ZESA Holdings (Private) Limited V Osbon Matunja

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/185/21
HELD AT HARARE ON 16TH SEPTEMBER, 2021
CASE NO.
Judgment No. LC/H/185/21
Case No. LC/H/101/20
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/185/21

HELD AT HARARE ON 16TH SEPTEMBER, 2021         CASE NO. LC/H/101/20

AND 22ND OCTOBER, 2021

In the matter between:-

ZESA HOLDINGS (PRIVATE) LIMITED				Appellant

AND

OSBON MATUNJA 							Respondent

Before the Honourable Makamure, J.

For Appellant	:	Mr N.M. Phiri (Legal Practitioner)

With him Ms B. Mahuni (Legal Practitioner)

For Respondent	:	Mr D. Peneti (Legal Practitioner)

MAKAMURE J.

INTRODUCTION

This is an appeal by the appellant/employer against a decision made against it.  Such decision was made by a hearing authority appointed by the employer (appellant).  The hearing authority is not in the employ of the appellant.

PRELIMINARY ISSUES

Before the appeal could be argued, several preliminary issues were raised on behalf of the respondent.  These are as follows:

That the appellant, being the employer (in an employer/employee relationship with the respondent) has no right to appeal the Hearing Officer’s decision.

That appeal ground 1 is generalized and ought to be struck off the Notice of Appeal.

Ground of appeal 5 is academc and ought to be struck off the Notice of Appeal.

Ground of appeal 6 is erroneously framed and ought to be struck off.

Ground of appeal 7 is academic and ought to be struck off.

Mr. Phiri who appeared for the respondent abandoned ground of appeal number 7.  This means that there are now six grounds of appeal.

SUBMISSIONS

In his oral submissions Mr. Maguchu relied on the case of PIONEER TRANSPORT VS DOUGLAS MAFIKENI SC 45/2017 (SC45/17).   However there is another Supreme Court judgment between the same parties on the same facts, that is, PIONEER TRANSPORT V DOUGLAS MAFIKENI SC 65/2018 (SC 65/18) which arrived at a different conclusion from SC 45/17.  In SC 45/17 the Supreme Court held that an employer cannot appeal against a decision of its own disciplinary machinery.  In SC 65/18 the conclusion was that the employer could appeal.  Reference was made to JERRY MUSARIRA V ANGLO AMERICAN CORPORATION SC 53/05 where the Supreme Court stated that:

“I would point out here that as long as a charge of misconduct is preferred by an employer against an employee there is always a certain element of institutional bias, as the employer is the offended party.  However, this happens to be the situation in all misconduct cases.  What is important is that the misconduct matters are dealt with in a manner that is fair and impartial and that the rules of natural justice are followed.  The rules of natural justice in such a case are that the party concerned –

must be given adequate notice;

must be heard or be able to present his/her side of the story; and

should be allowed to call witnesses if he/she so wishes.  See DABNER V SA RAILWAYS AND HARBOURS 1920 AD 588 AT 598.”

(My underlining)

In his address Mr. Maguchu argued that the position taken by the Supreme Court in the second judgment SC 65/18 is obiter.  This he submitted was because the issue which it decided on was not placed before it and neither was it argued.  In SC 45/17 on the other hand, the Supreme Court noted that it would be ridiculous for an employer to appeal a decision made by its appointee.

The present matter was dealt with in terms of Statutory Instrument 15/2006 (S.I. 15/06), the National Code of Conduct.  Mr. Maguchu argued that while S.I. 15/06 provides that “a party” may appeal, this must be interpreted in a manner that avoids absurdity.  Mr. Maguchu submitted that the Court should not give a meaning that is ridiculous and undesirable.  In the circumstances therefore Mr. Maguchu submitted that “a party” as provided for in Statutory Instrument 15/06 can only mean an employee.  Mr. Maguchu referred the Court to the case of TOYOTA ZIMBABWE V RICHARD POSI SC 55/07 where the Supreme Court stated that –

“We are bound by the rule of construction to the effect that we must presume that there is no intention to alter the common law. …  A code of conduct cannot alter or abrogate a principle of common law.  It does not matter that the code of conduct is a product of an agreement.”

In the present case, Mr. Maguchu argued, S.I. 15/06 cannot amend the common law.  The common law can only be amended by an Act of Parliament.  Mr. Maguchu further argued that the use of Statutory Instrument 15/06 as the code of choice was done without consulting the respondent.  This, Mr. Maguchu submitted, offends against the constitutional provisions granting all persons equality before the law.  In the present case therefore the respondent was not granted equality before the law in that he did not participate in choosing the hearing authority.  However, Mr. Maguchu proceeded, equality was regained by entitling the employee the right of appeal.  In the circumstances Mr. Maguchu submitted, the employer cannot have both the right to appoint a hearing authority and then appeal.  The employer therefore does not have the right to appeal its own decision.

