Thomas Chiyangwa v Med-Tech Holdings (PVT) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/619/2013
HARARE ON 30th SEPTEMBER, 2013
CASE NO. LC/H/565/2013
AND 22 NOVEMBER, 2013
JUDGMENT NO. LC/H/619/2013
---------




IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/619/2013

HARARE ON 30th SEPTEMBER, 2013			CASE NO. LC/H/565/2013

AND 22 NOVEMBER, 2013

In the matter between

THOMAS CHIYANGWA     			–	Appellant

And

MED-TECH HOLDINGS (PVT) LTD		–	Respondent

Before The Honourable R. Manyangadze, J.

The Honourable B.T. Chivizhe, J.

For Appellant: 	J. Mawopa (Trade Unionist)

For Respondent: 	Mr D. Phiri (Human Resources Officer)

MANYANGADZE, J.

This is an appeal against the decision of the Negotiating Committee of the National Employment Council for the Commercial Sector (NECCS) which upheld the dismissal of the Appellant from Respondent’s employment.

The Appellant was dismissed from employment on 13 December 2012, after being found guilty of violating Respondent’s Code of Conduct.

The charge against the Appellant was that he contravened Section 4 of the NECCS Code of Conduct (the Code), in that he unlawfully took company property with the intention of permanently depriving the company of the use of such property.  In particular, it is alleged that on 16 October 2012, he took 7 boxes of a product called Easy Waves from the Warehouse, which he sold at a shop at Muponda Stadium in Ruwa.

The Respondent’s Disciplinary Committee convicted him on 11 December 2012.  The Respondent’s Chief Executive Officer confirmed the conviction and terminated Appellant’s employment on 13 December 2012.  Appellant was unsuccessful in his appeals to the Local Joint Committee and the Negotiating Committee of the NECCS.

Having exhausted all the available domestic remedies, he then lodged his appeal with the Labour Court.

The appeal is based on two grounds.  Firstly, Appellant contends that Respondent failed to follow the Code of Conduct when he appointed the Designated Officer who presided over the disciplinary hearing.  The Designated Officer was not from within the employment of the Respondent, contrary to what is prescribed by the Code. The failure therefore renders the disciplinary hearing a nullity, according to the Appellant.

Secondly, Appellant avers that the Respondent failed to properly assess the facts of the matter.  It should not have concluded that Appellant was guilty of misconduct on the basis of those facts.

The first ground of appeal is concerned with procedural justice, and the second ground goes to the merits.  Naturally, the procedural challenge should be disposed of first, as it will determine whether or not to go on to the merits.

The Designated Officer who handled the disciplinary proceedings was one Mr Douglas Phiri, a Labour Consultant who runs a labour consultancy based in Harare.  The Appellant avers that the Designated Officer was appointed by the Respondent outside the provisions of the Code.  The Code enjoins the Respondent to appoint a Designated Officer who is within the employment of the Respondent, after consultation with the Works Council.

The Respondent did not mount a serious challenge to this issue.  All he said was that the Designated Officer in question was appointed in consultation with the Works Council.  It was a bald assertion without anything to substantiate it.  He then hastened to add, “In any case, just the mere appointment would not have affected the decision arrived at.”  In other words, Respondent was saying it does not matter he appointed someone outside the provisions of the Code, as it would have no effect on the decision arrived at.  Put differently, there was no prejudice in the irregular appointment.

Section 3.3. of the Code provides as follows:

“The employer, after consultation with the Works Council, shall appoint in writing one or more persons in his employment to be the “Designated Officer” for purpose of administering this Code.”

The provisions of the Code are expressed in very clear and peremptory language.  Its requirements on the appointment of a Designated Officer are mandatory.  By appointing a consultant who runs his own practice, the Respondent clearly violated the provisions of the Code, which placed on it an obligation to appoint a person in its employment.

What needs to be determined is whether this breach of procedure renders the disciplinary proceedings in question null and void.

It is not all breaches of procedure that vitiate disciplinary proceedings.  The materiality of the breach, and the extent of the prejudice it causes or potential prejudice it creates are paramount considerations.  See Nyahuma v Barclays Bank (Pvt) Ltd 2005(2) ZLR 445.

In the instant case, an outsider was made to preside over Appellant’s disciplinary proceedings. This appointment carried with it the potential prejudice of someone not conversant with Respondent’s systems deciding a matter concerning one of its employees.  By requiring that the Designated Officer be within Respondent’s employment, it appears the intention was to have an employee tried by his peers.  A stranger may not appreciate the administrative and operational environment within which the employee functions.  It is not clear what criteria the employer used in picking a consultant running a private practice to determine the fate of one of its employees, completely disregarding its own Code of Conduct.

Strangely, both the Local Joint Committee and the Negotiating Committee made no comment on the issue, despite it having been raised by the Appellant.  As critical institutions within the NECCS grievance handling structures, one would have thought they would be concerned about Respondent’s flagrant disregard of the NECCS Code.

In my view, the appointment of a Designated Officer outside the provisions of the Code is a fundamental issue.  It goes to the question of whether or not such a person has jurisdiction to preside over the misconduct proceedings.  There must have been a reason why, in negotiating the Code, it was found necessary to have such an officer appointed as provided for.  The Code was registered after agreement on this essential issue.  If employers are then left to determine who and how the disciplinary process should be handled in their respective organizations, the administration of the Code becomes shambolic.

The infraction of procedural rules laid down in the Code in this matter cannot be ignored as a non-issue.  It is not as peripheral as other infractions such as failure to observe stipulated time lines, which, in most cases, are condonable.

What then should be the appropriate remedy for the breach in casu?  I am inclined to follow the guidance laid out in the case of Dalny Mine v Banda 1999(1) ZLR 220(S), where McNally JA stated:

“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularity.  By this, I do not mean that such irregularities should be ignored.  I mean that the procedural irregularities should be put right.  This can be done in one of two ways;

By remitting the matter for hearing de novo and in a procedurally correct manner,

By the Tribunal hearing the evidence de novo.”

(emphasis added)

This matter has weaved through the entire fabric of the NECCS grievance handling and disciplinary process, involving the Designated Officer, the Chief Executive Officer, the Joint Local Committee and the Negotiating Committee.  I do not think it will be in the interests of justice to have it remitted to another Designated Officer for rehearing, as it may possibly agonizingly retrace the same route to this court, in the event that one of the parties is again aggrieved by the outcome of the rehearing.  I will therefore adopt the second option recommended in the Dalny Mine case, supra.

It is accordingly ordered that:

The appeal be and is hereby allowed on the basis that Respondent violated the NECCS Code of Conduct.

The decision by the NECCS Negotiating Committee dated 2 July 2013 be and is hereby set aside.

The Registrar be and is hereby directed to set the matter down for a hearing de novo before this court.

The Appellant shall remain on suspension without salary and benefits pending the outcome of the hearing de novo.

Each party shall pay its own costs.

Manyangadze J.	………………………………

Chivizhe J.	………………………………

Council for Workers Union of Zimbabwe, Representing the Appellant.

Human Resources Manager, Representing the Respondent.