Spinner Zhou v Minister of Health and Child Care & Anor

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/171/23
HELD AT HARARE 16 MAY 2023, 14 JUNE 2023 AND CASE NO LC/H/48/23
22ND JUNE 2023
---------


==============================

IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/171/23

HELD AT HARARE 16TH MAY 2023,14TH JUNE 2023 AND CASE NO LC/H/48/23

22ND JUNE 2023

In the Matter Between

SPINNER ZHOU

APPLICANT

And

MINISTER OF HEALTH AND CHILD CARE

1st PERSPONDENT

And

PUBLIC SERVICE COMMISION

2nd RESONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

For the Applicant : In Person

For the both Respondents : Mr L .T .Muradzikwa (Civil Division)

MAKAMURE J.

Introduction

This an application for review. It is opposed.

The following abbreviations are used in the body of the disciplinary proceedings: PMD, DEHO , DMO. They stand for Provincial Medical Director, District Environmental Health Officer and District Medical Officer respectively.

The applicant was employed by the respondent as an environmental health technician. He was charged with three acts of misconduct in terms of the Labour( National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 ( S.I. 15/06). Disciplinary proceedings were conducted against him. He was found guilty of all the three charges. He was penalized with dismissal. He appealed internally but his appeal failed. The applicant was aggrieved by the procedure adopted by the respondent in conducting the disciplinary proceedings hence this application.

The applicant’s sole ground for review is that:

“1. The proceedings leading to the Applicant’s dismissal are tainted with procedural irregularities”

Section 92 EE of the Labour Act Chapter 28:01 (The Act), provides for review as follows:

“92EE Grounds of review by Labour Court

(1) Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection with (this) Act may be brought on review before the Labour Court shall be—

(a) absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

(b) interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned;

(c) gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.”

The facts

The facts of this case are largely common cause. They are as follows in short.

The applicant was employed by the respondents as an environmental health technician in the Mutawatawa District, Zimbabwe. He was based at a place called Nyanzou Clinic. He was asked to transfer to a district called Chikomba but he did not go to Chikomba. He wrote to his superiors requesting for reversal of the transfer. The request for reversal of the transfer was declined. He failed to report for duty at the said Chikomba for a period in excess of five days. During his stay at Nyanzou he also wrote his superiors letters which were considered to be unprofessional and disrespectful.

The Disciplinary Proceedings

As indicated earlier on applicant was charged with three acts of misconduct in terms of the National Code of Conduct, S.I.15/06. The charges were as follows:


1) Violation of paragraph 4(a) of S.I. 15/06: ‘Any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract.’ The allegations with respect to this charge are that the applicant threatened his superiors and wrote unprofessional and disrespectful letters ‘to the “DMO and the PMD”’. which is insubordination’

2) Violation of paragraph 4(b): ‘Willful disobedience to a lawful order’. The allegations are that the applicant disobeyed the PMD’s instructions by not reporting for duty in Chikomba on 23 May 2022.

3) Violation of paragraph 4(e): ‘Absence from work for a period of five or more working days without leave or reasonable cause in a year.’ The allegations with respect to this charge are that the applicant did not report for duty at Chikomba for a period in excess of five days.

The applicant wrote his superiors and in one correspondence he suggested that one of the superiors was corrupt. The applicant did not deny writing disrespectful letters. During the disciplinary hearing the applicant confirmed this by saying:

“All the letters were written by me. I wrote unprofessional and disrespectful letters, I did it purposefully.”

Later on, during the course of the hearing the applicant explained himself as shown below in an exchange between the Disciplinary Authority (DA), some of the witnesses and himself:

“DA: Mr Zhou our real issue of concern are the letters of unprofessionalism and disrespectful (sic) please stick to those issues.

Mr Zhou: Ok. Yes, the letters they were unprofessional and disrespectful because I wanted to provoke the DMO to attract an audience with him. Put any judgement you want. He (the DMO) hired people to work against me at IRS. I used to 100% respect the DMO. I am going to the Permanent Secretary, I am not disrespecting the Disciplinary Authority. Write that I am guilty on all the charges against me.

...

Mr Zhou: What I want to tell you is I refused to transfer because my letter was quoted misconduct.”

...