With respect to the verdict of “caution and discharge” Mr. Maguchu argued that there is no competent verdict in civil matters.  This forms the basis of grounds 5 and 6.  The hearing authority ought to have considered the main charge and meted out the appropriate penalty.  With respect to ground 1, there were some fuel coupons which were found to have gone missing.  They were therefore not accounted for.  This resulted in the charge of theft and fraud.  Mr. Maguchu submitted that the fact that the said fuel coupons went missing cannot be equated to theft where the essential elements of theft were not satisfied.  Thus grounds 1, 5 and 6, Mr. Maguchu submitted, cannot under the circumstances stand.  This would mean that the appellant is left with three grounds, namely 2, 3 and 4.

In response Mr. Phiri who appeared for the appellant argued that the rules of natural justice demand that there be fairness.  Mr. Phiri submitted that in matters of discipline at the workplace, it is the prerogative of the employer to set in motion disciplinary proceedings.  The employer therefore cannot be faulted for this.  Mr Phiri argued that in the spirit of fairness “a party” in Statutory Instrument 15/06 and Section 92D of The Labour Act, (Chapter 28:01) (hereinafter referred to as ‘The Act’) envisages the employer being in a position to appeal a decision made against them.

THE LAW

Section 56 of the Constitution of Zimbabwe provides that:

“All persons are equal before the law and have the right to equal protection and benefit of the law.”

Section 92 D of the Act provides:

“A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court”.  (Emphasis added).

And

Section 8 (6) of Statutory Instrument 15/2006 provides:

“(6) 	A person or party who is aggrieved by a decision …” (Emphasis added).

ANALYSIS

In TINASHE KAMBARAMI VS 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST AND FOUR OTHERS SC 66/21 the Supreme Court stated that:

“In discussing the principle to be applied by a court in interpreting statute, MALABA CJ in ZAMBEZI GAS (PVT) LIMITED V NR BARBER (PVT) LTD AND ANOTHER SC 3/20 stated the following:

It is the duty of a court to interpret statutes.  Where the language used in a statute is clear and unambiguous, the words ought to be given the ordinary grammatical meaning.  However, where the language used is ambiguous and lacks clarity the court will need to interpret it and give it meaning.  There is enough authority for this rule of interpretation.  In ENDEAVOUR FOUNDATION AND ANOR V COMMISSIONER OF TAXES 1995 (1) ZLR 339 (S) at page 356 F-G the Supreme Court stated:

The general principle of interpretation is that the ordinary, plain, literal meaning of the word or expression, that is, as popularly understood, is to be adopted, unless that meaning is at variance with the intention of the Legislature as shown by the context or such other indicia as the court is justified in taking into account, or creates an anomaly or otherwise produces an irrational result”.

In the code of conduct which resulted in the two Supreme Court judgments with two different conclusions, the relevant part with respect to appeals provided as follows:

”E.	APPEALS AND REVIEW OF MATTERS

A party which may be aggrieved by the decision of the Disciplinary Committee as per D.1 above may, within 5 days –

E.1 	Appeal to the Chief Executive.

E.1.1.	Appeals to the Chief Executive where the issue involves dismissal or any form of termination of employment shall be in writing and shall state the grounds of appeal.”  (Emphasis added)

In SC45/17, the Supreme Court noted that

“On a common sense basis, backed by an appreciation of the above statement, (JERRY MUSARIRA above), the ridiculousness of an appeal by an employer against a decision of its own disciplinary machinery becomes self-evident.”

The Supreme Court then held that in terms of the applicable code of conduct an appeal to the Chief Executive was limited to a person who had been penalised with dismissal.  The appellant was therefore not entitled to appeal.  In the result the appeal therein to the Managing Director was held to be a nullity.  This was found to be so because Managing Director was not clothed with the authority to vary a decision which did not involve a penalty of dismissal.  The respondent too could not appeal as the decision that was made against him did not involve dismissal.  For that reason the Supreme Court dismissed the appeal.

In SC65/18, the Supreme Court noted that the phrase “a party, which maybe aggrieved”… gave both the employer and employee the right of appeal.  Both are parties to the dispute.  The Supreme Court then stated that –

“Accordingly, the employer being an aggrieved party, acted within its statutory rights in appealing against the decision of the Disciplinary Committee.”

The Supreme Court then held that when the Managing Director considered the appeal, he did not hear the side of the employee.  The failure to hear the other side meant that the Managing Director violated the audi alteram partem rule which is a fundamental tenet of natural justice.  For that reason the decision of the Managing Director was set aside leaving the decision of the Disciplinary Committee extant.  The matter was then remitted to the Labour Court for the Court to hear both sides before making a decision.  This was in keeping with the decision in DALNY MINE V BANDA 1999(1) ZLR 220 which lays down the principle that procedural irregularities must be corrected.  So while in the earlier case, SC 45/17 the appeal was dismissed, in SC 65/18 the appeal was allowed and the Supreme Court ensured that the procedural irregularities would be corrected.  There was a pertinent observation in both cases.  This is that there is a certain degree of institutional bias in favour of the employer since the employer is the offended party.  The observation made in the JERRY MUSARIRA case (above) applies with equal force in the present matter.

