered that, the employee be reinstated to his original position with the employer.


The reinstatement order caused the employer to appeal to the Negotiating Committee (NC) The Negotiating Committee reversed the LJC decision and ordered the employer to conduct a hearing denovo guided by principles of natural justice and fairness within 21 days of the Negotiating Committee’s order. The employer chose not to comply with the order but decided to appeal against the order, which appeal is the subject of this judgement.

It raised 3 appeal grounds summarised as follows:

1) Negotiating Committee erred grossly by failing to determine that 14 days in section 47 of the Code is solely limited to the Designated Officer’s investigation and does not extend to the proceedings before the employer in terms of section 6.

2) Negotiating Committee grossly misdirected at law by setting aside the disciplinary proceedings on a technicality without proof of any prejudice to the respondent in circumstances where it had found that the respondent had committed the misconduct.

3) The Negotiating Committee erred on a point of law in that, if the 14-day breach was there it could not nullify the proceedings especially where respondent had voluntarily participated in them.

In the result, the employer prayed that, the appeal succeeds, that the negotiating committee decision be set aside and be substituted with an order dismissing the appeal and setting aside the LCJ decision.

In response to the appeal, the employer stated that: -

1) Negotiating Committee decision to uphold the LJC decision is unassailable. Section 4(7) is clear that the employer should have concluded the disciplinary proceedings within 14 days of receipt of the Designated Officer’s findings forming the case. Employee is prejudiced by the employer’s failure to cure the breach of the Code timelines which render the proceedings a nullity. The employee is being prejudiced in that the merits of the misconduct has not been addressed. Procedural irregularities should not be ignored but should be put right.

2) The Negotiating Committee did not conclude on the guilt verdict neither did it consider mitigation. Both the LJC and the negotiating committee could not entertain the merits of the misconduct before the noncompliance complained about
 Negotiating Committee did not err. As an appellate forum it refused to entertain the merits of the misconduct before the curing of the illegality complained about in the absence of allegations of gross misdirection on the LJC.

In the result, the employee prayed that the appeal being without merit it be dismissed with costs on a punitive scale.

It is settled that the appeal court will not interfere lightly with the exercise of the discretion of a trier of fact. See Nyahondo v Hokonya and others 1997(2) ZLR457. The critical question to be answered is whether it was grossly irregular for the Negotiating Committee to direct that the employer hears the matter denovo within the prescribed time lines.

It is settled that where procedural irregularities abound these should not be ignored but put right. See Nyahuma v Barclays BankSC67/05. In the case at hand, it is apparent the merits of the misconduct has not been ruled on by any of the bodies which dealt with the matter after the guilty verdict and dismissal penalty were meted out. It is also apparent that both the LJC and the Negotiating Committee are both agreed that, the time line breach has to be put right to ensure procedural propriety of the dismissal decision.

It is noteworthy that, even though the employer cited 3 appeal grounds they all basic ally speak to the fact that the alleged timeline breach should not vitiate the guilty verdict and the dismissal penalty.

It is settled that Codes of Conduct have to be followed to the letter. See Hurungwe Rural District Council v Moyo SC42/24. In the case at hand, it is clear from a reading of section 4(7) of the Code of Conduct used in the case at hand that disciplinary proceedings in the employee’s case had to be concluded within 14 days. Since that did not happen the proceedings were therefore as if they had not happen.

It is clear that there is nothing in the exercise of discretion by the Negotiating Committee which can be concluded to have been grossly irregular. See Hama v NRZ 1996(1) ZLR664. There is therefore no basis for this court to find fault with the
 Negotiating Committee’s order that the employer conducts disciplinary processes afresh in a procedurally correct manner.

As to whether substantively the employee’s case will stand the day that is a separate determination to be made on the merits of the case once procedural compliance has been satisfied. In the ultimate it is clear that all the appeal grounds are without merit. The appeal should therefore fail.

**Costs**

The employee prayed for costs on a punitive scale but did not demonstrate why he should be awarded such costs. It is settled that the punitive costs scale is reserved for exceptional cases. See **Mahembe v Matombo HCB 322/03**. No such exception has been demonstrated to justify resort to that scale. The prayer for the punitive costs therefore fails.

**IT IS ORDERED THAT**

Appeal being without merit in its entirety it be and is hereby dismissed with costs on the ordinary scale

The Negotiating Committee decision is therefore to stand.

Matizanadzo Attorneys, Applicants Legal Practitioners
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