Disciplinary Authority: Please state your reasons for objecting to transfer clearly.

Mr Zhou: I had acquired some stands here at Nyanzou village, one for my wife and the other one was mine. I had recently transferred my children from Chipinge to Pfungwe, I also had my wife relocate from Marondera to Nyanzou were I am working. I had asked the PMD to clear me to transfer to another Province because I was sure with all the allegations no DEHO would want to work with me in this Province.

...

Disciplinary Authority: Don’t you think that it was wise to report to Chikomba District first complying with the instruction then after assuming duty you then air your objections?

Mr Zhou: I did not know of the process.

Complainant: The letter with instructions was not vague, it was clear.

Disciplinary Authority: Now that you understand will you comply to(sic) instructions of the PMD’s letter to transfer to Chikomba District?

Mr Zhou: I told the PMD that I will not go to Chikomba District, I told the Board of Investigation that I will not go to Chikomba District and now I am telling you the Disciplinary Authority that I will never go to Chikomba District ( Sadza District Hospital).

One of the doctors, a Dr Mubonani, was one of the applicant’s superiors. He saw some of the correspondences from the applicant. He also had occasion to deal with the applicant and was aware that the applicant was on transfer to Chikomba District. He testified during the disciplinary proceedings. Part of Doctor Mubonani’s testimony is as follows:

‘Dr Mubonani: Those letters he has I was trying to help him with the issues he was complaining about since 2019. Mr Zhou lost respect of my office as he would barge in anytime, that is when I advised him to report to his supervisors because I had given him chances to air out his issues but they did not seem to get solved. I do not answer to Mr Zhou at any level, I am senior to him both professional and organizational levels(sic). I am offended by the motion that he wanted to see my reaction. I supervise him not the other way round.’

Applicant’s Position


The applicant, both in his founding affidavit and in his address to the court argued that the respondents were wrong in using S.I. 15/06 to discipline him. He argued that S.I. 15/06 should only be used where a workplace does not have a code of conduct of its own. The applicant further argued that the Respondents should have used the Health Service Regulations, 2006 (S.I.117/2006). Alternatively, the argument continued, if S.I.117/2006 was for some reason not applicable, the respondents ought to have used the Public Service Regulations, 2000. In the result the applicant submitted that the proceedings that were conducted against him from the beginning to the end were a nullity. Consequently, the applicant prayed that the proceedings be set aside and that he be reinstated or alternatively that he be awarded an appropriate amount of damages should reinstatement be no longer possible. Some of the authorities cited by the applicant are Chikomba RDC v Pasipanodya SC26/2012; City of Gweru v Masinire SC56/18; Mugwebie v SEDCO Ltd and Anor 2000(1) ZLR 93 (S)

**Respondent’s Position**

The respondents’ position is that at the time that misconduct charges were preferred against the applicant, the Health Services Regulations 2006, were not applicable as by then they were not registered as a code of conduct. That is why resort was had to the National Employment Code of Conduct. The respondent also argued that the Public Service Regulations, 2000 do not apply to persons employed by the Health Service Commission since they do not form part of the Public Service. The submission on behalf of the respondents therefore was that the appropriate code of conduct was used.

The following authorities were used in support of this submission: Health Services Board v Dr Peter Magombeiyi LC/H/APP/552/19; Tendai Tamanikwa and 3 Others v Zimbabwe Manpower Development Fund SC 197/11; Chikomba Rural District Council v Herbert Pasipanodya SC26/12. Air Zimbabwe (Pvt) Ltd v Chiku Mnensa and Another SC89/04.

Mr Muradzikwa who appeared on behalf of the respondents addressed the Court on the appropriateness of the penalty. Mr Muradzikwa argued that the penalty was imposed after the exercise of judicial discretion. He argued further that this Court was not at liberty to alter the penalty. In the circumstances Mr Muradzikwa submitted that the applicant was properly charged, convicted and the appropriate penalty was imposed. The following cases were cited in support of the submission that this court cannot easily interfere with a penalty imposed by a lower tribunal: Barros & Anor v Chimpondah 1999 (1) ZLR 58 @ 62F-63A; Nixon Ramani v National Social Security Authority SC38/03; Mashonaland Turf Club v George Mutangadura SC5/12; Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60/03.

