Benard Mizeki College v S Muhwavi & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/203/2016
HARARE, 10 JULY 2015 &
CASE NO LC/H/601/2013
8 APRIL 2016
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/203/2016

HARARE, 10 JULY 2015 &			                 CASE NO LC/H/601/2013

8 APRIL 2016

In the matter between

BENARD MIZEKI COLLEGE					    APPELLANT

Versus

S MUHWAVI							   1ST RESPONDENT

And

NECWEI APPEALS COMMITTEE				   2ND RESPONDENT

Before the Honourable L F Kudya J

For the Appellant	S D Maruza  (Legal Practitioner)

For the Respondent     Ms S Chimombe  (Trade Unionist)

KUDYA J:

The appellant employer appealed against the decision of the National Employment Council for the Welfare and Educational Institutions Appeals Committee. The NEC had set aside the respondent employee’s dismissal and reinstated him with full pay and benefits to the appellant employer’s employ. It is this appeal which is the subject of this judgment.

The background to the matter is that the employee who was in the appellant’s employ as a hostel aide was brought before the appellant’s disciplinary committee to answer charges of failing to obey lawful instructions and theft of students money in Kapuya hostel. It was said that students missed their money after the respondent had come back from leave and had indicated that he knew where they kept their money so even if they refused to give him some he knew where to get it from.

His superior was asked to serve him with the charge sheet and notification to attend the disciplinary process on two dates respectively. Despite it being explained to him why he had to sign the said documents he refused to sign the same. This gave rise to charges of wilful disobedience to lawful orders. He was found guilty on the wilful disobedience charge and dismissed from employment. There was said to be paucity of evidence on the theft charge since there were other persons other than him who could have helped themselves to the money which allegedly went missing. It was thus recommended that on the theft charge he be reassigned to another hostel.

He appealed to the headmaster who upheld the guilty verdict and the dismissal penalty. The matter ended up at the NEC appeals committee desk where the verdict and penalty were set aside. This did not go down well with the school and that drove it to file the appeal in the Labour Court which appeal is the subject of this judgment.

The appeal grounds which the school relied on were:

NEC Appeals Committee misdirected itself at law by deciding the matter without affording the appellant an opportunity to be heard.

NEC Appeals Committee failed to discharge its duty by not verifying whether the appellant had been properly served with the grounds of appeal and the heads of argument. It elaborated on its appeal grounds in the following terms.

NEC Appeals Committee lacked jurisdiction to entertain the appeal on account of the fact that the employee had approached it on appeal outside the three day period stipulated in the Code of Conduct. Such rendered the appeal proceedings void at outset as they were contrary to the Code provisions.

NEC Appeals Committee denied the employer the right to be heard because it concluded the matter on the basis of an inadequate appeals record and did not satisfy itself whether indeed the employer had been served with the employee’s appeal grounds. The NEC should not have assumed that the employer did not file any submissions.

NEC Appeals Committee erred to determine the matter without written representations or allow the employer to make oral submissions. Such was a fatal procedural irregularity which NEC Appeals Committee determination could not recover from.

Right to be heard is fundamental right to be jealously guarded. The employee did not serve employer with appeal grounds hence the employee could not file submissions or response.  When the employer went to make oral submissions it was denied that chance and appeals committee said would decide the matter on the basis of the employee’s submissions only. That was a gross miscarriage of justice

NEC Appeals Committee abused its authority by unfairly and irrationally refusing the employer chance to present its case. Such gross abuse renders the decision null and void.

NEC Appeals Committee decision defied logic and common sense so it would be contrary to public policy to uphold it because it disregarded its own Code for no apparent reasons so made award contrary to logic.

In the result the appellant employer prayed that the NEC Appeals Committee decision be set aside with cost and that the matter be remitted to NEC DA Mashonaland for conciliation in terms of the Act.

In response to the appeal the respondent maintained that;

The appellant’s appeal grounds do not raise questions of law as per section 98 (10) of the Act because:

Argument about denial of right to be heard is procedural irregularity to be addressed by review.

Same applied to the second appeal ground.

In the result the respondent prayed that the appeal be struck off the roll for want of compliance with section 98 (1) of the Act.

It is settled law that the appeal is an attack on the substantive component of an order whereas review attacks the process leading to the order in question. See Rules 15 and 16 Labour Court Rules. Where the wrong procedure is adopted the party using the wrong procedure cannot expect relief.

This is so in particular where the company is legally represented and the representatives are expected to be conversant with how accurate pleadings are supposed to be drawn up.

A reading of the appeal grounds despite their density speaks clearly to an attack on the process leading to the decision to set aside the employee’s guilty verdict and dismissal. That clearly is challenge to be done by way of review and not appeal. The court observed that there are various arguments about the fact that the three day rule was not observed and that the school was not given a chance to present its case. All these issues are clearly procedural and cannot be addressed by way of appeal. The court did not deem it necessary to delve into each and every individual averment in the appeal grounds as the appeal is indeed improperly before the court. Such an exercise would not serve any meaningful purpose.

The court is satisfied that all appeal grounds are bad at law as they seek to raise review issues. They should thus be struck off as failing to meet the proper standards of an appeal.

IT IS ORDERED THAT

The appeal being bad at law in so far as it raises review issues only, it be and is hereby struck off the roll with costs.

Chingore & Associates, appellant’s legal practitioners