Palani Muleya v Scientific and Industrial Research and Development Centre (SIRDC)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/275/2013
HARARE, 30 JULY 2012
CASE NO. LC/REV/H/02/2011
JUDGMENT NO.LC/H/275/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/275/2013

HARARE, 30 JULY 2012			         	 	CASE NO. LC/REV/H/02/2011

AND 25 OCTOBER, 2013

In the matter between

PALANI MULEYA						-	Appellant

And

SCIENTIFIC AND INDUSTRIAL RESEARCH		-	Respondent

AND DEVELOPMENT CENTRE (SIRDC)

Before The Honourable B.T. Chivizhe : Judge

For Appellant 	-	Mr D. Kufaruwenga (Legal Practitioner)

Dzimba, Jaravaza and Associates

Respondent		-	Mr S.Hwacha (Legal Practitioner)

Dube, Manikai and Hwacha

CHIVIZHE, J.

The matter was placed before me as an appeal conjoined with an application for review.  Both matters were opposed.

The brief background to the matter is as follows:

The Appellant was employed by the Respondent as the General Manager of Z.T.S.  On the 15th of September, 2010 he attended an Executive Management meeting chaired by the Chief Executive Officer of the Respondent, one Dr Mafoti.  The Appellant was alleged to have committed acts of insubordination and disrespectful conduct towards Dr Mafoti.  The Appellant however initiated a grievance procedure under Part 5 of the SIRDC Code of Conduct on 22 September 2010.  The Respondent in turn suspended Appellant on the 29th of September 2010.  The charges leveled were two, Firstly breach of category D5 viz insurbodination and secondly breach of D6 viz any act, conduct or omission likely to bring disrepute to SIRDC or inconsistent with the express and implied conditions of the employee’s contract of employment.  The Appellant was arraigned before the Disciplinary Committee on 11 and 12 October, 2010.  Through a letter dated 20th October, 2010 Appellant was advised of his conviction on both charges and the consequent penalty of dismissal with effect from 29th September, 2010.

The Appellant then lodged the present application for review conjoined with an appeal.  The grounds on which he seeks review are as follows:

Some of the members of the “disciplinary committee” are not Board Members of the SIRDC as is required by Section 12(ii) of the SIRDC Code of Conduct, and as such the committee did not have jurisdiction to conduct a disciplinary hearing to against the Appellant.

The Board Members who purported to represent the Appellant in the disciplinary hearing were imposed on the Appellant despite the Appellant’s challenge that they be removed – on the basis of their prior partisan conduct towards the employer’s cause.

The disciplinary proceedings against the Appellant continued notwithstanding the expiry of the time frame provided in Section 13(i) of the SIRDC Code of Conduct.

The disciplinary panel refused to give the appellant an opportunity to make submissions in mitigation.

The Appellant was suspended immediately after initiating the grievance procedure contained in the SIRDC code of conduct, thereby making the suspension an attempt to frustrate the Appellant’s entitlement to the pursuit of the grievance procedure outlined in the code of conduct, in violation of Section 6(i)(e) as read with section 6(2) of the Labour Act (Chapter 28:01).

The Appellant’s suspension contravened Section 8(i) of the SIRDC Code of Conduct in that the letter of suspension was written by the Chief Executive Officer in his personal capacity and not by a disciplinary committee as provided for in the code of conduct.

The Appellant was suspended before a disciplinary hearing was conducted, in violation of Section 18(3) of the SIRDC Code of Conduct.

The appeal has also been noted on the following grounds;

The decision of the “disciplinary committee” to terminate the Appellant’s employment is a legal nullity because the committee was improperly constituted.

The evidence led during the disciplinary proceedings does not sustain the charges which were being faced by the Appellant.

The Respondent opposed both the application for review and the appeal.  The Respondent also raised five objections/points in limine.

