Andrew Mashiri v Delta Beverages Private Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/MS/6/2020
MASVINGO, 18 MARCH 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE    JUDGEMENT NO. LC/MS/6/2020

MASVINGO, 18 MARCH 2020                      CASE NO. LC/MS/REV/05/19

AND 19 JUNE 2020

In the matter between:-

ANDREW MASHIRI

And

DELTA BEVERAGES PRIVATE LIMITED

Before Honourable B.T. Chivizhe, Judge

For Applicant		 Mr D. Banda (Trade Unionist)

For Respondent		 Mr J. J. Moyo (Legal Practitioner)

CHIVIZHE, J:

This is an application for review of the disciplinary proceedings undertaken by the Respondent at three levels of Respondent Disciplinary Structure as provided in the relevant Code of Conduct, being Delta Beverages Employment Code of Conduct (2003). The Applicant in his prayer seeks for an order to be granted in the following terms;

“1.	Applicant’s application for review is granted

2.	The Applicant is reinstated (without loss of wages and benefits)

3.	The misconduct proceedings instituted in the 1st, 2nd and 3rd Hearing against the Applicant together with preference of charges, determination and penalty be and is hereby set aside as null and void.

4.	The matter being remitted back to the Respondent to correct all procedural irregularities and deal with the matter properly.

5.	The Respondent to pay the costs of application.”

The application is opposed by the Respondent.

The material background facts to the matter are as follows. The Applicant was employed by Respondent initially as a packer. He was later elevated to the post of Depot Controller at DBC Chipinge. On the 25th of September the Respondent levelled two charges of misconduct against the Applicant i.e. neglect of duty. The allegations were that the Applicant had in his capacity as Depot Controller neglected to perform his duties when

(1) a Foreign POS  machine was used;

(2) he failed to investigate and record faulty equipment and

(3) he failed to carry out certain reconciliations on 7 August 2019.

The Applicant was summoned to attend the initial hearing at immediate Superior level on the 30th September. After a full hearing in which the Respondent led evidence from several witnesses, the Applicant was found guilty on both charges. A penalty of dismissal from employment was subsequently imposed on him. His appeals to the Head of Department and the Work’s Council were both unsuccessful. Dissatisfied with the determination by the Respondent Disciplinary functionaries the Applicant noted an appeal as well as an application for review. The appeal which has been filed under a different case number is yet to be determined. This court is only seized with the application for review.

PRELIMINARY POINTS

At the commencement of the hearing the Applicant raised two preliminary points where he believed the court was duty bound to address initially. The first was one which he believed was a point of law and therefore one which he was entitled to raise at any stage of proceedings including the proceedings before this court. The Applicant relied for this proposition on the authority of Shadreck Hlahla vs OK Zimbabwe SC 64/04 and Interfresh Limited vs Ryan Dzapata SC 58/05.

The point of law was that the Disciplinary Committees set up by Respondent at the three levels were not in accordance with the provisions of the relevant Code of Conduct i.e. Delta Beverages Employment Code of Conduct (2003). It was Applicant submission that whereas clause 11.5 of the Code provided that a quorum for each of the three Disciplinary Committees is made up of six people i.e. 50% from employee and 50% from employer representatives. In this case the Respondent, had on the third level hearing 7 (seven) people sitting in the committee. It was Applicant prayer that based on that point alone the court should find that the disciplinary proceedings having been convened outside the provisions of the Code of Conduct were irregular proceedings and the court could therefore set aside the disciplinary proceedings. The second preliminary point was that the Respondent having failed to file its Notice of Opposition and Heads of Argument on time the Respondent was technically barred before the court. The court therefore could proceed to determine the manner on the basis of Rule 20(2) (b) of the Labour Court Rules, 2017.

The Respondent in reply, submitted through Counsel that its Notice of Response had been filed timeously. The Applicant having been filed on 19th December, 2019 the Notice of Response had been filed on 5th of January, 2020. The Respondent counsel sought for an adjournment to enable him to obtain the proof of service. On resumption of the hearing, the Respondent counsel having tendered in evidence the proof of service of the Notice of Response which indicated that the delay was in fact of one day, the Applicant being no longer opposed to the granting of condonation in such circumstances, the court duly extended condonation to the Respondent for the late filing of the Notice of Response and the Head of Arguments. The Notice of Response and Heads of Arguments were deemed properly filed before the Court and were therefore made part of the record.

