Bernard Cheche v Microking Finance

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/612/2013
HARARE, 6 JUNE 2013
CASE NO LC/REV/H/32/2012
22 NOVEMBER 2013
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IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO LC/H/612/2013

HARARE, 6 JUNE 2013	&			 CASE NO LC/REV/H/32/2012

22 NOVEMBER 2013

In the matter between:-

BERNARD CHECHE					APPLICANT

Versus

MICROKING FINANCE				RESPONDENT

Before The Hounarable L Kudya	:	Judge

For the Applicant		P Hamunakwadi (Legal Practitioner)

For the Respondent		S Bhebhe (Legal Practitioner)

KUDYA J:

This is an application for a review of the disciplinary proceedings, which were done by the Respondent’s Disciplinary Committee and which led to the dismissal of the Applicant from the Respondent’s employ.

Facts of the case are that, the Applicant who was employed by the Respondent as a Branch Manager since December 1, 2010, was charged with contravening s 4 (a) and (f) of the National Code of Conduct SI 15/06 “an act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract” and “gross incompetency or inefficiency in the performance of his/her work”.

He was said to have processed loan applications in circumstances which gave rise to the conclusion that his actions were not above board in the transactions complained about. He was brought before a hearing committee which concluded that, he was guilty of the misconduct complained about. Consequently, he was dismissed from employment.

Aggrieved by the dismissal, he filed the instant review application. He takes issue with the whole process from his suspension to his dismissal. His argument is that, the whole process was flawed. In his prayer he asks the Court to declare that, the whole disciplinary process leading to his dismissal was a nullity as it did not comply with the requirements laid down in the National Code and the Labour Act.

His grounds of review are as follows:

His suspension was irregular since he was suspended by the operations manager who was his immediate superior.

In his view the operations manager was not his employer so to that extent he says that, the suspension was made by a person without the requisite powers to suspend him.

Hearing officer was biased because he did not set the date of the hearing. Instead it was set by the complainant thus giving rise to the opinion that, the hearing officer was biased. Further to that, the hearing officer raised defences on behalf of the operations manager yet the operations manager conceded to all the points which the Applicant raised at the disciplinary hearing. The hearing officer pre-determined the Applicant’s dismissal thus confirming the allegation of bias.

The provisions of the National Code were not complied with. In this respect, the hearing was conducted and not concluded within the fourteen days stipulated by the Code. That delay was fatal to the proceedings and warranted a setting aside of the disciplinary proceedings.

Dismissal was an outrageous penalty and should only have been resorted to as a penalty of last resort. On the same note, the hearing officer acted outside his powers as he had no powers to dismiss the Applicant but to merely recommend to his employer that the case warranted dismissal. The decision to dismiss or not would thus have been appropriately made by the employer then.

In response to the application, the Respondent maintained that:

The operations manager validly suspended the Respondent as she was his immediate superior and fitted within the  definition of employer set out in section 2 of the Labour Act.

The hearing officer was not biased. No such allegation was raised during the hearing and the officer was not asked to recuse himself suggesting that the Applicant was happy with him, handling the disciplinary proceedings. The fact that the hearing date was not set by him does not in any way suggest that he was biased against the applicant. The charging officer is mandated by the National Code to set the date hence it was not unusual for the date to be set by the operations manager who was the charging officer instead of the hearing officer. The Applicant raised points in limine which the hearing officer could not ignore. His disposal of same cannot be calculated to have demonstrated bias on his part. The ruling on the points in limine demonstrated that the hearing officer gave effect to the law and did not in any way show the alleged bias.

The National Code was complied with because, the six day delay of the conclusion of the matter was occasioned by the postponement of the matter at the Applicant’s instance when he raised the points in limine which the hearing officer had to dispose of first before dealing with the merits of the cases. If the Applicant was of the view that the time lines were being flouted he should have approached a labour officer to exercise his powers in terms of s 101 (6) of the Act. The Applicant was afforded a fair hearing since all the tenets of a fair hearing were observed in his case. The Applicant did not explain why he failed to refer the matter to a labour officer if he was convinced that the Respondent panel was exceeding the statutory time limits for concluding the hearing.

Evidence led on the matter was overwhelming.

If indeed the matter was beset with the technical niceties complained of that would not entitle the Applicant to reinstatement but at most to a re-hearing of the matter in a procedurally correct manner.

Dismissal was the appropriate penalty given the gravity of the misconduct complained about.

At the time of the hearing of the review application, counsels for both parties filed with the Court succinct heads of arguments supporting their positions. It is not this Court’s intention to restate these submissions as they are apparent on the face of the record.

