Tennie Chimbera v Metallon Gold Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/110/16
HELD AT HARARE 26 JANUARY 2016
CASE NO
JUDGMENT NO LC/H/110/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/110/16

HELD AT HARARE 26 JANUARY 2016			           CASE NO LC/H/REV/100/15

& 4 MARCH 2016

In the matter between:

TENNIE CHIMBERA					Applicant

And

METALLON GOLD ZIMBABWE (PVT) LTD		Respondent

Before The Honourable P Muzofa, Judge

For Applicant			F Piki (Legal Practitioner)

For Respondent		T Tandi (Legal Practitioner)

MUZOFA, J:

This matter was placed before me as an application for review.

The applicant raised a number of procedural irregularities related to his suspension and the constitution of the disciplinary authority.  It was also alleged that there was a splitting of charges and that the disciplinary authority was biased.

Where procedural irregularities are alleged, the applicant must not only show that there were procedural irregularities, it must be shown that the procedural irregularities were prejudicial to him.  Not all procedural irregularities vitiate proceedings see Nyahuma v Barclays SC 67/05.  It is also settled that even where procedural irregularities are established they may not lead to an applicant escaping liability, the irregularities should be addressed.  An employee should be exonerated based on the merits of the case Air Zimbabwe v Chiku Mensa SC 89/04.

I will address the grounds for review in turn.

The suspension

The agreed facts of the case were that applicant was employed as the chief security officer stationed at Shamva.  Following suspicion of misconduct by the applicant, the applicant was suspended on 2 June 2015 the disciplinary proceedings were held on 1 July 2015.

Two issues were raised by the applicant.  That the suspension letter was irregular in that it did not set out the reasons and grounds for the suspension and that the 14 day period was not observed, in violation of section 6 of Statutory Instrument 15 of 2006.  It was alleged that the suspension was illegal as it violated the applicant’s freedom of movement.

The court was referred to the case of Nhari v ZABG SC 51/13 where the Supreme Court noted that where the employer decides to suspend an employee in terms of the Statutory Instrument it must comply with the requirements outlined in the section.

In his oral submissions before the court, the appellant’s legal representative indicated he will not insist on the violation of the 14 day period within which the matter should have been finalised.

The respondent argued that the letter of suspension adequately set out the reasons and grounds for the suspension.  Further to that it was submitted that such letters are drafted by laymen and cannot be expected to be a perfect product of a legal mind.

The respondent charged the applicant in terms of the labour (National Employment Code of Conduct) Regulations, 2006, Statutory Instrument 15 of 2006.  The respondent opted to suspend the applicant pending investigations.  True the respondent was supposed to follow the procedure set out in section 6 of the National Code.

Section 6 (1) thereof provides

“where an employer has good cause to believe that an employee has committed a misconduct mentioned in section 4, the employer may suspend such employee with or without pay and benefits and shall forthwith serve the employee with a letter of suspension with reasons and grounds of suspension.”

I believe the respondent, had good cause and therefore opted to suspend the applicant.  the suspension letter was couched in the following terms:

“suspension from duty

…

You are hereby advised that it is intended to institute a disciplinary investigation into an allegation of:

Theft of gold ore

…”

The part set out to my mind is informative, anyone having received such a note would know that they were suspended so that an investigation could be conducted into an allegation of theft.  The applicant was advised although there were no details about the theft.  There was adequate information to constitute the reasons and grounds for the suspension.  This ground for review has no merit.

The second issue on the suspension letter was that it violated applicant’s freedom of movement.  The part relevant to this aspect in the suspension letter reads

“During the above period of suspension you are not permitted to enter company premises or leave your resident unless specifically arranged with the General Manager or the investigation team leader.”

The applicant did not substantiate this ground for review.  It was just alleged that such restrictions are not provided for in the National Code.  The suspension letter clearly indicated that there was to be an investigation.  It is a common practice and I was not referred to any law that has restricted the condition that an employee on suspension should not visit his work place until the finalisation of the case.  The rationale is to curtail interference with investigations.  This is a concept common in criminal matters where conditions can be set.  I do not believe the requirement to report his movement amounts to a violation of his constitutional right of movement.  The employer would have wanted to know of his whereabouts in the event there was need to get in touch with him.

This could have been more of an administrative issue than a violation.

This argument cannot take the applicant’s case further than where it was.

It was also submitted that the suspension was illegal in that the charge set out in the suspension letter was not the charge that the applicant was subsequently found liable reference was made to the Standard Chartered Bank of Zimbabwe v Matsika 1996 (1) ZLR 123 (S).