On the first preliminary point the Respondent Counsel submitted that the Applicant was improperly raising a point of law in review proceedings. The proceedings before the court were not appeal proceedings. The Applicant could not therefore properly raise a point of law in such proceedings. Assuming however the point was properly raised it was Respondent’s position, that, in any event, the point was meritless. There had been no attempt by Applicant to indicate which of the Disciplinary Committees had exceeded the quorum as provided for in the Code of Conduct. On this point the Respondent prayed for the dismissal of the first preliminary point which had been taken as a point of law.

The first point in limine clearly stands to be dismissed. The court fully agrees with Respondent submission. The matter that has been placed before the court is an application for review filed in terms of section 92EE of the Labour Act [Cap 28:01]. Being an application for review it is clear that the court is only empowered to review the proceedings and decisions of any inferior tribunals. See Zimasco (Pvt) Ltd vs Marikano 2014(1) ZLR 1(5) and Joseph Lunga & Ors vs Reserve Bank of Zimbabwe SC 1/17. The court clearly has no powers to address the issue of law as taken by the Applicant in regards the improper composition of The Disciplinary Committees. See for an example, Unifreight Limited vs Lighton Madembo SC 6/18 where the Supreme Court had an occasion to address in an appeal the issue of composition of Disciplinary Committee. It must follow therefore that the point of law raised by Applicant has been improperly raised in review proceedings. It ought therefore to be dismissed as I hereby do.

GROUNDS FOR REVIEW

The Applicant has raised three grounds for review, I shall address each in turn. In the first ground the Applicant submits that he was not granted an opportunity to present his defence. He submitted, through his Heads of Argument that the principles of natural justice were not followed by the Disciplinary Committee at the initial hearing more specifically he was not given a chance to lay out his defence and then lead evidence in rebuttal.

He referred to a South African authority in Semenya and Ors vs Commissioner of Conciliation, Mediation and Arbitration 2006 271 LT 27 LAC. The Applicant also submits that the Chairman of the initial hearing by also failing to grant him an opportunity to give his defence was also clearly biased. The Applicant relied on another South African authority in Nufaswa OBO Matiti vs Sveno Crafe EC 2006 JOH18717 BCFM.

The Respondent in its Notice of Opposition disputed the assertion made by the Applicant that he was denied the opportunity to present his defence or to lead evidence in rebuttal of the charge. The record according to Respondent clearly showed in the minutes of the initial hearing at Immediate Superior Level that Applicant had been informed of the charges first. After the charges were read including the details of the allegations Applicant had been invited to present his defence. He was thereafter subjected to some questioning by the committee members. On this basis the Respondent prayer is for dismissal of the ground as unmerited.

The court’s finding is that this ground of review clearly cannot succeed. Clause 11.6(c) of the relevant Code of Conduct i.e. the Delta Beverages Code of Conduct (2003) outlines the procedures to be followed in conducting hearing at immediate Supervisor level. Clause 11.6(c) outlines the hearing at the Immediate Superior level as follows :-

6 (c) in conducting the hearing referred to in 11.6 (b) the immediate superior/supervisor

- shall ensure that the employee is afforded the opportunity to be heard and person or through his representatives and also to defend himself against the allegations raised:

- shall call witnesses of both the employee and management where necessary to give evidence as required/requested.

The record of proceedings clearly shows on page 2 of the Minutes of the initial hearing at Immediate Superior level that the Chairman read out the charges as well as the details pertaining to charges. The record also shows the written report compiled by Applicant in response to the charges. The Applicant was therefore clearly granted an opportunity to outline his defence by explaining what really transpired on the day. The record further shows that Applicant did present his explanation of the events and his defence to the charge on the date of hearing. The Applicant was thereafter subjected to questioning by the committee members on issues arising from this submission. The Applicant has however also alleged bias on the part of the Chairman on the basis of his decision to deny Applicant an opportunity to lead evidence in rebuttal. Although the issue of bias was raised it was however not established before me.