Firstly in terms of Rules 15/16 of the Labour Court Rules the application for review and appeal ought to be in the prescribed Forms LC3 and LC4.  Secondly, that there are no proper grounds of appeal filed in the appeal.  Thirdly, in the alternative the purported grounds of appeal are not grounds of appeal being so vague as to be meaningless.  Fourthly, there is no prayer in the purported review and the application failed to cite the Disciplinary Committee and its members.  Fifthly, that in the circumstances there is neither an appeal nor a review pending before the Labour Court.

At the hearing of the matter Mr Hwacha for the Respondent, raised the same points in limine.  Mr Kufaruwenga also made submissions in response.  In respect of the objections in limine it is the court’s finding as follows;

Firstly, in respect of the forms used in both application for review and appeal.  It is common cause Appellant adopted abridged versions of both forms LC3 and LC4 prescribed by the Rules.  Rule 37 of the Labour Court Rules allows for modification of the prescribed forms, the forms however must substantially comply with the standard form.  Both forms do not substantially comply.  For an example, the notice of appeal does not indicate which determination is being appealed against (Form LC3 provides a selection box for Appellant to tick the appropriate box).  The notice of appeal also does not indicate the date on which the determination was made.  Form LC3 also requires an Appellant to state the brief facts and to select in boxes the relief sought.  It is common cause the application for review was filed without a prayer.  It was only after the Respondent brought that to Appellant’s attention through its notice of opposition that the Appellant then sought to amend its papers.

Secondly in regards the grounds of appeal the grounds are not clearly set out.  Apart from the vagueness the first ground of appeal is indeed a ground for review.

Thirdly, in regards to the failure to cite the Disciplinary Committee this requirement which is to be found in Rule 256 of the High Court Rules has no equivalent provision in the Labour Court Rules.  Even if it is accepted as contended by Mr Hwacha that the Labour Court has similar powers as the High Court on review I am inclined to follow the approach taken in Chirenga vs Delta Distribution HH-72-03 where the High Court, after considering the import of Rule 256 still came to the conclusion that it is not necessary in an application for review to cite the Disciplinary Committee which handed down the determination.

Based on the first finding above the court in the exercise of its discretion granted under the Rules of Court condoned Appellant’s non-compliance with the Rules principally because it was the court’s view that the matter would be best dealt with on the merits rather than on the basis of technicalities.

On the merits of the application for review the Appellant alleged at least seven failures by the Respondent in the disciplinary proceedings which according to him vitiated those proceedings.  I have conveniently placed the issues under four heads.

Composition of Disciplinary Committee

It was Appellant’s contention that some of the members of the Disciplinary Committee members were not board Members as required under Section 12(ii) of the Code of Conduct. He singled out in particular Dr Chanda.  It was Appellant’s contention that Dr Chanda is neither a member of SIRDC Board Manpower nor is he the Director General.  Based on the decisions in Mineral Marketing Co-op of Zimbabwe vs Mazvimavi 1995(2) ZLR 353(S) Merchant Bank of Central Africa vs Dube James SC 6/2004.  It was Appellant’s contention that the presence of Dr Chanda was a procedural irregularity sufficient to vitiate the proceedings.  The Respondent’s position was that Dr Chanda served as a co-optee in the alternative.  Section 12 of code of conduct provides for the composition of the Disciplinary Committee to be as follows;

Two members of the SIRDC Board Manpower Committee representing SIRDC.

The Director-General representing SIRDC.

One Deputy Director General representing the Executive Employee.

Two Directors of Institutes representing the Executive Employee.

Human Resources Manager/Director of Corporate Affairs (in attendance).

Clearly from it’s composition it is made up of 3 employers representatives whilst the other 3 are employers representatives.  The 7th (Human Resources Director) sits as a neutral observer.  The Code makes no provision for the presence of a co-optee or an alternative as suggested by Respondent.  Other than explaining that Dr Chanda was a co-optee Respondent has tendered no further explanation as to why Dr Chanda a stranger was co-opted to sit on the Disciplinary Committee.  Dr Chanda’s presence was clearly forbidden and irregular.

