Sanyati Baptist High School v Stephen Mapani

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/506/2014
HARARE, 22 JULY 2014
CASE NO. LC/H/506/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/506/2014

HARARE, 22 JULY 2014	    		  	            CASE NO. LC/H/255/14

AND 01 AUGUST 2014

In the matter between:-

SANYATI BAPTIST HIGH SCHOOL				Appellant

And

STEPHEN MAPANI						Respondent

Before Honourable E Muchawa, Judge

For Appellant		-	Mr. H.I. Chitima (Legal Practitioner)

For Respondent		-	Ms S. Chihombe (trade Unionist)

MUCHAWA, J:

Before me is an appeal against the determination of the National Employment Council Welfare and Educational Institutions which determined that respondent be reinstated to his former position without loss of salary and benefits from the date of dismissal pending a hearing de novo.

Respondent was employed by the appellant as an office orderly/clerk when he was charged of contravening schedule 4 of the National Employment Council Welfare and Educational Institutions Code of Conduct (the Code), in particular section 4.23 for having committed sexual harassment.  The facts giving rise to the charges were that he was alleged to have sexually harassed some female students by being sexually abusive and improperly associating with them.

In a disciplinary hearing held by appellant, reliance was solely placed on a report compiled by the Ministry of Education, Arts, Sports and Culture after they carried out an investigation to verify allegations of improper association and promiscuity practice by three male teachers and one female teacher.  None of the alleged victims of the respondent were called as witnesses by appellant.  The report

in question was not made available to the respondent before the hearing.  Instead a recording secretary read the sections of the report relating to respondent, during the hearing.

In compiling the report the Ministry’s investigation team had interviewed teachers and students.  Female students had been asked to write anonymous responses about anyone who improperly associated with any one of them.  Respondent was implicated in the anonymous responses by eight five form 3 girls, seventy four form 4 girls and forty five upper sixth girls.  The reported allegations cited respondent as one who,

caressed the female students’ breasts and buttocks

caressed the female students in the corridors

caressed the female students under the armpits

insulted the students using vulgar language

assaulted the students and was rough

used a key under the students’ armpits and pretended to be unlocking something

grabbed the girls

physically abused the girls by for example, taking pens from the girls’ pockets.

deliberately bumped into girls

sexually abused the girls

In determining as it did, the NEC Appeals Committee observed that there had been a procedural irregularity as appellant had solely relied on the Ministry of Education’s report alone without carrying out its own investigations.  They reasoned too that due process requires that he who alleges should prove and appellant should have called some of the students to testify.  They did not get into the merits of the matter and determined that respondent be reinstated pending a hearing de novo.

The grounds of appeal though many, present two issues for my determination.  These are;

Whether or not the disciplinary committee erred in relying solely on the Ministry of Education’s report as it did in order to secure a conviction.

Whether the NEC Appeals Committee erred by failing to consider the matter on the merits in that it failed to consider the evidence of the girls’ report to the Ministry of Education as contained in the report.

I deal with these issues below

Issue 1 – Reliance on Ministry Report

Appellant submits that respondent was made aware that the Ministry had compiled a report in which he was implicated for improperly associating himself with female students.  Though the report was not availed to respondent, relevant sections were read to him during the hearing.

It was argued that in disciplinary proceedings of such tribunals, parties are not bound by strict rules of evidence.  I was referred to the case of Chataira v ZESA SC 83/2001 for the assertion that it is competent for a disciplinary committee to rely on any piece of relevant evidence provided the evidence is properly obtained.

The report relied on in casu is said to be on official report which was properly used to base a conviction on and it was not necessary to carry out further investigations.

Respondent submits that in relying on the Ministry report only, appellant failed to comply with the Code in section 6.2.2 as it provides that the supervisor should take statements from potential witnesses and make copies of all the documentary evidence as may be required by the disciplinary committee.

Appellant is said to have acted unfairly in not showing to respondent the statements and documentary evidence before the hearing as stated in Chataira v ZESA (1) ZLR 30 (H).  The discovery of documents is said to be required as a matter of fairness.  This is supported by Professor G Feltoe in Guide to Administrative and Local Government Law in Zimbabwe at p 78 thus,

“Tribunals and other authorities deciding cases are obliged to disclose prejudicial information.”