It is clear on the basis of the record that applicant was indeed granted an opportunity to present his defence outline. The Appellant however also raised a third issue under the first ground of review that he was denied an opportunity to lead evidence in rebuttal of the charge. As this issue is tied to the second ground it shall be addressed under that ground. In the circumstances the first ground of review clearly cannot stand. It is hereby dismissed.

The second ground of review raised is that Applicant having raised a preliminary issue or a point in limine the Disciplinary Committee committed a procedural irregularity when it opted to ignore the point in limine to proceed with the hearing. The Applicant submission is that a point in limine being a point that is capable of disposing a matter in the event of the court tribunal upholding it the Disciplinary Committee was duty bound to address the point first. The Applicant submission is where a Disciplinary Committee fails to address point in limine this has the effect of nullifying proceedings. He referred the case of Gweru Water Workers Committee Vs City of Gweru SC 59/2013. On this basis the Applicant’s prayer is that the disciplinary proceedings ought to be set aside.

The Respondent position as presented in its heads and oral argument is that the Applicant did not raise a point in limine in the legal sense. He instead raised a procedural issue, being his suggestion that the disciplinary proceedings ought to be held in Chipinge in order to enable his witnesses to attend the hearing. The Respondent’s further submission is the point raised by Applicant having been raised when the hearing was already underway in Chiredzi with Applicant’s full participation the issue was improperly raised at that stage.

The record of proceedings clearly shows that the Applicant did raise two preliminary issues at the initial hearing. The first issue related to the request he had previously made to the Respondent for the hearing to be held in Chipinge in order to enable his key witnesses who included staff from CABS and a Mr Herama to attend the hearing. The second preliminary issue was that of an unfair splitting of charges. The Applicant was alleging that Respondent had unfairly raised four counts of misconduct arising from one act. The Chairman in his ruling made the following observation;

“VG- Preliminary points are not for discussion anyway; you submit for consideration during deliberations. You do now get the response, but its good that you raised them so that they are recorded in the minutes”

It is apparent from the Chairman’s ruling that he/she failed to appreciate the legal issues that had been raised by the Applicant. A point in limine is usually raised on a point of law or on the procedure. It is incumbent upon the adjudicating authority before which a point in limine is taken to first determine the point before addressing the merits of the matter. This is because point in limine are normally taken as an interlocutory application. The adjudicating authority before which point in limine is taken should not therefore proceed to determine the matter on the merits without first determining the interlocutory application. See Heywood Investments (Private) Limited t\a GDC Hauliers vs Pharaoh Zakeyo SC 207/11 and Grain Marketing Board vs Martin Muchero SC59/07.

The Respondent has argued that the nature of the first point raised was actually not a point in limine in the legal sense rather Applicant was only suggesting to the Disciplinary Committee for a change of venue. The argument by Respondent does not find favour with the court. A point in limine can be taken in relation firstly to an issue of law i.e. a point of law which if upheld may result in the curtailment of proceedings. A point in limine can however also be raised in relation to procedure.

The issue that Applicant was raising related to his fundamental right as an accused person to be able to summon witnesses to the trial. The Code of Conduct in para 11.6(a) to (c) provided procedural guarantees to ensure an employee is granted a fair hearing including being allowed to call his witnesses to give evidence. The record shows that Applicant had previously written before the hearing date i.e. on September 26, 2019 requesting that the hearing be conducted in Chipinge to enable the attendance of his key witnesses who were not employees of Delta. The record does not show if the communication was responded to. On the date of hearing the Applicant again raised the same issue. Whilst the Applicant did not raise the point as an issue of law he clearly raised it as an issue of procedure. The relevant Code of Conduct clearly guaranteed his right to summon his witnesses to the trial. The committee was duty bound to determine that point as well as the second point in limine which was clearly a point of law, that of an unfair splitting of charges. By so failing to consider and determine the two points in limine before addressing the merits the committee committed a procedural irregularity which was sufficient to vitiate the proceedings as it was calculated to prejudice the Applicant.

Having arrived at this conclusion it shall not be necessary for this court to determine the third ground of review. It must follow that the application for review succeeds.

It is accordingly ordered as follows;

The disciplinary proceedings convened by the Respondent at the initial and the subsequent levels be and are hereby set aside.

The Respondent shall pay costs on the ordinary scale.

Calderwood Bryce Hendrie & Partners, respondent’s legal practitioners