It was the final submission on behalf of the respondents that the applicant has not made a case for review and that the application ought to be dismissed with costs for lack of merit.

In response the applicant insisted that a wrong code of conduct was used and therefore the application should be granted and he be reinstated.

**Analysis of the law and facts**

The applicant was dismissed for i) any act of conduct or omission inconsistent with the express or implied terms of his contract of employment; ii) willful disobedience to a lawful order and iii) absence from work without reasonable excuse. This was in violation of provisions of the National Employment Code of Conduct S.I. 15/06. From the record of proceedings he committed acts of misconduct as charged. He does not deny this as reflected above. The applicant’s grief is with the code of conduct which his former employer used. At the time when the charges were leveled against him, had provisions of the Health Services Regulations been used, I doubt whether he would have raised any complaint at all. This is said in view of the fact that: he was purposefully disrespectful to his superiors; he willfully disobeyed a lawful order and he absented himself from duty without reasonable excuse. He is therefore clearly guilty of all the charges.

The respondents’ position is that the use of S.I.15/06 was proper under the circumstances. In this respect therefore it is important to see what the provisions of the Labour Act Chapter 28:01 (the Act) are.

S3 of the Act provides as follows:

‘3 Application of Act

(1) This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the Constitution.

(2) For the avoidance of any doubt, the conditions of employment of members of the Public Service shall be governed by the Public Service Act [Chapter 16:04].

(3) This Act shall not apply to or in respect of—

(a) members of a disciplined force of the State; or


(b) members of any disciplined force of a foreign State who are in Zimbabwe under any agreement concluded between the Government and the Government of that foreign State; or

(c) such other employees of the State as the President may designate by statutory instrument.’

The applicant is not a member of the Public Service. This means that the Public Service Regulations, Statutory Instrument 1 of 2000 do not apply to him. Further he does not fall under any subsections of S3 of the Act.

The law is clear. Where an employer has got a code of conduct, they cannot use any other code during disciplinary proceedings. This means that they cannot use S.I. 15/06. S.I. 15/06 is only to be used where there is no code of conduct at the workplace. This is clear from both the provisions of the Act and precedent. Below I have quoted extensively from two cases to demonstrate the importance of using the workplace’s own code of conduct. The National Code of Conduct is only a fall-back position.

In Chikomba Rural District Council v Herbert Pasipanodya SC26/12 the Supreme Court stated as follows:

“The above grounds raise one issue only and that is whether at law, the appellant, which had a registered code of conduct, was entitled to discipline the respondent using the National Employment Code of Conduct.

The starting point is s 12B of the Labour Act [Cap. 28:01] (“the Act”). That section provides in relevant part as follows:

“12. An employee is unfairly dismissed –

(a) if, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or

(b) in the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9).” (…)
 The Labour (National Employment Code of Conduct) Regulations, 2006 (“the Regulations”) were made in terms of s 101(9) of the Act. Those regulations also provide in s 5 as follows:

“5. Termination of contract of employment

No employer shall terminate a contract of employment with an employee unless –

(a) the termination is done in terms of an employment code which is registered in terms of section 101(1) of the Act; or

(b) in the absence of the registered code of conduct mentioned in (a), the termination in terms of the National Employment Code of Conduct provided for under these regulations; or

(c) ...

(d) ...” (…)

Section 101 of the Act provides that a registered employment code shall be binding in respect of the industry, undertaking or workplace to which it relates.

It is the appellant’s contention before this Court, as it was in the court a quo, that the appellant was entitled to use either the Regulations made under the Act or its code of conduct or both as this was specifically agreed upon in the contract of employment signed by both parties.

There can be no doubt, regard being had to the provisions in the Act and the Regulations to which reference has been made, that the submission by the appellant that it was entitled to use either the Act or the Regulations or both is not tenable. Both the Act and the Regulations are clear that the National Employment Code of conduct contained in those regulations can only be invoked where there is no registered code of conduct. Since it is common cause that the appellant does have a registered code of conduct, the termination of a contract of employment of any of its employees had to be in terms of its code of conduct and not the National Employment Code of Conduct. The appellant therefore erred in terminating the respondent’s employment in terms of the National Employment Code of Conduct.”