The only major issue falling for decision on this matter is whether the Applicant has demonstrated that the process leading to his dismissal was indeed flawed to the extent that the flaws rendered his dismissal a nullity. Each of the grounds of review will be addressed in turn to ascertain what the correct position is on the matter.

Point in limine

Before delving into the merits of the review, it is pertinent that the point in limine raised by the Respondent be disposed of first. The basic argument raised was that the relief sought by the Applicant is in the form of a declaratory order which is beyond the Labour court’s jurisdiction. In response, the Applicant conceded that the first paragraph of his prayer indeed impresses upon one that he is seeking a declaratory order which is beyond this Court’s jurisdiction.

Being this as it is, however, the Applicant goes further to argue that, the subsequent paragraphs of the relief he is seeking are within the ambit of the powers of this Court. He to that extent argues that, even in the absence of the declaratory paragraph his quest for relief still stands. In the same breath, the applicant argues that, since the point in limine was omitted in the Respondent’s opposing affidavit, it means that it can not be raised at this stage.

Whilst it is trite that, an application stands/falls on the basis of the affidavit deposed to in its respect, it is also note worthy that the law allows points in limine in particular points of law to be raised at any stage of the proceedings. Since the point in limine is on jurisdiction which is a legal point, the court is of the view that there is nothing amiss with it being raised at the stage at which it has been raised.

On the merits of that point, it is also worth noting the concessions made by the Applicant vis a declaratory order in relation to the Labour Court powers. It is clear that the first paragraph of the Applicant’s prayer is ill founded and it cannot stand as it is seeking what is beyond this Court’s jurisdiction. However, the rest of the body of the prayer being with merit can stand as it is in sync with relief which is permissible to be obtained from this Court in such proceedings. The point in limine succeeds to the extent that the paragraph dealing with declaratory relief is struck off and the rest of the paragraphs stands vis the prayer sought by the Applicant.

Turning to the merits of the main review application, the Court made the observations discussed hereunder:

Suspension

A reading of s 2 of the Labour Act shows that the term employer can be used to encompass one’s manager or one’s superior who has authority over the working of the subordinate. In the instant case, the suspension order was made by the Applicant’s supervisor. The Court is satisfied that the supervisor fitted within the definition of employer. In that regard there was nothing irregular on the suspension. This review ground being without merit should fail.

Bias

The test for bias is set within the case of Jerry Musarira vs Anglo American Company SC 53/05. Applying the principles in the above case to the facts of the instant case, it is worth noting that the basis for the allegation of bias is that the hearing officer did not set the date of the hearing and that the hearing officer attended to the points in limine raised by the Applicant which the operations manager agreed with.

As correctly observed by the Respondent, there was nothing irregular from the hearing officer dealing with the points in limine raised before him. He sat as a quasi judicial officer and it was incumbent upon him to dispose of the points raised by the Applicant. In the Court’s view dealing with those points does not in any way demonstrate bias as the Applicant would have the Court believe. There was also nothing irregular in the charging officer setting the hearing date. The Court is satisfied that the ground also lacks merit and it should fail.

Delay

As correctly pointed out by the Respondent nothing stopped the Applicant from referring the matter to a labour officer if he was of the view that the set time limits had been exceeded. In any event the explanation that the limits were exceeded because of the need to deal with the points in limine raised is a merited excuse. This ground also lacking in merit should fail.

On the same note, any delay on the matter would not entitle one to reinstatement. In any event it is to all procedural irregularities which vitiate proceedings See Tichawana Nyahuma vs Barclays Bank 2000(2) ZLR 445. Instant case facts do not show that the delay prejudiced the Applicant in any manner. It is therefore futile to rely on that ground to seek re-instatement.

Dismissal

The law is settled that penalty is at the discretion of the employer. See Circle Cement vs Chipo Nyawasha SC 60-03

In instant case, the employer formulated the impression that the irregular processing of the loan applications jeopardised their operations and that could not be taken lightly given the nature of the business that the Respondent was in. The Court thus finds nothing irregular from the decision of the employer to dismiss given the facts of the matter.

The argument that the pronouncement of the dismissal had to be done by the employer and not the hearing officer whilst merited fails the test of prejudice on the Applicant’s part. To that extent the anomaly can be condoned. In the result the review application fails in all respects.

IT IS ORDERED THAT:

The application for review being without merit, it be and is hereby dismissed with no order as to costs. The Applicant’s dismissal is consequently confirmed.

L.KUDYA

JUDGE – LABOUR COURT

Mugiya and Macharaga Law Chambers - Applicant’s Legal Practitioners

Kantor and Immerman – Respondent’s Legal Practitioners