I do not think this case is applicable to this case.  In the Matsika case the court spoke on the competence of the dismissal based on the charge not set out in the suspension letter.  In this case the applicant does not refer to the dismissal his case is only confined to the suspension letter.  As the suspension letter stood, 	with the charge of theft of gold ore, it was valid and proper.  At this stage the applicant does not challenge the dismissal it is the validity of the suspension letter that is being raised.

There is no merit in this argument.

Improperly constituted Hearing Body

A point was taken for the applicant that the hearing body constituted of two management representatives and there was no representative for the applicant contrary to section 2 of the National Code.

Respondent submitted that the body that heard the matter was a disciplinary authority and not a disciplinary committee.  The issue of the applicant’s representation by worker’s committee member therefore did not arise.

The disciplinary body was constituted by an administrating official and a management representative.  The parties to the case were the complainant, the offender and the offender’s representative and there was in attendance the minuting secretary.

Section 2 defines both a disciplinary committee and a disciplinary authority.

“disciplinary committee” means a committee set up at a workplace/establishment composed of employer and employee representatives, to preside over and decide over disciplinary cases and/or worker grievances.

“disciplinary authority” means a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or a work place.

The difference between these bodies is the presence of employer and employee representatives who preside and decide on disciplinary cases.  A disciplinary committee should have both representatives.  A disciplinary authority does not have in its constitution any representation for any of the parties.

In order to decipher an employer’s intention in the constitution of such a body one has to consider the members of the panel.  In this case page 1 of the disciplinary  proceedings show that the Human Resources official introduced the hearing panel and inquired if there were any objections-

There was an immediate objection from applicant’s representative that one Dr Madume’s presence was irregular.  The administrating official then set out clearly the parameters and it was recorded.

“He said that he had noted the concerns raised by the offender’s representative but that Dr Madume had the role of a management representative therefore the hearing panel was properly constituted and the hearing could proceed.”

There is no doubt in my mind that Dr Madume was part of the hearing body it was clearly stated.  Respondent tried to wiggle out of this by submitting that Dr Madume was the employer’s representative it could have been a legal practitioner just as the applicant had his legal representative.

I am was not convinced, the employer’s intention according to the introduction of the hearing panel was to include a management representative.  Once there is representation for one party at the decision making level a disciplinary committee has been set out.  It should comply with the definition in toto.  There was no representation for the employee at that level.

The management representative was not an innocent by stander.  He actively took part in the proceedings.  He cross examined the applicant on pertinent issues.  Sight should not  be lost that the complainant gave evidence representing the interest of the employer.  Clearly there was some imbalance.  This was prejudicial to the applicant.

The disciplinary committee was improperly constituted and its decisions null and void.

Bias

The applicant set out this ground for review in that the failure by the disciplinary committee and subsequently the appeals committee to address his defence showed there was bias.

For an applicant to succeed it must be shown that there was a real likelihood of bias mere suspicion is not enough. Facts must exist that would cause a reasonable lay litigant or lay observer to think that the presiding officer is biased against him.  Bailey v Health Professional Council of Zimbabwe 1993 (2) ZLR 17 (S).

In my view such circumstances should be clearly shown and may include events prior to the hearing.  In casu the conduct relates to the manner the hearing was conducted failure to consider the applicant’s defence could have been a result that the defence was not believed by the panels.  There was no bias established.

The disciplinary committee failed to address the preliminary points raised for the applicant.   The appeals committee condoned that.  That was a clear irregularity that vitiates proceedings.  Once a tribunal is seized with preliminary issues it is duty bound to determine them Heywood Investments (Pvt) Ltd t/a GDC Hauliers v Pharaoh Zakeyo SC 32/13.

There were a considerable number of irregularities in the conduct of the disciplinary hearing.  The disciplinary committee was improperly constituted and it failed to determine on preliminary issues.  Although the applicant later did not insist on the failure by respondent to comply with section 6 (2) of the National Code.  There was a violation.

The law is very clear on the question of the effect of procedural irregularities.  They can render the proceedings void and if an act is void then it is in law a nullity Macfoy v United Africa Co. Ltd (1961) 3 ALL ER 1169 at 1172.

Clearly I must set aside the decision of the appeals committee.  The applicant will revert to the position he occupied before the decision of the disciplinary committee.

Accordingly the following order is made

The application for review be and is hereby upheld.

The decision of the appeals committee is set aside, the matter is remitted to the respondent to conduct fresh disciplinary proceedings before a properly constituted hearing body within 14 days of this order.

Each party to bear its costs.

IEG Musumbe & Partners, applicant’s legal practitioners

Kantor & Immerman,  respondent’s legal practitioners