Telone [Pvt] LTD V Servias Michaels

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 29 JUNE, 2023
JUDGMENT NO. LC/H/289/23
CASE NO. LC/H/216/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 29 JUNE, 2023

AND 29 SEPTEMBER, 2023

In the matter between:-

JUDGMENT NO. LC/H/289/23 CASE NO. LC/H/216/23

TELONE [PVT] LTD	Appellant

Versus

SERVIAS MICHAELS	Respondent

Before The Honourable L. Hove, Judge:

For Appellant	: Mr.J.Dondo

For Respondent	: Mr. Chinyanganya

HOVE J:

The appellant, in casu, appeals against the decision of the National hearing committee which found that the disciplinary proceedings against the respondent were irregular and therefore null and void.

The facts of the matter are that the respondent was facing allegations of sexual harassment arising from unwelcome sexually determined behaviors that he had exhibited towards some female employees of the appellant.

The appellant alleges that the respondent was advised that he could appear either in person or with a legal practitioner if he wanted to be represented at the disciplinary proceedings which were commenced against him. The respondent attended the disciplinary proceedings alone and represented himself throughout the first day of the proceedings, the 17th of February 2022. He continued to represent himself the following day, but just before the hearing came to an end on the 18th, he indicated that he wanted to engage a legal practitioner. His request to have the proceedings postponed to enable him to engage a legal practitioner was turned down.

The respondent was then taken ill and the hearing could not proceed on that day, the 18th. The proceedings were postponed to the 11th of March 2022. On the 11th the respondent did not attend the hearing. About 20 minutes after the scheduled time of the hearing, the appellant managed to raise the respondent to try and get him to attend the proceedings. The respondent advised that the meeting could proceed in his absence. He asked that he should be advised of the outcome.

In the meantime, the respondent had been given a sick leave note from his family doctor. He was off sick from 18 February 2022 to 19 February 2022. He submitted another sick note for period 22 February, 2022 to 4 March 2022 .On 4 March2022, he submitted another sick note for period 5 March to 18 March, 2022.

The chairman of the disciplinary committee then requested a comprehensive medical report or that he be assessed by appellant’s doctor. Respondent opted to submit a report and submitted it. The report indicated that his blood pressure had normalized but he was now suffering from depression.

The committee decide to proceed with the hearing scheduled for 11 March 2022.

On 3 March 2022, a firm of legal practitioners had written to the appellant indicating that they had been instructed by the respondent to represent him in the disciplinary proceedings. The appellant stated that the legal representatives did not attend the hearing on the 11th of March 2022, this was in spite of the fact that the respondent had been advised of the hearing dates. They advised that the comprehensive report did not warrant a postponement of the hearing scheduled for 11 March 2022.

The National hearing committee found that the respondent had been denied his right to be legally represented and found that the proceedings were irregular. The national hearing committee held that the respondent should be reinstated to his former position without loss of salary or benefits. The appellant appeal against the order to reinstate and the finding that he was denied legal representation.

The respondent, on the other hand, stated that when the proceedings were adjourned on 18 February 2022, he was given a sick note. When he went again for review the doctor extended the sick leave. The last extension of the sick notes was up to 18 March 2022. At the submission of this last sick note, that is when the employer requested that he either gets a comprehensive report or he submits to the appellant’s doctor for a report. As earlier indicated, he opted for the comprehensive report by his doctor. He submitted same and the appellant wrote him a letter on 11 March 2022 advising that;

“this letter serves to notify you that we are in receipt of your doctor’s report. However, we deem it not comprehensive enough to halt the disciplinary hearing scheduled for today at 9 am”

The respondent’s lawyer had advised the appellant that he was instructed to represent the respondent on 3 March 2022. On 11 March the employer advised the respondent that the hearing would proceed in the morning of 11 March 2022 but did not advice his legal practitioner. The notice was a few hours, delivered first thing in the morning of 11 March 2022 and advising that the hearing would be that same day at 9am.

