Passmore Hamadziripi v Cross Country Containers (Private) Limited

### Preamble
IN THE LABOUR COURT OF
ZIMBABWE HARARE, 09 OCTOBER 2024
JUDGMENT NO LC/H/116/25 CASE NO
& 17 MARCH
LC/H/686/24
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 09 OCTOBER 2024 & 17 MARCH

2025

In the matter between: -

PASSMORE HAMADZIRIPI

CROSS COUNTRY CONTAINERS (PVT) LTD

JUDGMENT NO LC/H/116/25 CASE NO LC/H/686/24

APPLICANT

RESPONDENT

Before the Honourable Kudya J

For the Applicant	O. Makonya (Unionist)

For the Respondent	T. Marimo (Legal Practitioner)

KUDYA, J:

This is an application for review at the instance of the applicant employee. He is unhappy about the manner in which a labour dispute where he was accused of breaching the employment Code of Conduct by carrying in his motor vehicle unauthorised passengers was handled. His major disquiet is that the employer breached the Code of Conduct in a variety of respects thus rendering the proceedings leading to his dismissal a nullity and a subject for a denovo hearing in his matter following the Code to the letter. The issues which he is aggrieved about can be summarised as follows

His suspension was irregular in that the accountant who suspended him was not his immediate supervisor so lacked capacity to suspend him. The Code required that he be suspended by his immediate supervisor. He was suspended, reinstated and suspended and charged on a single day. The reinstatement suggested that the employer did not

want to charge him. Its about turn was out of order as it had waived its rights when it had withdrawn the first suspension.

His matter was not investigated. The Code requires that a case be investigated before one is charged. Failure to do so is a breach of the Code and a breach of the employee right to be heard.

The disciplinary officer lacked jurisdiction to deal with the matter, his appointment was in breach of the Code which obliges the employer to appoint a committee composed of management and employee representatives or union representatives

The disciplinary officer did not observe the dictates of the right to be heard especially when he called for mitigation before verdict. Such conduct was consistent with handling the matter in a predetermined manner. Equally the appeals officer did not deal with the matter properly if regard is had to the fact that the employee had raised issues around mitigation before verdict etc.

In the result the applicant prayed that the review application succeeds, that the proceedings leading to his dismissal be set aside and that he reverts to the suspended status whilst the matter is remitted for a denovo hearing in a procedurally correct manner.

In response to the review application the respondent stated in summary the following: -

Suspension was regular

The accountant used delegated authority to suspend as per the Code.

The matter was investigated. Evidence of investigation were photos and details of the passengers. No other investigation outside that was needed.

The disciplinary officer did not lack jurisdiction. The employer had the option to appoint the committee or an officer. There was no workers committee so it was impossible to fulfil the management workers committee representative set up.

The matter was not pre meditated. The employee spurned the request to mitigate when requested to do so just after the close of the proceedings and was allowed to do so in writing which he later did. The appeals officer was correct to uphold the verdict and penalty as facts of the case demonstrated clearly that the employee had committed the infraction as alleged.

In the result the respondent prayed that the review application be dismissed with costs.

The applicant in his heads of argument raised point that there was no opposition because there was no resolution authorising the deponent to depose to the opposing affidavit to defend the review. He also argued that there was no assumption of agency as required by the Labour Court rules. He finally argued that the heads of argument were out of time so the respondent was barred to oppose the review.

On the date of hearing the review application, the parties only motivated the merits of the review application suggesting that the points in limine earlier raised had been abandoned. The court therefore deemed it unnecessary to decide on points which were technically abandoned as stated above.

This judgment therefore only concerns itself with the merits of the review. It need be stated that whilst the appellant raised a number of review grounds a resolution of the jurisdiction issue renders a determination of the rest of the grounds academic. The court shall therefore only address the jurisdiction aspect primarily.

It is settled that in determining matters jurisdiction is everything. See Malaba DCJ as he then was in Minister of Foreign Affairs vs Jericho and Standard Chartered bank Zimbabwe SC73/18 quoting Barker McCormac v Government of Kenya 1983(2) ZLR72(SC). This is so because, once it has been concluded that jurisdiction lacked whatever came out of the matter decided without jurisdiction becomes a nullity See Mcfoy v United Africa Company Ltd 1961 3 All ER1169 on nullity and effect of same.

In the case at hand, the jurisdiction question revolves around a simple interpretation of the Code of Conduct which was used to determine the matter. Paragraph A8 of the Code sets out clearly that a disciplinary committee shall consist of 2 management representation and 3 worker committee or in the absence of a workers committee union members.

In the case at hand, the respondent says there was no workers committee hence its resort to a disciplinary officer. The Code set out equally and clearly that resort to an officer is had where there can’t be a committee because there are 4 or less managerial employees and 6 or less non managerial employees.

The record is clear that the minimum requirements of resorting to a disciplinary officer were not satisfied by facts of the case at hand. It is equally clear that, if the workers committee was not there then the union had to come in. It appears the employer hastily decided to appoint the officer without reading clearly what the Code provides for.

It appears it used the law which allows the employer to outsource a disciplinary officer where the internal establishment cannot satisfy the Code’s composition of a disciplinary body requirement for a variety of reasons, chief among being that, the person intended to be disciplined is above the rank of all the employees in the organisation thus leaving only his juniors to discipline him which is undesirable.

Such a scenario did not obtain in the facts of the case under discussion if regard is had to the fact that the union members could be appointed in place of the workers committee members and make up the appropriate disciplinary committee together with the management members. It is palpably clear from the facts of the matter that the jurisdiction construct was beached so all that was done on the matter is a nullity See Mcfoy (Supra).

Having concluded that all that was done was a nullity on account of a breach of the jurisdiction construct it becomes unnecessary to deal with the rest of the grounds. The success of the jurisdiction tenet renders the rest of the grounds successful too. In the result the review application succeeds.

IT IS ORDERED THAT

Application for review being merited it be and hereby succeeds with costs. All the proceedings leading to the applicant’s dismissal be and are hereby set aside. In their place the matter is remitted for a denovo determination in a procedurally correct manner as dictated by the National Employment Council for the Transport Operation Industry Code of Conduct.

Mabundu & Ndlovu Law Chmbers	Respondent’s Legal Practitioners