Zimbabwe Energy Workers Union (ZEWU) v Zimbabwe Energy Workers Union (ZEWU) (as Appellant's representatives)

### Preamble
1
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/202/25
ZIMBABWE HELD AT HARARE 12 MAY
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Before Honourable Mr. Justice L.M. Murasi

For Applicant/Appellant	Ms. C. Mapanda

For Respondent	Mr. I. Chisango

With Mr. S. Mawere

MURASI J.,

PROCEEDINGS OF 12 MAY 2025

This was an application for review. The facts in brief are that Applicant was employed by the Respondent as a Loss Control Officer based in Mutare. Sometime in February 2022, allegations of misconduct were leveled against him leading to charges being preferred against him. He was brought before a Disci0linary Committee which found him guilty and recommended his dismissal from employment. On 31st March 2022, Applicant filed his appeal with the Appeals Officer in terms of the Respondent’s Code of Conduct. The Appeals Committee only made its determination available on 24th January 2025. Applicant is disgruntled by this outcome. In this application, Applicant applied for review of the decision of Respondent’s Appeals Committee. Applicant’s grounds for review were formulated as follows:

The Appeals Committee grossly erred and misdirected itself in upholding the decision of the Disciplinary Committee which committed a gross irregularity by denying the Applicant the right to legal representation.

The Appeals Committee erred and grossly misdirected itself by confirming the determination of the disciplinary committee when the Applicant was denied the right to be heard.

The Appeals Committee grossly violated the provisions of section 22 (2) of the National Employment Council for the Zimbabwe Energy Industry Code of Conduct and Grievance handling Procedures by failing to determine the appeal which was filed on 31st March 2022 within 14 working days as prescribed.

Preliminary Issues

At the commencement of the oral submissions, Mr. Mawere stated that he had preliminary issues to raise. He submitted that the first two grounds for review took issue with the proceedings be fore the Disciplinary Committee and not the Appeals Officer. To this end, he stated that there was no cause of action and those grounds should be struck off. There was no meaningful response from Ms. Mapanda as regards those two grounds. The Court proceeded, in an Ex Tempore Judgment, to strike out the first two grounds whilst holding that the third review ground was meritable.

THE MERITS

Ms. Mapanda submitted that an Appeals Officer is enjoined to determine a matter within fourteen of the filing of the appeal in question. She stated that the appeal was filed with the Appeals Officer on 31st March 2022 and that the Committee had managed to deal with the matter on 21 January 2025. She argued that the provisions in the Code of Conduct were couched in peremptory terms and a failure to comply rendered the decision a nullity. She referred to Mugwebie v Seedco 2000

(1) ZLR 93 (S). She also argued that there was no need for the Applicant to approach the Court as argued by the Respondent as the right was clearly enshrined in the Code of Conduct. She prayed for the decision to be set aside.

In response, it was argued for the Respondent that whilst the Code of Conduct provided that the matter was supposed to be completed within fourteen days, there were certain factual elements which had made this achievement impossible. He stated that some delays were caused by members of the Committee not being found and at times some were not at work.

That the delay was clearly out of the ordinary is without doubt. The Court does not understand how the Respondent was functioning with a system where matters are literally ‘parked’ with no one raising a finger to see how the matters had been finalized. It took Respondent a good thirty- three (33) months to finalize this single appeal from a determination by a Disciplinary Committee. What is surprising is that the Appeals Officer did not even blink and notice that this was flagrant non-compliance with the Code of Conduct. In Lwazi Sibanda and Anor v Fransisca Ncube & Others SC 158/20, PATEL JA (as he then was) had this to say:

“It is trite that the use of the word ‘shall’ in the context of a statutory duty ordinarily connotes the imperative nature of that duty. In each case, it is necessary to determine whether the legislature intended the duty to be mandatory or purely directory. The difficulty in construction usually arises where the relevant duty is not complied with and the intended consequence of that failure to comply is not expressed in the legislation itself. Where the duty in question is held to be peremptory, the failure to comply with it will operate to invalidate or nullify anything done under the governing statutory provision.”

The above clearly confirms the decision in Mugwebie (supra) to the effect that a failure to comply with the mandatory provisions of a Code of Conduct renders the decision a complete nullity. In casu, Respondent’s Appeals Officer was supposed to render a decision within 14 working days. However, that period extended to over thirty months. This was a clear non-compliance with the provision serving to nullify the decision made. In the result, the Court makes the following Order:

The application is hereby granted.

The decision of the Appeals Officer is hereby set aside by reason of non-compliance with the Respondent’s Code of Conduct.

PROCEEDINGS OF 2 JUNE 2025

The same people who represented the parties on 12 May 2025 were in attendance.

