Suwisai Marume v Chinhoyi University of Technology

### Preamble
Judgment No. SC 120/22
1
Civil Appeal No. SC 232/21
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REPORTABLE	(105)

SUWISAI     MARUME

v

CHINHOYI     UNIVERSITY     OF     TECHNOLOGY     UNIVERSITY

SUPREME COURT OF ZIMBABWE

BHUNU JA, CHIWESHE JA & CHATUKUTA JA

HARARE: 10 NOVEMBER 2021 & 7 NOVEMBER 2022

L. Madhuku, for the appellant

S. Mushonga, for the respondent

CHATUKUTA JA: 	This is an appeal against the whole judgment of the Labour Court of Zimbabwe handed down on 9 October 2020 in which it dismissed the appellant’s application for review on the basis that the disciplinary authority that heard her matter was legally constituted and that there was nothing irrational about the decision to dismiss her from employment.

BACKGROUND FACTS

The respondent is a university constituted as a body corporate in terms of the Chinhoyi University of Technology Act [Chapter 25:23] (hereinafter called the CUT Act). The appellant was employed by the respondent as a secretary in the Graduate Business School Department from April 2012 to October 2018. Allegations of misconduct were levelled against her for contravening s 4(a) of the Labour (National Employment Code of Conduct) Regulations SI 15/2006 (hereinafter called the National Code of Conduct). It was alleged that between 5 and 15 September 2018 she misplaced sensitive documents, being student dissertation assessment forms and the blue sheet which had been handed to her in a file by the assistant registrar. The blue sheet contained the total candidature. It was further alleged that the appellant’s conduct amounted to negligence and was inconsistent with the fulfilment of the express or implied conditions of her contract of employment which required due diligence and care on her part.  On 30 October 2018 she was suspended from work without salary and benefits while the respondent conducted an investigation into the allegations against her.

PROCEEDINGS BEFORE THE DISCIPLINARY AUTHORITY

A disciplinary hearing into the allegations of misconduct was conducted on 5 and 12 November 2018 before the disciplinary authority. The appellant pleaded not guilty to the charge. Whilst admitting that she received a file with assessment forms from the assistant registrar from which she had removed the blue sheet, she submitted as follows: The assistant registrar did not do a proper handover of the documents in issue and he did not indicate how many assessment forms were in the file. She therefore did not know if the documents she was required to account for were in the file. She did not check the contents of the file as she was supposed to because she trusted the assistant registrar. There was no adequate security in the storeroom where the documents were kept. It did not have a lock and therefore everyone had access to it. She further submitted that she could therefore not take responsibility for the loss because of the lack of security and the fact that she was not aware of the contents of the file.

The respondent submitted that the appellant was not diligent in her conduct as she accepted a file with contents she was not aware of and she was therefore negligent.

The disciplinary authority held that the appellant had a duty to take good care of student materials as there was need to preserve the university’s integrity and reputation which is based on academic materials. It held that the appellant, by her own admission, failed to reconcile the number of assessment forms she had in her file with the total candidature on the blue sheet. The documents were considered to be sensitive. It further held that failure to account for the documents amounted to negligence.

The disciplinary authority found the appellant guilty as charged. It held that the transgression was serious warranting termination of the appellant’s contract of employment with effect from the date of her suspension.

Disgruntled by the decision of the respondent’s disciplinary authority, the appellant filed an application for review in the Labour Court (court a quo) in terms of r 20 of the Labour Court Rules, 2018.

PROCEEDINGS BEFORE THE COURT A QUO

The appellant raised two grounds for review namely illegality and irrationality. She argued as follows: Section 26 (1) of the CUT Act provides that a disciplinary authority consists of four members. The disciplinary authority which presided over her matter consisted of three members. Although the Labour Act [Chapter 28:01] (the Labour Act) through the National Code of Conduct, allows an employer to set up a disciplinary authority at its discretion, the CUT Act which requires a specific composition of the disciplinary panel ought to prevail as it specifically applies to the respondent. Section 26 (1) of the CUT Act ought to be read together with the National Code of Conduct and the respondent was bound by the said Act. The panel that constituted the disciplinary authority was illegal for lack of jurisdiction in that it was not made up of the number of persons required in terms of the mandatory provisions of s 26 (1) of the CUT Act. The decision of the disciplinary authority was therefore a nullity.

The appellant submitted that the alleged act of misconduct was not a serious offence as contemplated by s 4 (a) of the National Code of Conduct. She argued that the sentence was therefore so outrageous in its defiance of logic and therefore irrational and unwarranted.

