Rosina Mutangamhanje v Zimbabwe Open University

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/353/2013
HELD AT HARARE ON 9th &
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO. LC/ H/353/2013

HELD AT HARARE ON 9th &

27th SEPTEMBER, 2013	                                CASE NO. LC/ REV/ H/24/2013

In the matter between

ROSINA MUTANGAMHANJE			–		Applicant

And

ZIMBABWE OPEN UNIVERSITY		–		Respondent

Before The Honourable L. Kudya, Judge

For Applicant  	- R. Venge (Legal Practitioner)

For Respondent  	- R. Mutasa(Legal Practitioner)

KUDYA J:

This is an application for a review of the decision of the Respondent’s Disciplinary Committee which found Applicant guilty of contravening the National Code of conduct SI 15 /06 and subsequently dismissed her.

Applicant was suspended and charged on 26 November 2012 with theft or fraud, alternatively, conduct which is inconsistent with one’s conditions of contract in contravention of the National Code of Conduct. She was brought before a Disciplinary Committee which deliberated on her matter and found her guilty of the misconduct complained of.

She was dismissed from employment following the disciplinary hearing. On the 27th March 2013 the Applicant filed with this court an application for the review of the proceedings which led to her dismissal. The grounds of review were that the Disciplinary Committee was irregularly constituted as it was not constituted by personnel cited in the Z.O.U Act.

She argued that the Committee acted outside its powers set out by the Act as it was chaired by one Kabanda who did not hold any of the offices provided for in the Z.O.U Act vis persons chairing such a Committee. It was therefore, her argument that, such a procedural irregularity vitiated her dismissal. She thus prayed that her dismissal be set aside and that she be reinstated to her original position with full pay and benefits or alternatively that she be paid damages in place of reinstatement.

On the date of hearing of this matter, it became apparent to the court that the arguments which were advanced in the instant case were by and large the same arguments which were made before the court in the appeal case of J. Manjeese and Another vs Zimbabwe Open University LC/H/96/12 .To that extent, counsel in the instant matter agreed to have submissions in the Manjeese case supra incorporated into instant case. It is therefore pertinent to note that, the instant judgment by and large contains the same reasoning which was used in deciding the Manjeese case supra.

The Disciplinary Committee was said to be improperly constituted as it was not composed of the people specified in Section 25 of the Z.O.U Act.  Further to that, it was the Applicants’ argument that Respondent’s dealing with the case in terms of the National Code instead of the Z.O.U Act meant that the disciplinary proceedings were irregular as they were done outside the Z.O.U Act which stipulates who should constitute a Disciplinary Committee in respect of misconduct leveled against an employee.

The Respondent maintained that it was proper for the Applicant to have been charged in terms of the National Code since the Z.O.U Act is inconsistent with the Labour Act in so far as it does not spell out the acts of misconduct and the process to be followed in disciplining an employee.

It is important to note that, if one were to glean the mischief of the Z.O.U Act, it is clear that it intended to discipline its staff in terms of the Committee set up under Section 25. It however fell short by not providing for the other specifics like the punishable offences and how those were to be dealt with. It thus should have come up with an extra piece of law either in the form of a Code of Conduct or elaboration in the Act itself of how the disciplinary processes should have been effected.

Given the fact that the Respondent did not follow the Act in making sure that the Disciplinary Committee be set up as per the Z.O.U Act it is important to note that decision of the University to have disciplinary matters entrusted in the hands of persons styled therein like a retired judge etc could not have been accidental.

It can be gleaned that such was to make sure that when disciplinary issues are handled this is done by persons who are competent to do so in terms of their qualifications. To make any other substitute without good ground cannot be sanctioned by this court.

The court acknowledges the fact that Labour matters need not be decided on technicalities Dalny Mine vs Banda 1999 (1) ZLR 220 but this case has to be looked at together with the case of Air Zimbabwe vs Chiku Mnensa and Mavis Mwarwenye which states that, a guilty person should only escape if he is innocent not on the basis of technical hitches.

Applying the principles of the above quoted cases to the facts of the instant case , it is clear that, on face value the Respondent was satisfied that it had a good case against the Applicant. She thus can not automatically be reinstated for the simple reason that there was a procedural irregularity in her case. However, because her guilt was determined by an improperly constituted disciplinary body, the justice of the case dictates that the matter be dealt with in a procedurally correct manner to cure the irregularity  complained of.

The court is satisfied that the review has merit and the application should accordingly be upheld. It is imperative that the   matter be remitted for a hearing denovo by a properly constituted disciplinary body.

IT IS ORDERD THAT

1. The review being with merit be and is hereby upheld.

2. The matter is remitted to the Respondent so that it can be heard afresh by a disciplinary body which is properly constituted in terms of the Z.O.U Act.

The hearing has to be conducted and concluded within 30days  from the receipt of this judgment ,failing which the Applicant  shall  be deemed to be reinstated with full pay and benefits from the date of  their suspension

c) Meanwhile the Applicant remains suspended until the Respondent has regularized the position in terms of this judgment.

d)	Each party to bear its own costs.

L. KUDYA ----------

Judge - Labour Court

Mambosasa Legal Practitioners  - Applicant Legal Practitioners

Dube, Manikai and Hwacha –Respondent’s Legal Practitioners