Suwisai Marume v Chinhoyi University of Technology

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/217/2020
HARARE, 22 SEPTEMBER 2020
CASE NO. LC/H/REV/39/20
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/217/2020

HARARE, 22 SEPTEMBER 2020		     CASE NO. LC/H/REV/39/20

AND 09 OCTOBER 2020

Suwisai Marume							Applicant

Chinhoyi University of Technology				Respondent

Before Honourable G. Musariri, Judge

For the Applicant			-	 Mr L. Madhuku, Attorney

For Respondent		-		Mr S. Mushonga, Attorney

MUSARIRI, J:

The relevant statutes and instruments in this matter are as follows,

The Labour Act Chapter 28:01 hereafter called the Act.

The Chinhoyi Univesity of Technology Act Chapter 25:03 hereafter called the CUT Act.

The Labour (National Employment Code of Conduct) Regulations S.I. 15/06 hereafter called the National Code.

Applicant filed an application for review by this Court of her dismissal from employment by Respondent.  The grounds for review were two-fold namely illegality and irrationality.  I shall deal with the grounds ad seriatim.

Illegality

Applicant was dismissed after a disciplinary hearing for misconduct.  She submitted that the hearing was not “constituted” in accordance with section 26 of the CUT Act.  Subsection (1) provides that

“There shall be a Staff Disciplinary Committee which shall consist of the following members appointed by the Vice- Chancellor –

a distinguished legal person, who shall be a chairman; and

a  senior member of the academic and administrative staff; and

a member of the academic, administrative and technical staff of similar status to the person charged; and

a registered legal practitioner of at least five years standing who does not hold any post at the university and who is nominated annually by the Council.”

The disciplinary committee (panel) in casu comprised Mr I. Muchingambi as Chairperson, Ms I. Karindira as member and Mrs E. Beremauro as member.  Applicant argued that Karindira was not senior administrative staff and that there was no registered legal practitioner.  Applicant concluded in her Heads of Argument that

“5. Being not constituted in accordance with the mandatory provisions of the applicable legislation, the purported decisions of the ’disciplinary authority ‘are a nullity,”

Respondent disagreed through its Heads of Argument.  It argued that,

“2. The Labour Act…make it very clear in section 12B that no employer can terminate an employment relationship in the absence of an employment code.

2.2 Respondent has no employment code hence in terms of section 12B it used the National Code.

2.3 Any disciplinary procedures which are effected outside the peremptory provisions of section 12B are clearly unlawful but the once (sic) in question were within the stated provisions of the Labour Act…as read with S.I. 15 of 2006.”

There is an apparent conflict between CUT and Labour Act.  Whereas CUT requires a specific composition of the disciplinary panel, Labour through the National Code does not have such a requirement.  The panel under the Code is set up at the discretion of the employer.  So which provision prevails in this matter?  Applicant insisted that CUT prevails because it specifically applies to Respondent.  But Respondent maintained that in absence of a registered code it followed provisions of the National code.

I am persuaded that CUT prevails.  It relates specifically to Respondent.  To ignore its contents would render CUT of no force or effect.  That was clearly not the intent of the Legislature when it enacted CUT.  It intended its provisions to bind Respondent.  However l consider that CUT and Labour are not totally inconsistent.  One can read them together harmoniously.  Respondent not having a registered Code is permitted to rely on the National Code.  However its disciplinary panel under the Code must comply with the provisions of CUT.  Which is to say that the panel must comprise the persons spelt out by CUT.

I revert to the panel in casu .  There was no argument about the chairman.  Applicant stated Beremauro was not senior staff.  Respondent through the affidavit (paragraph 6.7) of its Registrar, TB. Bhebhe, stated that Beremauro was a member of equal status to Applicant.  Karindira was a senior Assistant Registrar.  That means that at least 3 members of the panel were legit.  That does not amount to the 4 members spelt out by CUT.  However section 26 of CUT in its subsection 3 provides that

“Two members of the Staff Disciplinary committee shall form a quorum”

On the basis of this provision Respondent submitted that the panel in casu was quorate.  Alternatively the composition was substantially compliant.  I consider that a quorate panel is compliant with CUT.  I also agree with the alternative argument

that there was substantial compliance with CUT.  On that basis l dismiss the ground of illegality.

Irrationality

Applicant restricted the ground of irrationally to the penalty imposed.  She submitted in her Heads that

“13 Can it be said that the misconduct here is ‘one that, on any reasonable basis’ merits the harsh penalty of dismissal?   The answer is clearly No.

14. A penalty must also satisfy a proportionality standard.  It is clear from the evidence emanating from the whole case that the act of misconduct was not regarded by the respondent as dismissible in itself.  The employer appears to be targeting leaders of the workers committee.”

It is common cause that Appellant was charged with a serious offence.  Upon conviction the Code permits the dismissal of the employee, such dismissal is at the discretion of the employer.  The employer in casu  exercised its discretion in favour of a dismissal.  The fact that the employer could have imposed a lesser penalty is neither here nor there in a review.   That is a matter which would be relevant if the matter come to court on appeal.   In this review it cannot be said that the dismissal imposed was irrational.  Effectively Applicant sought to test the fairness of her dismissal through the wrong route.

Having failed on both its grounds, the review needs be dismissed.

Wherefore it is ordered that,

The application for review be and is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E