Canaan Jack v Freda Rebecca Gold Mine Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/212/2021
HARARE, 12 OCTOBER 2021
CASE NO. LC/H/238/21
JUDGMENT NO. LC/H/212/2021
CASE NO LC/H/238/21
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT LC/H/212/2021

HARARE, 12 OCTOBER 2021			CASE NO. LC/H/238/21

AND 05 NOVEMBER 2021

CANAAN JACK			  			            	   Applicant

FREDA REBECCA GOLD 		 		  	                       Respondent

MINE LIMITED

Before Honourable G. Musariri, Judge

For Applicant		- 	Mr C. Chakawa & Ms V. Vhera, Attorneys

For Respondent     	-	Mr R. Moyo, Attorney

MUSARIRI, J:

Applicant filed in this Court an application for review.  Respondent opposed the application.  The grounds for review were worded as follows;

“The Disciplinary Committee was not properly composed as provided for in terms of …Both employees’ representatives and workers representatives were not part of the Disciplinary Committee and yet statute detects (sic) that they out to have been there.

2. The Appeals Official denied Applicant the right to be heard when he dealt with the matter in the absence of the Applicant…”

The applicable Code of Conduct is embodied in the Statutory Instrument S.I. 165/92.  The relevant portion of the code provides that

“2(c) …the hearing shall be conducted by administering official with up to two worker representatives and up to two worker representative provided that the representatives shall be equal at all times.  These shall constitute the disciplinary committee for the hearing.

3. Appeals procedure

(c) the appeal shall be heard by the designated authority in the presence of the employee who may be accompanied by his representative (s):

Respondent conceded that both provisions of the Code were not followed.  The administering official presided alone over the hearing.  And the designated authority heard the appeal in the absence of the Applicant.  However notwithstanding these concessions Respondent argued that this Court should either remit the matter for a proper hearing or determine the matter on the merits.  In this connexion Respondent relied on the classic precedent being

Dalny Mine vs Banda 1999 (1) ZLR  220 (S) where McNally JA at p222E stated that

“I conclude therefore, that the Tribunal should not have decided the matter on the basis of procedural irregularities.  Its choice was either to remit the matter so that the irregularities might be cured in a rehearing or to hear the evidence itself”.

Respondent also relied on the case of Air Zimbabwe vs Mnensa SC 89/04 where Chidyausiku CJ at P6 stated that

“A person guilty of misconduct should not escape the consequences because he is innocent…New disciplinary proceedings should have been instituted.

However the more pertinent case is the recent precedentin ZUPCO vs Mashinge SC 22/21 where at p5 Makarau JA stated

“16. The broader and more readily acceptable position in my view is that the status quo ante of the parties that is restored upon the setting aside of irregular employment disciplinary proceedings also relates substantively to the contractual status of the parties.  Put simply, it must be understood to mean broadly that upon the setting aside of fatally defective disciplinary proceedings, the employment contract is restored, without necessarily or by implication negating the remedies and procedures available to each party to terminate the contract in terms of the agreed  terms” (The underlining is for emphasis.)

The disciplinary proceedings in the present matter were fatally defective.  Applying the ratio of the ZUPCO case it follows that the status quo ante of the parties must be restored.  The restoration does not mean the misconduct charges necessarily fall away.  They may be dealt with in a manner the parties are best advised within the constrains of the applicable code.  In all the circumstance Appellant’s prayer for reinstatement finds favour.

Wherefore it is ordered that,

1, The application for review be and is hereby granted;

2 	(a) Respondent shall reinstate Appellant without loss of salary and benefits, or

(b) Respondent shall pay Appellant damages in lieu of reinstatement in a sum either agreed by the parties or assessed by this Court; and

3. Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E