Respondent questions the authenticity of the report read out to him as it was never availed to him.  He alleges prejudice as he claims to have struggled to defend himself as he was unsure of the existence of the report as well as its contents.  Because of the seriousness of the charges, respondent argues that the reliance by appellant on the report was mere formalization through the disciplinary hearing of a decision to dismiss him.  A further argument is that the evidence used was that of young children whose testimonies should be treated with caution as they have a tendency to lie.

I believe my task is to determine whether there was procedural fairness in appellant’s predismissal actions.  I agree that in such proceedings the rules of natural justice require no more than that the domestic tribunal acts according to the common sense precepts of fairness.  (Per Smith J in Chataira v ZESA HCH 9/2000 @ p 3 of cyclostyled judgment).

At the Supreme Court level in Chataira v ZESA SC 83/01 it was held that the employer should advise the employee of the precise charge(s) that he is required to answer in advance so that he can adequately prepare for his defence.  Where an informant makes an allegation of the misconduct, the need to strike a balance between the need to protect the informant and respect his anonymity and providing a fair hearing to the accused is important.  It was also held that there was no need to lead viva voce evidence as long as the employee is shown any statements or documentary evidence being relied on.

In casu respondent was not shown or given the report in question that became the basis of the hearing beforehand to enable him to prepare a defence.  Only certain portions were read out to him in the hearing.  The sections read out do not precisely lay out when and to whom the sexual harassment was perpetrated.  He was not even shown the actual questionnaires filled in by the students.  In this respect I find that there was no procedural fairness to enable respondent to lead evidence in rebuttal of the charge and to challenge the assertion of his accusers.  It is not surprising therefore that the witnesses he had called were found to be unqualified to give evidence as one was not available at the time of the alleged offences and the other was disqualified because he was the complainant.

Further I find too that the Code was not complied with.  This non compliance would not have been fatal, in line with Chataira v ZESA |SC 83/01 if appellant had made the report and its annexure available to respondent before hand to enable respondent to prepare a defence depending on contents of these documents.  I was not favoured with the questionnaires too, just like the NEC Appeals Committee and so I am not in a position to say if the report and questionnaires would be sufficient to enable to enable respondent to prepare a defence.

Consequently I find that the decision of the NEC Appeals Committee cannot be impugned in noting a procedural irregularity.

Issue 2 should the matter have been considered on the merits.

As stated above and submitted by respondent, the NEC Appeals Committee was not favoured with the Ministry report.  Even this court does not have the annexures referred to in the report.

The NEC Appeals Committee correctly followed the guidance in Dalny Mine v Banda 1999 (1) ZLR 220 in which the Court emphasized the undesirability of deciding labour matters on the basis of procedural irregularities instead of putting right such irregularities.  The latter is achieved either by remitting the matter for a hearing de novo, and in a procedurally correct manner or by the Tribunal hearing the evidence itself.  Further the court stressed the point that once the tribunal decides that the proceedings  were fatally irregular, and that it cannot come to a conclusion on the merits, it has no choice but to remit.  (See Duly Holdings v Chanaiwa SC 68/05).

In casu the decision to remit the matter for a hearing de novo cannot be faulted.

The allegations against respondent are serious and made by two hundred and four (204) girls and concern a fragile environment and vulnerable witnesses; school girls and a remittal of matter should not be seen as threatening to the fair and procedural finalization of the matter.  Sexual harassment by its very nature has a negative impact to a productive environment and affects relations at the workplace of school in casu (See Mudzingwa v One Stop SC 38/2001).   This is why I am altering the NEC Appeals determination to place respondent on suspension, as he was before the dismissal.

Accordingly,

The appeal being without merit it be and is hereby dismissed with costs.

The determination of the NEC Appeals Committee is set aside and substituted as follows:

The matter is remitted to the Disciplinary Committee for a hearing de novo in a procedurally correct manner within sixty (60) days of this order failing which respondent shall be reinstated to his former position without loss of salary and benefits.

Respondent remains suspended pending the hearing in terms of paragraph 2 of this order.

MBIDZO, MUCHADEHAMA & MAKONI, Appellant’s legal practitioners