Aubrey Tinaye Dube v C Steinweg Bridge Zimbabwe (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/197/2023
HARARE, 21 MARCH 2023 & 10 JULY 2023
CASE NO LC/H/REV/05/21
In the matter between:-
AUBREY TINAYE DUBE
APPLICANT
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AUBREY TINAYE DUBE

C STEINWEG BRIDGE
ZIMBABWE (PRIVATE) LIMITED

Before the Honourable Kudya J

For the Applicant
Mahuni (Legal Practitioner)
For the Respondent
Magogo (Legal Practitioner)

KUDYA, J:

This is an application for the review of the decision of the respondent’s employer’s decision to dismiss the applicant employee from employment following allegations of misconduct against the applicant employee.

At the onset of the application 5 points in limine were raised. These shall be addressed before the merits of the review are addressed. The 5 points were in summary to the following effect.

1. There is no review application since it cited section 92 E(1) of the Labour Act instead of a section 92 EE(1).
2. Grounds 1 and 3 are invalid grounds of review as they do not set out the clear basis for review.
3. There is no challenge of internal appeal proceedings so the review is defective to that extent
4. New grounds of review were introduced. They were not raised at the internal appeal structures so could not be raised for the first time on review at the Labour Court.


5. Reinstatement relief which is sought by the applicant is incompetent relief. Each of the point is addressed below:

**Point 1**

Applicant concedes that he ill cited the review section by citing section 92 E(1) instead of Section 92 EE(1) of the Labour Court. He however reasons that such an error is a technical one which does not go to the root of the case. It is noteworthy that indeed the wrong section was cited but it is apparent from the founding affidavit that the applicant was seeking review on account of the reference to rule 20 of the Labour Court rules. It is settled that for a procedural irregularity to have effect prejudice for f lawing from it should be demonstrated. See **Nyahuma v Barclays SC 67-05**. It is the court’s view that the omission of the second E does not render the application fatally defective. It is clear from the papers that what applicant is seeking is a review of the matter albeit though he erroneously cited section 92E(1). The point should therefore fail.

**Point 2**

A reading of grounds 1 and 3 speak clearly to the fact that applicant’s misgiving is that he was not afforded a chance to mitigate and that the disciplinary committee was not properly constituted. It is the court’s view that such argument falls within the purview of reviewable issues. The court is thus satisfied that no cogent point has been made out in this regard. The point should therefore fail.

**Point 3**

The applicant stated clearly that the procedural irregularity that he was not happy with what happened at the disciplinary committee level and not the appellate. Nothing meaningful would have been achieved by impugning the procedure of the appeals committee which he did not have issues with. The point is also lacking in merit and should fail.

**Point 4**

The respondent argues that new grounds were introduced. It need be noted that the grounds complained of are mainly review issues which the appeal structure was not empowered to entertain. In that regard there was nothing amiss in such being raised for the first time on review in the Labour Court. The point also being without foundation should fail.


Point 5

The last point is about reinstatement relief. A reading of the most recent Supreme Court case of **ZUPCCO v Mashinge SC-21-21** shows that reinstatement relief is competent on review. In that regard this point is also ill taken and should fail.

In the ultimate all the points *in limine* being without foundation they be and are hereby dismissed for lack of merit. Turning to the review grounds these are discussed below;

Ground 1

It is settled that before penalty is imposed it is imperative that the employee be given a chance to submit on mitigation. See case of **Toyota Zimbabwe v Posi 2008(1) ZLR 173(5)**. In the case at hand the simultaneous pronouncement of the verdict and the penalty shows that such a right to mitigation was breached. The ground is therefore with substance and should succeed.

Ground 2

It is settled that bias should not be fanciful or imagined but should be gleaned from how a matter was handled. See case of **Garwe v PSC SC-62-17**. In the case at hand the applicant is of the view that the respondent had predetermined the matter by the simultaneous pronouncement of the verdict and the penalty. As indicated on one above it was irregular for the committee to dispose of the matter in that manner. The impression indeed created was that the matter had been concluded already hence applicant was at large to infer bias from that conduct. The ground being merited should also succeed.

Ground 3

As regards the composition of the committee the respondent seems to concede the point. This is so given its argument about reference to different Codes of conducts. The conclusion to be drawn from the reference to different codes ultimately resulted in the matter being decided contrary to the tenets of procedural justice. The ground being with foundation should also succeed.

Ground 4

Applicant argues that he should have had the chance to cross examine the authors of the emails and recordings which were used to found his guilt. Respondent in response says applicant seemed to have agreed with the emails and recordings to the extent that respondent did not deem it necessary to call the makers of the emails etc. It is settled that justice must not only be done but must be seen to be done. In this regard it was imperative for the witnesses to avail themselves so that if applicant had issues with their evidence that could be gleaned from the cross examination. In the ultimate the ground is well founded and should succeed.

Having concluded that there were gross irregularities discussed above the question remains whether that entitles applicant to reinstatement. It is settled that procedural irregularities have to be put right. **Nyahuma v Barclays (supra)**. It is also settled that procedural irregularities should not be used to evade the conclusion of a matter on its merits. See **Air Zimbabwe v Mnensa SC 89-04**. The court is of the view that the irregularities that abound in the matter should be put right. In that regard the charge under the correct code has to be preferred and the applicant’s right to be heard should be observed. The application for review succeeds to the extent that the matter should be dealt with afresh and properly

**IT IS ORDERED THAT**

Review application being merited it be and hereby succeeds. The matter is remitted to be dealt with *denovo* in a procedurally correct manner. Each party to bear own costs.

Scanlen and Holderness, Applicant’s Legal Practitioners

Mafongoya and Matapura, Respondent’s Legal Practitioners
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