From the facts as stated by both the parties, it is clear that when the applicant decided to proceed on the 11th of March 2022, the applicant had submitted a sick note indicating that he had some mental health problems. This the appellant dismissed without seeking to find out the nature and extent of the depression. They then gave the respondent notice that the hearing would proceed on the same morning of the delivery of the notice. No notice was given to the respondent’s legal practitioner that the hearing would proceed on the 11th of march. The period of the hearing was covered by the sick note from 5 March to 18 March 2022.

The result was that the appellant required an employee who had been certified by a medical doctor to be sick, to attend a hearing on very short notice. It was not reasonable for the committee to

disregard a medical practitioner’s opinion on the matter.

The disciplinary committee did not properly exercise its discretion in deciding to proceed without giving the notice of hearing to the legal practitioner who had indicated his interest and requested that he be notified when the matter would de set down again for hearing.

The appellant argued that in Nhari v Public Service Commission & another 1998 (1) ZLR 574 the Court had found that although the right to legal representation before a tribunal was beyond question, the rejection of the application for a postponement had not prejudiced the respondent. In casu however it was not an application for a postponement which was denied but the decision to proceed with the hearing when the respondent had mental health issues and without notifying his legal representative, which was an improper exercise of the committee’s decision. The Nhari case is clearly distinguishable. There is thus no merit in the first ground of appeal.

The respondent referred to the case of Maynard v Osmond [1997] QB 240 in trying to impress upon the court’s mind the importance of entitlement to legal representation if one is charged with a serious offence which many have grave consequences for him. I however think the issue is not whether or not the respondent was entitled to legal representation, in the first ground of appeal the point raised was it was encumbered on the respondent himself ensure that he availed himself with legal representation.

During the postponement which was occasioned by his sickness, the respondent had availed himself a legal representative who advised the appellant but was never advised of the date of hearing. The decision to proceed with the hearing was made just a few hours before the commencement of the hearing at 9 am in the morning.

The prejudice suffered by the respondent is evident from the facts. The respondent would have to proceed on very short notice without the guiding hand of his legal practitioner. He would also have had very limited time to advise his legal representative.

The second ground of appeal alleges that the disciplinary committee acted reasonably under the circumstances. I am persuaded otherwise. When a legal practitioner advises his interest in a matter, he should be advised of the date of hearing and given reasonable notice to attend the proceedings. Alternatively, his client would have been given reasonable notice to enable him to prepare to attend the proceedings with his legal representative. It was not reasonable to give his client notice early morning that the hearing would proceed the same morning at 9am and proceed to hear the matter within a period of less than 3 hours. It was too short a notice which shows an improper exercise of

the committee’s discretion. To make matters worse, the respondent was sick and there was a sick note by his doctor that he was unfit to resume at the workplace and there was nothing from an appropriate authority to counter the doctor’s opinion.

Both the two grounds of appeal lack merit. The appeal must fail.

The decision to reinstate the respondent with no loss of salary or benefits is however not justifiable. An employee cannot escape the results of alleged misdeeds because of the failure of another employee to conduct the proceedings in a procedurally correct manner. see in this regard the cases of Air Zimbabwe v Mnensa SC 89/04 the court stated that;

“a person guilty of misconduct should not escape the, consequences of his misdeeds simply

because of a failure to conduct disciplinary proceedings by another employee. He should

escape such consequences, because he is innocent…”

This of course is not said to pre judge the matter or to suggest in anyway that the respondent is guilty of the allegations he is facing but to underscore the point made in the Dalny mine v Banda

1999 (1) ZLR 220 that procedural irregularities can not be the basis of decisions in Labour matters but procedural illegalities must be corrected by remitting the matter back for the matter to be dealt with in a procedurally correct manner.

The Court stated in the Dalny Mine case (supra) that;

“as a general rule it seems to me undesirable that Labour Relations matters should be decided on the basis of procedural irregularities.”

In the result, the decision to find that the proceedings were irregular and ought to be set aside can not faulted. The court the therefore make the following order:

Order:

The decision by the tribunal aquo that the proceedings were irregular and vitiated the proceedings be and is hereby upheld.

The decision to reinstate the appellant into his position with no loss of salary or benefits be and is hereby set aside.

The matter be and is hereby remitted to the appeal hearing authority for it to hear the appeal in a procedurally correct manner.

Each party will bear its own costs.

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JUDGE