Per contra, the respondent contended that the composition of the disciplinary authority was legal as it was set up in terms of s 2 of the National Code of Conduct as read with s 101(9) of the Labour Act. It was submitted that s 2 of the National Code of Conduct defines a disciplinary authority as a person or a committee dealing with disciplinary issues in a workplace, as such, a disciplinary authority could be constituted by a single person. It was argued that the composition of the disciplinary authority prescribed in s 26 of the CUT Act was in conflict with the requirements of the Labour Act. It was argued that the Labour Act ought to take precedence, thus the disciplinary authority was properly constituted in terms of s 101(9) of the Labour Act as it takes precedence over the CUT Act. It was further argued that the respondent lawfully resorted to the National Code of Conduct in terms of s 12B of the Labour Act as it did not have a registered employment code to conduct the disciplinary proceedings. It was argued that the respondent could not be bound by s 26 (1) of the CUT Act as it was not a peremptory provision.

The respondent further argued that the appellant was charged under the National Code of Conduct from the onset but did not object to it, thus she could not object to the disciplinary authority constituted in terms of the same regulations. Lastly, the respondent argued that the decision to dismiss the appellant was rational as there was due consideration of the evidence placed before it. It was also argued that the panel was quorate in terms of s 26 (3) of the CUT Act.

DETERMINATION BY THE COURT A QUO

The court a quo found that s 26 (1) of the CUT Act was applicable as regards the composition of the disciplinary “panel” because the act relates specifically to the respondent. It held that the disciplinary authority was therefore not properly constituted as required under s 26(1) of the CUT Act. It further held that despite not being constituted by four members the “panel” was quorate by virtue of ss 26 (3) of the CUT Act which provides that two members of a disciplinary committee shall form a quorum. The court a quo resultantly dismissed the ground of illegality.

The court a quo also found that the appellant was charged with a serious offence. It found that the employer exercised its discretion in favour of a dismissal and dismissed the ground of irrationality. It further found that the appellant ought not to have raised a ground of irrationality in a review application as it is a ground that can only be raised on appeal.

Aggrieved, the appellant filed an appeal with this Court on the following grounds:

“1.	Having determined that the disciplinary authority that presided over the appellant’s misconduct proceedings did not consist of all the four persons stipulated in s 26 (1) of the Chinhoyi University of Technology Act [Chapter 25:23], the court a quo erred in law and misdirected itself in not finding that that fact alone rendered the proceedings a nullity.

2.	The court a quo erred in law and misdirected itself in applying the doctrine of substantial compliance to the composition of the disciplinary authority provided for in s 26 (1) of the Chinhoyi University of Technology Act [Chapter 25:23], thereby improperly finding that a composition of less than the four persons stipulated thereof was valid.

3.	The court a quo misdirected itself in not determining an issue that had been placed before it, that issue being whether or not a Ms Karindira was a “senior member” within the contemplation of s 26(1)(b) of the Chinhoyi University of Technology Act [Chapter 25:23].

4.	The court a quo misdirected itself and erred in law in finding that the question of the rationality of the penalty of dismissal could only be raised in an appeal and not in review proceedings.”

APPELLANT’S SUBMISSIONS

Mr Madhuku, for the appellant, submitted that the determination of the appeal primarily stands on the first ground of appeal that is whether the disciplinary authority was properly constituted.

Mr Madhuku conceded that there was no registered code for the respondent. He also conceded that the CUT Act is not a registered code for the respondent. He argued that despite the absence of a registered code for the respondent, it was not unregulated. He submitted that the CUT Act specifically relates to the respondent and that the disciplinary authority ought to consist of four members as provided for in s 26 of the CUT Act. He submitted that the disciplinary authority consisted of three members contrary to the mandatory provision of s 26 of the CUT Act.

He further submitted that in terms of s 12B of the Labour Act [Chapter 28:01], where there is no registered code of conduct, reliance ought to be placed on the Model Law. He submitted that ss 2 and 6 of the Model Law define a disciplinary authority as one contemplated by s 26 of the CUT Act, thus the latter ought to have been complied with.

He submitted that the court a quo ought not to have relied on substantial compliance as the CUT Act does not provide for substantial compliance. He further submitted that the court a quo erred in finding that a quorum existed where the authority was not properly constituted, as a quorum relates to a properly constituted body.

He submitted that the decision of the disciplinary authority was therefore a nullity having been rendered by an authority which was not properly constituted and ought to have been vacated by the court a quo.

With respect to the other grounds of appeal, he submitted that he stood by the appellant’s heads of argument. He however submitted that the appellant was abandoning the last ground of appeal on the penalty.

RESPONDENT’S SUBMISSIONS

Conversely, Mr Mushonga, for the respondent, argued as follows: Section 12B (2) of the Labour Act is a mandatory provision which requires compliance with the Model Law in the absence of a registered code. The CUT Act is not a disciplinary code. There being no registered code, the respondent was required to comply with the National Code of Conduct. Section 2 of the National Code of Conduct defines a disciplinary authority as a body which can even consist of one member, thus the disciplinary authority was properly constituted.