The second issue under this head was the issue of the employee’s representatives.  It was contended by the Appellant that whereas Section 12(ii)(c) and 12(ii)(d) provided for appointment of employee representatives to the disciplinary Committee, the three employee were imposed on the Disciplinary Committee by the Respondent.  The Respondent’s position is that there is no requirement under the Code for the three employee representatives to be appointed by the employee.  The Code of Conduct does not specifically provide for the appointment of employee representatives.  Even in the absence of that provision, it stands to reason that the employee representatives have to be elected by the employee himself in order to balance between the employer and employee interests in the dispute resolution mechanism.  That also constitute a fundamental basis for a fair hearing.  The Respondent has not disputed that the employee representatives were identified by the Respondent.

The last point under the heading is that of the Human Resources Representative.  The Appellant submitted that, Mrs Mapfumo, who was supposed to be neutral by her conduct was biased and partisan to the employer.  The record reflects at page 10 that Mrs Mapfumo was asked by the Chairperson to read on behalf of Dr Mafoti’s closing summary in his absence.  There is nothing in the record as to suggest that Mrs Mapfumo was anything other than a neutral observer.  That one incident which referred to by Appellant is not sufficient to justify a finding of bias and impropriety on the part of Mrs Mapfumo.

Based on my findings in respect of irregular presence of Dr Chanda’s on the Disciplinary Committee and the improper imposition of the employee representatives by the Respondent it is my conclusion that the Disciplinary Committee was improperly constituted and this amounted to a fatal irregularity.

2.	Suspension

(a)	The first issue under this heading is that the Appellant contends that he was suspended on 29th September, 2010 after initiating the grievance procedure on 22 September 2010 thereby making the suspension an attempt to frustrate the Appellant’s pursuance of his rights under the code.  The disciplinary procedure and grievance procedure are two separate procedure under a code of conduct.  There is no reason why they cannot run separately and at the same time.  Appellant has not shown to the court’s satisfaction how by being placed on suspension for an alleged misconduct the Respondent was frustrating his attempt to seek redress for a perceived violation of his rights as an employee.

(b)	The Appellant also contends that the suspension itself contravened Section 8(i) of the SIRDC code in that the letter was written by the Chief Executive Office in his personal capacity and not by a Disciplinary Committee as provided under the code.  Appellant has not established what prejudice, if any he suffered as a result of this position.

(c)	Under this last point the Appellant contends that the suspension was invalid in that he was suspended before a disciplinary hearing was conducted in violation of Section 18(3) of the SIRDC Code of Conduct.  The Respondent counter - argued that there is no requirement under the code that an employee has to be suspended as a necessary first step to disciplinary proceedings.  The suspension provided under Section 13 is optional.  The Code of Conduct provides for two forms of suspension, the one in Section 18(3) as a penalty and the other in Section 13 as suspension before investigation.  Clearly the Respondent from the letter of suspension intended to invoke Section 13 and not Section 18.  The Appellant could not have been prejudiced by the error.

Mitigation

The Appellant contends finally under the application for review that the disciplinary panel refused to give him an opportunity to make submissions in mitigation.  The record shows on page 16 of the minutes of disciplinary hearing that the Appellant legal Representatives had requested for an opportunity to mitigate as required under the Statutory Instrument 15 of 2006.  The Chairperson then indicated that as the disciplinary procedures were conducted in terms of the registered code of conduct for SIRDC, Statutory Instrument 15 of 2006 had no application as it is reverted by organizations without codes of their own.  As the SIRDC code of conduct also had no provision on mitigation the committee could not allow Appellant to mitigate.

My finding in respect of mitigation is that the Disciplinary Committee erred when it failed to receive mitigation after finding the appellant guilty on both charges leveled.

Having come to the conclusion that the Responded committed fatal procedural irregularities in the disciplinary proceedings and cognizant of the principles set out in Dalny Mine vs Banda 1999(1) ZLR 220 in which the court emphasized the undesirability of deciding labour matters on the basis of procedural irregularities the court is faced with two options.  The first is to remit the matter for a hearing de novo and in a procedurally correct manner.  The second is that the Labour Court proceed to consider the evidence and come to its own decision.  Although I have considered the first option of remitting to the Disciplinary Committee I am however cognizant of the need to bring finality to the matter.  Since I have before me the complete record including all the evidence in this matter to enable me to determine this matter I shall proceed to do so.