Having set aside the proceedings of the Appeals Officer, it became apparent that the decision of the Disciplinary Committee was still extant. It was also not in the interests of justice to remit the matter for a hearing de novo taking into account the appeal had been with Respondent for more that thirty-three months. The Court therefore made the decision that it was going to hear the Appellant’s appeal against the decision of the Disciplinary Committee. The Court requested the Registrar to communicate with the parties so that they would file their respective submissions in the appeal by 28 May 2025 and that the parties should appear for the hearing on 2 June 2025. The record shows that only the Appellant made submissions in the appeal.

In submissions Mr. Chisango stated that they had not filed any submissions as they thought they would be filing them after the Appellant. The Court referred him to the specific instructions that had been given in this respect. The Court stated that it would allow them to make viva voce responses to the submissions by the Appellant’s representative.

Ms. Mapanda submitted that they had filed three grounds of appeal against the decision of the Disciplinary Committee. These are as follows:

The disciplinary committee grossly misdirected itself when it dismissed the preliminary point regarding the violation of section 11 of the Code of Conduct which stipulates that investigations are conducted by the management, in casu, the investigations were conducted by a person who is not a member of the management.

The disciplinary committee grossly erred and misdirected itself in denying the Appellant the right to legal representation in violation of section 69 (4) of the Constitution of Zimbabwe.

The disciplinary authority grossly erred and grossly misdirected itself when it denied the Appellant the right to be heard.

In submissions, Ms. Mapanda stated that she was going to abide by the documents filed of record. She submitted that there was a violation of section 11 of the Code of Conduct by Respondent in that investigations are supposed to be conducted by management. She further submitted that in the present matter, the investigations were not conducted by management but by a junior employee. She added that management thereafter relied on such an investigation which was a nullity as the provisions of the Code of Conduct had not been followed.

In respect of the second and third grounds of appeal, Ms. Mapanda submitted that Appellant’s matter had been on-going for sometime and Appellant sought the services of a legal practitioner. Kit was averred that a Mr. Tandiri, who is a legal practitioner, wrote to the Respondent stating that they had just been briefed and were unable to be present at the hearing of 29 March 2022 due to prior commitments. It is alleged that the secretary to the disciplinary committee acknowledged receipt of that letter. Ms. Mapanda further stated that Respondent did not accede to the legal practitioner’s request and informed him that the matter would resume at 11.30 hours. It was further pointed out that the letter from the Respondent was received at Mr. Tandiri’s offices at 11.25 hours just a few minutes before the resumption of the hearing.

It was argued that Respondent neglected or refused to afford the Appellant the opportunity to be heard. It was stated that Appellant was present at the venue but latter left as he was not feeling well. The Committee decided to continue with the hearing in his absence. Ms. Mapanda argued that Respondent was bent on denying the Appellant his rights to a fair hearing in the circumstances.

Elsewhere in this judgment I made the observation that Respondent did not file any documents pertaining to the appeal. The Court allowed Mr. Chisango to respond to what Appellant had averred both in the documents filed of record and in oral submissions.

Mr. Chisango submitted that investigations had been properly conducted as it was the Chief Risk Officer, one Mr. Chakata who had conducted the investigations and not Mr. Bobo. He indicated that this Mr. Chakata had some authority at the Respondent having regard to the hierarchy of the management. Mr. Chisango further made the concession that Mr. Chakata was not in management but his report had assisted the Manager to make a decision that some misconduct had taken place and proceeded to charge the Appellant. Asked by the Court whether there was compliance with the Code of Conduct, Mr. Chisango replied in the native.

As far as the right to be heard was concerned, Mr. Chisango argued that it was Appellant who was responsible for various adjournment which had taken place during the course of the hearing. He argued that Appellant could not now turn around and alleged that he was denied the right to be

legally represented. He confirmed that a letter from Messrs Tandiri requesting a postponement had been received by the Respondent. He also confirmed that this was the first letter received by the Respondent from a legal practitioner. He however argued that postponements were not there for the asking and referred to the case of Apex v Venetian Blinds SC 33/15 to support his averments. He added that Appellant had waived his right to be heard in the circumstances.

ANALYSIS

Elsewhere in this judgment I referred to the Lwazi case in which PATEL JA (as he then was) exhorted the principle that where the command in a statute is in peremptory form, non-compliance with such command results in a nullity. This should also apply to the present case with equal measure. Section 11 of Respondent’s Code of Conduct provides:

“For the avoidance of doubt, it is hereby expressly declared that-

(a) It shall be the duty of the Management to investigate alleged acts of misconduct involving employees in their respective workplaces in order to determine whether or not to charge the employee concerned.