It was also argued that where there is an irrational sentence, it is a subject of appeal and not review. Mr Mushonga submitted that it is only an appeal that concerns itself with the correctness or otherwise of a decision of a court. It was further submitted that, in any event, sentencing is within the discretion of the employer.

ISSUES FOR DETERMINATION

The issues that fall for determination are:

Whether or not the disciplinary committee was legally constituted.

Whether or not rationality can be a ground for review.

ANALYSIS

The first issue relates to the nature and composition of the adjudicating authority. Both the appellant and the respondent were agreed that there is no registered employment code regulating the respondent. They were also agreed that the CUT Act and particularly s 26 of that Act is not a registered code of conduct. Once such concession is made by the appellant, the disciplinary authority was properly constituted in terms of the National Code of Conduct.

Section 12B (2)(b)of the Labour Act [Chapter 28:01] (“the Act”) provides that in the absence of a registered employment code, the model code made in terms of s 101(9) shall apply. Section 12B provides as follows:

“12B DISMISSAL

………………

An employee is unfairly dismissed –

if, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or

in the absence of an employment code, the employer shall comply with the model code made in terms of s 101(9).” (underlining is for emphasis)

Section 12B (2)(b) is peremptory as to the applicability of the model law. The National Code of Conduct was made in terms of s 101(9) of the Act and constitutes the model law envisaged in s 12B (2)(b). (See Chikomba RDC v Pasipanodya 2012 (1) ZLR 577 (S)).

Section 5 of the National Code of Conduct is similarly worded as s 12B (2) as follows:

“5. Termination of contract of employment

No employer shall terminate a contract of employment with

an employee unless—

the termination is done in terms of an employment code which is registered in terms of s 101(1) of the Act; or

in the absence of the registered code of conduct mentioned in (a), the

termination in terms of the National Employment Code of Conduct provided for under these regulations;”

The composition of the disciplinary authority would therefore be dictated by the provisions of the National Code of Conduct.

It is common cause and apparent from the record of proceedings that both the appellant and the respondent were aware that the disciplinary body that conducted the disciplinary proceedings is the “disciplinary authority”. The letter of suspension dated 30 October 2018 clearly advised the appellant of two things. Firstly, that the disciplinary hearing was to be conducted before a disciplinary authority. Secondly, that the inquiry was to proceed in terms of the National Code of Conduct. It stated that:

“In accordance with the principles of natural justice and in compliance with Statutory Instrument 15 of 2006, you shall be afforded a fair hearing before the Disciplinary Authority and it shall be within your rights to:

appear in person and be represented by a fellow employee, Workers’ Committee member or a legal practitioner of your choice and at your own expense;

call witnesses to give relevant testimony in furtherance of your defence should you choose to;

make any relevant statements or tender a defence and/or present any documentary evidence in favour of your defence (right of audience).”(underlining for emphasis)

The rights set out in the letter are also similar to the rights accorded an employee in terms of s 6(4) of the National Code of Conduct.

The findings of the disciplinary authority appear in the document headed:

“MINUTES OF THE STAFF DISCIPLINARY AUTHORITY MEETING TO HEAR CHARGES LEVELED AGAINST MS SUWISAI MARUME HELD ON MONDAY, 12 NOVEMBER 2018 IN THE QUALITY ASSURANCE BOARDROOM COMMENCING AT 1000 HOURS”

Present at the hearing were Mr I. Machingambi referred to in the minutes as “Chairman of Disciplinary Authority”, Ms I. Karindira and Mrs E. Beremauro respectively referred to in the minutes as “Member of the Disciplinary Authority”. At no stage was the disciplinary authority referred to in the Minutes as the “disciplinary committee”.

On the other hand, the respondent consistently referred to the term “disciplinary authority” in its opposing affidavit. In fact the term is in capital letters as if for emphasis. The appellant used the terms disciplinary authority and disciplinary committee interchangeably in her founding affidavit and heads of argument a quo.

It is the interchange that seems to have confused the appellant when she argued and the court a quo found that s 26 of CUT Act was applicable.

Section 26 (1) of the CUT Act [Chapter 25:23] relied upon by the appellant reads as follows:

“26(1)	There shall be a Staff Disciplinary Committee which shall consist of the following members appointed by the Vice Chancellor-

A distinguished legal person, who shall be a chairman; and

A senior member of the academic and administrative staff; and

A member of the academic, administrative and technical staff of similar status to the person charged; and

A registered legal practitioner of at least five years standing who does not hold any post at the university and who is nominated annually by the Council.”