The Appellant was facing two charges Category D5 being insubordination – wilful refusal to obey a lawful order and Category D16 being generally any act, conduct or omission likely to bring disrepute to SIRDC or inconsistent conduct of an employee’s contract of employment.  The Respondent to support the charges led evidence from the Chief Executive Officer, Dr Mafoti whose evidence was essentially that Appellant had during the meeting rudely asked him why he was going to Iran on a Cabinet/President approval trip when every nation was avoiding any relation with Iran.  It was his further evidence that this was not the first time the Appellant was questioning the wisdom of the chief Executive Officer; that Appellant had also during a financial presentation interjected stating the words “The Chief Executive Officer knows nothing about accounts – vadzidzise George” which was taken to imply that the Chief Executive Officer was financially illiterate, that when he had asked Appellant to leave the meeting Appellant had retorted as he left that “I have better things to do.  I am going to sell herbs.”

It was Respondent’s submission that the insubordination charge arose from circumstances where Dr Mafoti had cautioned Appellant to resist from his rude and disorderly behavior and Appellant refused.  The Appellant was thereafter ejected from the meeting.  The second charge arose from Appellant’s conduct of being rude and abusive towards his boss in a meeting with other employees and executive.

The appellant disputes the facts as submitted by the Respondent.  His submission is that after Dr. Mafoti announced he was leaving for an official trip to Iran he (Appellant) had expressed concern on the wisdom of having scientific exchange programmes with Iran when Iran seemed to be isolated by the rest of the world.  When a presentation was being made by one George Kembo and the Chairman asked George a question Appellant states that he then announced that accounting principles should be ventilated by the accounting experts themselves referring to George.  The Chairman was annoyed and shouted that Appellant was an idiot and that he could fire him on the spot.  Appellant submits that the Chairman then ordered him out of the meeting.  In walking out he had uttered words to the effect that he would take the opportunity to deliver herbs.

Between the two versions placed before the court the Respondent’s version sounds more credible.  Did the Appellant’s conduct as espoused by Respondent amount to wilful disobedience to a lawful order?  The Appellant says it did not.  The Appellant instead suggests both the Appellant and CEO should have been competently charged under Category C8 of the Code.

Category C8 reads as follows;

“C8 Being made and insolent to a customer/client or believing in an insolent manner towards one’s superiors or colleagues.  This constitutes disrespect and can be expressed either by words or conduct.”

I am satisfied on the basis of the facts in the record that the charge under category D5 was improperly leveled against the Appellant.

With regards the second charge under Category D16 the Appellant’s contention is that charge was also improperly leveled as from his conduct he cannot be said to have brought SIRDC in disrepute considering the meeting was a closed one nor a public one.  Secondly, his conduct could not be termed inconsistent with his contract of employment for having expressed a personal opinion different from his boss.

It is clearly evident from the record that the Appellant was rude, insolent and abusive towards his boss during the meeting.  In his own heads he admits that ‘tempers flared and things went out of control and the language from both sides was not civil neither was it temperate or polite’.  An employee must be respectful to authority and not use abusive language or insults in the workplace.  There can be no doubt that by his conduct Appellant acted inconsistent with the fulfillment of the implied conditions of his contract of employment.  His conduct going as it were to the root of the employment contract the penalty of dismissal was clearly warranted. The appeal clearly cannot succeed.

In the result it is ordered as follows;

The appeal be and is hereby dismissed with costs.

The decision by the Disciplinary Committee is hereby set aside.

The dismissal by the employer with effect from 29th September, 2010 is confirmed.

Dzimba, Jaravaza and Associates Legal Practitioners, Representing The Appellant.

Dube, Manikai and Hwacha Legal Practitioners, Representing The Respondent.