Allan Nkiwane v Gateway Primary School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/202/24
HARARE, 20 MARCH, 2024 & 30 APRIL 2024
CASE NO LC/H/211/18
ALLAN NKIWANE
APPELLANT
GATEWAY PRIMARY SCHOOL
RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 20 MARCH, 2024 & 30 APRIL 2024

ALLAN NKIWANE

GATEWAY PRIMARY SCHOOL

Before the Honourable G. Musariri, Judge:

For Appellant - Ms K Munyewende, Attorney

For Respondent - Mr P Dube, Attorney

MUSARIRI, J:

On the 27th August 2018 at Harare, Designated Agent (DA) M Manyika made a determination. He dismissed appellant’s (employee) claim of unfair termination of employment by respondent (employer). The employee then appealed the determination to this Court in terms of Section 92D of the Labour Act Chapter 28:01. The employer opposed the appeal. The grounds of appeal were triplet thus:

“1. The National Employment Council for Welfare and Educational Institutions grossly misdirected itself when it found as a fact that there were procedural irregularities but proceeded to uphold the decision of the disciplinary committee without hearing the matter itself.

2. The National Employment Council Welfare and Educational Institutions grossly erred by not considering the fact the reasons for the dismissal of the Appellant were not founded on the changes preferred against him and worse still were not contained in the Code of Conduct.

3. The National Employment Council Welfare and Educational Institutions erred by not finding that the involvement of Mrs Mutsaka on the Disciplinary Committee was unfair and that the disciplinary proceedings ought to have been set aside on that score alone.”

The Designated Agent (D.A.) dealt with irregularities in his determination as follows:

“9. While I accept there were some irregularities, it is in my view that even though the National Employment Council Welfare and Educational Institutions code of conduct was not explicitly cited, its provisions were substantially adhered to. Investigations were conducted and the *audi alterum* rule was observed. It appears respondent fulfilled the principles of natural justice. In addition to that, it is settled principle that labour matters should not be determined on technicalities alone.”

That begs the question: what were the irregularities? This included lack of a precise charge based on the applicable Code of Conduct; apparent participation of the investigator in deliberations of the disciplinary committee and reasons for ruling at variance with the allegations against the employee.

There was no formal charge put to the employee. However, the minutes of the “disciplinary hearing” set out the case against him as follows:

“The three allegations are as follows:


1. That Mr Nkiwane allowed his class (7m), to mark papers from the other two grade 7 classes (71 and 75).

2. That Mr Nkiwane was conducting extra lessons with some compensation.

3. That Mr Nkiwane had gone through the questions of a Cluster Content Paper with his class before the paper was written.”

The Code of Conduct defines specific offences from its Clause 3.1 up to 3.19. It is not clear which of the defined offences the above allegations were meant to underpin. The termination letter dated 1 August 2016 stated that:

“The committee found in 1 and 2 that there was credible evidence that you carried out the actions described. This you categorically deny.

In light of the above we believe that you are unable to sustain a credible Christian testimony in from the class of children that have been entrusted to your care. Accordingly, you are being given notice that as of 1 January 2017, you will no longer be employed by the Gateway School Trust.”

Assuming, **ad arguendo**, that the allegations constitute a cognizable offence, the verdict given is unsatisfactory. It does not give full reasons for the finding of guilt. It does not say which witness/es were believed and what they said. It does not expatiate on why those witnesses were believed in face of the employee’s categorical denial. Such parse and perfunctory reasons cannot amount to valid reasons for the verdict.

See

**PG Industries v Bvekerwa** 2016 (2) ZLR 14(5)

Per GOWORA JCC at P17B

“A court is obliged to give reasons for its judgment to inform the parties on its reasons for the decision. A failure to give reasons is an irregularity which has the effect of vitiating the proceedings.”


Further assuming, **ad arguendo**, that there was a proper hearing, the role played by Mrs Mutsaka (SM) therein was problematic. The minutes of the hearing on 3 August 2016 begin as follows:

“Present  Mr Gwaka (Chair-LG), Mrs Mutsaka (SM), Mrs Betani (GB), Mr Hulley (AH) and Mr Nkiwane (ANK)

LG  opened in prayer

LG  expressed that the meeting was to investigate allegations made in the reports submitted by SM in order for the panel to make a report.”

It is clear from the above that Mutsaka (SM) was the Complainant. However, the minutes of the follow up hearing stated that:

“Present  Mr Gwaka (Chair-LG), Mrs Mutsaka (SM), Mrs Betani (GB), Mr Hulley (AH)

LG, SM, AH and GB (the panel), met outside ANK’s classroom and handed him the questionnaire below to confirm that he would be happy for us to ask his class to answer it. He was happy for us to proceed.”

This excerpt shows that Mutsaka sat on the panel which deliberated on the allegations. She was determining whether her allegations as complainant were proved by the hearing. Therefore, she was a judge in her own cause which is a gross irregularity. Faced with such irregularity the DA ought to have set aside the proceedings. The argument that irregularities should not be dealt with on appeal to this Court does not avail. This Court is seized with the correctness or otherwise of the DA’s ruling. That process necessarily entails a consideration of the irregularities in the “hearing.”


Conclusion

It is concluded that the appeal abounds with merit and thus ought to succeed.

Wherefore it is ordered that,

1. The appeal be and is hereby allowed;

2. The determination by Designated Agent M Manyika dated 27 August 2018 is set aside and substituted as follows:

   a) “The Claimant’s claim for unfair termination of employment is hereby granted and;

   b) The Respondent shall reinstate the Claimant without loss of salary and benefits; or

   c) The Respondent shall pay the Claimant damages in lieu of reinstatement in an amount either agreed by the parties or assessed by the Designated Agent;” and

3. Each party shall bear its own costs.

G. MUSARIRI
J-U-D-G-E
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