Provided that where necessary in such investigations Management may enlist the assistance of such officials as Internal Auditors, Human Resources Officials, Security Officers or any other competent employees.”

The provisions referred to above are clear and unambiguous. Mr. Chisango conceded that there was no authority given to the Chief Risk Officer by Management to investigate the matter. There was no letter authorizing him to investigate. The record only contains a Memorandum from the Chief Risk Officer informing the Management of the results of an investigation that was carried out.

Section 36 of the Civil Evidence Act (Chapter 8:01) provides:

“An admission as to any fact in issue in civil proceedings, made by or on behalf of a party to those proceedings, shall be admissible in evidence as proof of that fact, whether the admission was made orally or in writing or otherwise.”

In Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd SC 25/12, it was stated as follows:

“A formal admission made in pleadings cannot be ignored by the court before whom it is made. Unless withdrawn, it prevents the leading of any further evidence to prove or disprove the admitted facts. It becomes conclusive of the issue of facts admitted….The importance of the admission is that it is thus seen as limiting or curtailing the procedures before the court in that where it is not withdrawn, it is binding on the court and in its face, the court cannot allow any party to lead or call for evidence to prove the facts that have been admitted.”

The admission by Mr. Chisango that the investigation was not done by Management or at its instigation was not withdrawn at any stage and is thus evidence before the Court.

The issue raised by the Appellant in the first ground of appeal was raised as a preliminary point in the hearing before the Disciplinary Committee. It is recorded as follows:

“With reference to section 11 (a) of the Code, the Defence claimed there was a gross violation regarding the employee was investigated, as evidenced by pages 11, 12, 13 to 26 of the charging document, by an employee by the name of Bobo, whose grade was between A1 and D2. The Defence alleged it was a violation of the procedure as the Code vests investigative powers in management, which the investigating employee was not.”

The minutes of the proceedings show the following to be how the Disciplinary Committee handled the matter:

“One member was of the view that Preliminary Issues 2 and 3 fell away due to Preliminary Issue 1 being dismissed and also believed that issue 2 should not be entertained due to it involving the Committee delving into the merits of the case to determine it. Another member, however, took the view that the issue 2 was independent of issue 1 though he agreed that entertaining it warranted delving into the merits, thereby agreeing that it be dismissed on that ground. The Committee, being of the position that to deliberate on this preliminary issue would constitute going into the merits if the case. Consequently, they dismissed this preliminary issues.”

A reading of the minutes in respect of the preliminary issue raised before the Disciplinary Committee shows a clear refusal to deal with the issue. The Appellant had raised the crucial point that the report was improperly before the Disciplinary Committee. What the Committee needed to ascertain was whether the report was indeed properly before it, whether management had done the investigation or sanctioned the investigation. Clearly, to state that dealing with the issue would be delving into the merits of the matter was a gross misdirection. It was an irrational decision. The Report of misconduct was improperly before the Disciplinary Committee due to non-compliance with the peremptory provisions of the Respondent’s Code of Conduct.

It is my view that the determination of the first ground of appeal resolves the matter and there is no need to deal with the other two grounds of appeal. The appeal ought to be allowed.

Before concluding, I need to state some disturbing observations about this matter. The Disciplinary Committee sat in March 2022. Appellant filed his appeal in terms of the Code of Conduct on March 31, 2022. Nothing happened until January 2025 when a decision to uphold the Disciplinary Committee’s decision was made. The length of time taken to dispose of the appeal is not explained. Mr. Chisango sought to argue that members of that committee were not readily available. It was clearly not a truthful statement only meant to mislead the Court. The appeal, after being issued, showed that there was no consideration of the provisions of the Code of Conduct and whether the person investigating the matter was indeed clothed with such authority. The other disturbing

feature is that Respondent did not at any stage of the proceedings show any remorse or apologise it being evident that it was responsible for the Appellant’s predicament. Last but not least is the fact that Respondent is a State entity. It is surprising that Appellant’s matter would have subsisted in Respondent’s books for such a long time with no one picking this up. It is clearly a sad indictment on Respondent’s management team.

The following Order is appropriate.

The appeal against the decision of the Disciplinary Committee is hereby allowed.

The decision of the Disciplinary Committee finding the Appellant guilty of misconduct culminating in his dismissal is hereby set aside.

Appellant is hereby reinstated to his former position without loss of salary and benefits with effect from the date of dismissal.

If reinstatement is no longer feasible, Appellant shall be entitled to damages in lieu of such reinstatement which damages may be agreed upon by the parties failure of which either party may approach this Court for quantification.

Respondent to meet Appellant’s costs.

Zimbabwe Energy Workers Union (ZEWU)-	Appellant’s representatives.