In City of Gweru v Masinire SC56/18 the Supreme Court stated that:

“The Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 is the model code envisaged in s 12B (2) (b) above. Ordinarily it is meant to provide a platform for settling labour disputes where there is no internal or domestic disciplinary code of conduct at the work place.

Considering that it is undesirable for parties to a dispute to be left without an appropriate mechanism of resolving their labour disputes, like professor Madhuku and CH Mucheche, I consider that s 12B (2) (b) should be given a broad purposeful interpretation to include circumstances where an existing internal code of conduct or dispute resolution mechanism cannot for justifiable reasons apply to a particular case. It therefore appears to me that the legislator intended the model code of conduct to be a fall-back labour dispute resolution mechanism where it is impossible or inappropriate for good reason to apply any other dispute resolution mode. To that extent it is a universal disciplinary code of conduct fitting all circumstances according to the exigencies of each case within the confines of the Labour Act.”

In Air Zimbabwe (Pvt) Ltd v Chiku Mnensa & Another (above), the Supreme Court held that a person must escape liability because they are innocent and not because of the failure by another employee to properly conduct the proceedings. I respectfully agree with that position. It is however to be noted that in Air Zimbabwe (Pvt) Ltd (above) the problem was not the code which was used but how it was applied. In the present case Mr Zhou committed acts of misconduct. He says he was disciplined in terms of a code of conduct other than the one at the workplace and therefore this was wrong. The position is that where the employer has got no employment code of their own, they use the National Code of Conduct .Mr Zhou insisted that a wrong code of conduct was used to discipline him.

I had occasion to properly read Statutory Instrument 117 of 2006, Health Services Regulations 2006. It appeared to me to be a statutory instrument providing for the employees who fall under the Health Service Board (this would mean employees of the respondents like Mr Zhou, the applicant). Its Part VIII (sections 42 to 52) provides for the disciplinary process for the Respondents .The disciplinary proceedings against the applicant were conducted in 2022. This was long after the statutory instrument in question had been promulgated .I also referred to previous matters which have come before this Court . For example Fadzanai Mtize v Health Services Board LC/H/336/14; Peter Shenjere v Health Service Board
 LC/H/713/2016; Vanzai Majada v Health Services Board LC/H 410/ 2016. Unfortunately I was not able to access the case of Health Services Board v Dr Peter Magombeyi LC/H/APP/522/19 which was referred to on behalf of the respondents. However, the other matters of this Court which I have cited, all seem to have been guided by the same statutory instrument, S.I.117/2006. That is why I was concerned. I was therefore not sure what Mr Muradzikwa meant when he said that there was no code of conduct for the respondent at the material time. For that reason, I called the parties back to court.

On 16 June 2023 parties appeared before me for Mr Muradzikwa to clarify what he meant when he said that S.I. 117/2006 was not a registered code of conduct in view of my understanding of S.I. 117/06. Mr Muradzikwa insisted that there is a new S.I. 117/2006 ‘as amended’ which was promulgated in February 2023. Mr Muradzikwa submitted that the new amended S.I. 117/2006 is now registered with the Ministry of Public Service Labour and Social Welfare and it is now a registered code of conduct. To the credit of the respondents, there is a more recent case which was before this Court, that is, Dr Ekofo Moke Robert v Chitungwiza Central Hospital and Two Others LC/H / 27/2021( Dr Ekofo). In Dr Ekofo, the respondents conducted disciplinary proceedings in terms of the National Code of Conduct. In that case, it was held that S.I. 117/2006 was then not a registered code of conduct.

It would therefore appear that in the present case, there was a justifiable reason for the respondents to use S.I. 15/06 in conducting disciplinary proceedings against the applicant. For this reason, I am now persuaded that the respondent was right in using the National Code of Conduct when disciplinary proceedings were conducted against the applicant.

**Conclusion**

The applicant’s grief was that the respondent used a wrong employment code during the disciplinary proceeding against him. The contrary has been proved on a balance of probabilities. This means that the application for review fails.

In view of the foregoing it is ordered that:

1. The application for review be and is hereby dismissed.

2. Each party bears its own costs.

*Civil Division of the Attorney General’s Office, Legal Practitioners for the Respondents.*
--- END OCR FALLBACK ---