Archibald Taurayi Chimuka v Varichem Pharmaceuticals (Pvt) Ltd

### Preamble
REPORTABLE
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.
LC/H/57/2020
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REPORTABLE

IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/57/2020

HARARE, 12 FEBRUARY, 2020		               CASE NO. LC/H/REV/117/19

AND 28 FEBRURY, 2020

ARCHIBOLD TAURAYI CHIMUKA					Applicant

VARICHEM PHARMACEUTICALS (PVT) LTD			Respondent

Before The Honorable G Musariri, Judge:

For Applicant:				Mr J.M. Mambara, Attorney

For Respondent:				Ms R. Mabwe, Advocate and

Mr C. Mucheche, Attorney

MUSARIRI J:

Applicant applied to this Court for the review of his dismissal from employment by Respondent. Respondent opposed the application. There were three (3) grounds of appeal. During oral argument in this Court Applicant abandoned two(2) of the grounds. The remaining ground read declaimed as follows;

“Adjudicating Authority improperly constituted and therefore lacked jurisdiction”.

The ground was further developed in Applicant’s Founding Affidavit thus;

“6. I am a director of the Respondent and I was also employed as the Regulatory Affairs Director. As can be gleaned from Annexure ‘A’ my name appears along directors on Respondent’s letterhead.

7. At the start of the hearing I was introduced to the Disciplinary Committee. It comprised of Mr Choguya- Marketing Manager, Chairing, Mr PT. Mhiko –

Production Manager – member and Mrs H. Mutakwa – purchasing and Materials Manager, member.

8. Through my counsel, I immediately objected to the composition of the Disciplinary Committee seeing that it was made up of my juniors. The Chairman of the Committee advised that all members reported directly to the Managing Director and on that basis are applicant’s peers. Clearly the Disciplinary Committee members are the applicants’ subordinates or juniors. They are simply managers. Worse still they (sic) drove their mandate from the Managing Director and not then board of directors they were serving at the pleasure of the Managing Director”.

Applicant argued that the Disciplinary Committee was composed of his juniors. Therefore it was improperly constituted. As such it lacked jurisdiction or power to preside over his disciplinary hearing.

It is common cause that Applicant was tried in terms of the national employment code which is embodied in the Statutory Instrument No. 15 of 2006. No issues arose over applicability of that code. Rather the question is whether Respondent properly applied the terms of the code. The code does not specify who can try who in the work place. However it mentions a “disciplinary committee” and also a “disciplinary authority”. The former comprises an equal number of employer and employee representatives. The latter is a person or persons appointed by the employer. The code does not prohibit juniors from sitting in either entity where the putative offender is their senior. Accordingly I find no support for Applicant’s case in the wording of the code.

I am fortified in my view by the dicta of Gwanzura DCJ in the matter of

NEWU  v DUBE SC 01/16 where she ruled that, at page 7:

“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 that 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 (national) Code, and that it was properly constituted.”

My underlining is for emphasis.

These wise words apply fully to the circumstances of this case. Respondent clearly intended to have a Disciplinary Authority to try Applicant and others of similar rank. Otherwise it would have constituted a disciplinary committee which is required to comprise an equal number of employer and employee representatives. Respondent constituted a body comprised of managerial employees. Despite what he thought of his

status, Applicant was employed as a managerial employee. He was therefore tried by a disciplinary authority comprised of his peers, contrary to his claims. Applicant quoted a plethora of cases to support his case. I am not persuaded that they support his position. Further and in any they are overruled by the NEWU case to the extent of their inconsistence therewith.

There being no other grounds for review perforce the application should be dismissed.

Wherefore it is ordered that,

1.	The application for review be and is hereby dismissed; and

2.	Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E