I will now turn to the grounds of appeal and I quote:

“1.	The Disciplinary Authority misdirected itself infact and subsequently erred at law in finding that theft and fraud had not been proven in the face of evidence submitted by the employer regarding unaccounted fuel coupons.

2.	The Disciplinary Authority erred at law in acquitting the Respondent of the charge of misrepresentation on the basis that the Appellant had failed to prove malice.

3.	The Disciplinary Authority grossly erred at law in acquitting the employee in respect of the alternative charge even after finding that the manner of records used by the employee was not in compliance and far below the standards, principles and code of ethics as set by the Institute of Internal Auditors in Zimbabwe.

4.	The Disciplinary Authority erred at law by admitting into evidence, documentation that failed to meet the minimum standard as required from an employee with the experience and stature of Dr. Matunja being diary extracts, even after admitting that such evidence was not acceptable in the circumstances.

5.	The Disciplinary Authority erred at law in imposing a penalty of ‘caution and discharge’ in respect of a charge in which the Disciplinary authority acquitted the employee.

6.	The Disciplinary Authority erred at law in imposing a penalty of ‘caution and discharge’ for a serious offence which warranted dismissal

7.	The Disciplinary Authority erred at law in failing to notify the parties of the right and procedures of filing an Appeal against his decision.”

Broadly speaking, a party who is aggrieved by a decision made against them should be able to appeal against it.  This is what is envisaged by both the Constitution and the Labour Act.  It goes without saying that the Constitution and the Labour Act are documents which were drafted by legally trained personnel.  On the other hand it is trite that codes of conduct are ordinarily drafted by laypersons who may not appreciate the possible consequences of the employment codes which they draft.  It is noted that the applicable code is the National Code of Conduct Statutory Instrument 15/06 whose intention was to ensure that workplaces which do not have their own employment codes can use.  It too has its own problems as shown by the present matter.  However whichever way it is, the employer has always got the upper hand at the workplace.  It is the prerogative of the employer to have or not to have a code at the workplace.  This is trite.  So whether they adopt the National Code or have their own, it is still their choice.

It is trite that there is always a degree of bias in favour of the employer as articulated in JERRY MUSARIRA V ANGLO AMERICAN CORPORATION (above).

Thus where the employer chose to use the National Code, they are still clothed with the institutional bias.  Having an institutional bias is only natural as not having such would be unusual and not in the best interests of their institution.  In the present matter it is the employer and not the employee who made that choice.  The employer proceeded to appoint the relevant hearing authority.  I did not hear the appellant to deny this during the course of submissions.  Infact, while the position is trite, Mr. Phiri in his submissions did confirm that it is the prerogative of the employer to initiate disciplinary proceedings.

Now going back to the two judgments SC 45/17 and SC 65/18, the second judgment held the view that the employer had not afforded the employee the right to be heard.  Consequently, the Supreme Court remitted the matter to the Labour Court for a rehearing. This serves to ensure that both parties are treated equally before the law.  The first judgment SC 45/17 observed the ridiculousness of an employer appealing its own judgment.  This would be like the employer “having their cake and eat it,” so to speak. Clearly that is unfair. In TOYOTA ZIMBABWE V RICHARD POSI (above) the Supreme Court referred to Maxwell Interpretation of Statutes 12th ed at page 105 where the following is stated:

“Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words.  There are certain objects which the legislature is pressured not to intend, and a construction which would lead to any of them is therefore to be avoided.”

I am of the view that interpreting “a party” in the present matter to include the employer would create an anomaly (TINASHE KAMARAMI V 1893 MTHWAKAZI RESTORATION MOVEMENT AND FOUR OTHERS (above)).  I am therefore persuaded to agree with Mr. Maguchu.  In the result therefore I respectfully associate myself with what the Supreme Court stated in the earlier judgment PIONEER TRANSPORT V DOUGLAS MAFIKENI SC 45/17.  This means that the appeal is not properly before the Court.

CONCLUSION

In view of the foregoing, I find that there is merit in the first preliminary point raised.  The appellant has no right of appeal against a decision made by its own appointee.  The first preliminary issue is upheld.

Having come to this conclusion I see no reason to consider the other preliminary issues in any detail.  In the result, it is accordingly ordered that:

The appeal be and is hereby struck off the roll.

MESSERS MUVINGI & MUGADZA – Appellant’s legal practitioners

DUBE MANIKAI & HWACHA – Respondent’s legal practitioners