The section does not refer to a disciplinary authority but to a disciplinary committee. Neither is there any reference in the CUT Act to a disciplinary authority. Further, while the CUT Act provides for the composition of a disciplinary committee, it makes no provision for the procedure to be followed to effect such dismissal.

In terms of s 2 of the National Code of Conduct there is a distinction between a disciplinary authority and a disciplinary committee. A disciplinary authority is defined as follows:

“disciplinary authority” means a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or at a workplace;”

A disciplinary committee is defined as follows:

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

The distinction between a disciplinary authority and a disciplinary committee was highlighted in National Engineering Workers Union (NEWU) v Ntombizodwa Bube SC 01/16 where this Court, citing with approval the findings in Crispen Madziyauswa v ZFC & Anor SC 73/15 stated at p 6 that:

“The distinction between these two disciplinary authorities is highlighted in the Mandizvidza (Madziyauswa) case (supra) where this Court stated as follows in relation to the Code:

‘It seems to me that whereas the National Code has stipulated who should constitute a disciplinary committee, the composition of a disciplinary authority has been left to the discretion of the employer.

A disciplinary authority on the other hand can mean a person or a committee dealing with disciplinary matters at the workplace and its composition is not dictated by the Code of Conduct. ….Clearly the appellant is obviously mixing the two. The disciplinary authority can be constituted by a single person and it can be extended to a disciplinary committee.’

Applied to the circumstances of this case, it becomes evident that the appellant consciously set out to constitute a disciplinary authority (as opposed to a disciplinary committee), and properly exercised its discretion in choosing the size of and specific people to sit on, such disciplinary authority. It is pertinent to note in this respect that no limitation is imposed by the Code as to the number of persons who should constitute a disciplinary authority. Nor is the designation of such persons stipulated. It is all left to the employer’s discretion.

It is therefore my finding that the authority that conducted the disciplinary proceedings against the respondent was a Disciplinary Authority as defined in the Code, and that it was properly constituted.”

The above remarks apply with equal force to the present appeal. As stated earlier, the appellant was made aware from the date of suspension that it was a disciplinary authority that was to determine her fate. She therefore subjected herself to a disciplinary authority and not a disciplinary committee.

Once the appellant conceded that the CUT Act is not a registered code of conduct, that ought to have put the matter to rest. The provisions of s 12B of the Labour Act and s 5 of the National Code of Conduct being mandatory, the composition of the disciplinary authority was to be governed by the National Code of Conduct.

An attendant issue is therefore whether the CUT Act ought to take precedence over the Labour Act as it specifically relates to the respondent. That issue is resolved by reference to the letter of suspension. As stated earlier, the letter advised the appellant that the proceedings before the disciplinary authority were to be conducted in terms of the National Code of Conduct and not the CUT Act.

In any event, it is trite that the Labour Act overrides all other Acts in so far as it relates to labour matters. Section 2A of the Labour Act reads:

”1)	This Act shall prevail over any other enactment inconsistent with it.”

The issue was determined by this Court in City of Gweru v Richard Masinire SC 56/18 where Bhunu JA remarked as follows:

“It is plain that the respondent in the court a quo dismally failed to prove on a balance of probabilities that he is one of those employees expressly excluded from the application of the Act. His argument was that the Labour Act does not apply to him because his contract of employment is exclusively governed by the Urban Councils Act.

That line of argument is defective and unsustainable at law, because the Urban Councils Act is subservient to the Labour Act. In terms of s 2A of the Labour Act the Legislator has decreed it to prevail over any other enactment inconsistent with it.”

The argument by the respondent in the City of Gweru case is similar to the argument advanced by the appellant in this appeal. The CUT Act, not being a registered code of conduct and not providing for mechanisms for conducting disciplinary hearings cannot override the Labour Act and more particularly the National Code of Conduct. The court a quo therefore erred when it held that the CUT Act prevails over the Labour Act for the reason that s 26 of that Act specifically provides for the composition of a staff disciplinary committee. It also misdirected itself in holding that the disciplinary panel was not properly constituted.

The above findings of this Court dispose of the first issue for determination. Mr Madhuku conceded that the imposition of a penalty is within the discretion of the employer. Given that concession, it is an academic exercise to determine the second issue, namely, whether rationality can be a ground for review and whether the respondent’s decision to dismiss the appellant was irrational.

DISPOSITION

I find that the respondent properly terminated the appellant’s employment in terms of the National Employment Code of Conduct. This appeal therefore lacks merit and ought to be dismissed.

There being no reason to depart from the general rule that costs follow the result, the general rule shall prevail.

It is accordingly ordered as follows:

The appeal be and is hereby dismissed with costs.

BHUNU JA				I agree

CHIWESHE JA				I agree

Lovemore Madhuku Lawyers, appellant’s legal practitioners

Mushonga, Mutsvairo and Associates, respondent’s legal practitioners