Carlington Mukudo v Quality Gas Private Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/103/23
HARARE, 10 FEBRUARY, 2023 AND 19 APRIL 2023
CASE NO. LC/H/802/22
CARLINGTON MUKUDO
APPLICANT
And
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IN THE LABOUR COURT OF ZIMBABWE
HARARE, 10 FEBRUARY, 2023 AND 19
APRIL 2023

CARLINGTON MUKUDO
APPLICANT

And

QUALITY GAS PRIVATE LIMITED
RESPONDENT

Before the Honourable B.T Chivizhe, Judge;

For the Applicant : Mr F Madondo, Legal Practitioner
For the Respondent : Mr T. Nyamucherera – Legal Practitioner

CHIVIZHE, J:

The application is for a review of the disciplinary proceedings as convened by the Respondent against the Applicant. The application is premised on Section 92 EE (1) (c) of the Labour Act [Chapter 28:01]. The application is opposed.

BACKGROUND FACTS

The material background facts to the matter are as follows. The Applicant is a former employee of the Respondent, having been employed as Gas Filler for eight years. He was suspended from employment on 5 July 2022 following allegations that he had an 27th June, 2022 filled tanks for a customer named Pachipamwe who had come to the depot with 55 x 48kg tanks I x 3kg tanks. The customer was alleged to have paid $2599. 32kgs for the tanks to be filled with gas as follows 33x 48kgs, 1 x 19kgs, 1x 33kgs as 1 x 3.32kgs. The Respondent further allegations were that Applicant has proceeded to fill a gas cylinder with 48kgs whereas it was supposed to be filled with 19kgs resulting in a loss to Respondent of 29kgs which were filled but not paid for by the customer. The Respondent also alleged that since Applicant’s move to Msasa, it had experienced shortfall on specific days outlined i.e. 6th May 2022-shortfalls of USD22.44, 17th May 2022 a shortfall of USD 169.84, 31st May 2022 a shortfall of
 USD 82.09 21th June 2022 a shortfall of USD 107.16. The Respondent further alleged that at Waterfalls Depot variances had also been recorded.

(a) In January 2022, of 965.17  
(b) In February 2022 of 65.57

The Respondent was accordingly charging Applicant with a) Unsatisfactory Work Performance in terms of section 7 (1) of the relevant Code of Conduct, In that the applicant negligently overfilled gas cylinder with gas more than what was paid for and marked on the customer’s cylinder b. Dishonesty in terms of section 7 (1) (j) (ii) of the Code of Conduct in that

(i) he failed to account for property (29kgs of LP gas) belonging to the company in respect of which it was his duty to safeguard.

(ii) for falsifying what was marked on the cylinder and consequently overfilling the cylinder.

The Applicant pleaded not guilty to the charges. The Respondent convened a disciplinary hearing which was held on the 8th and 15th July 2022. The Applicant appeared on both occasions with his legal practitioner. The Applicant having taken points in limine these were dismissed on the same dates i.e. 8th and 9th July, 2022. Evidence was then led by Respondent from witnesses including Tamary, who was the complainant and Chris, the Applicant supervisor. The witnesses were subjected to cross-examination by applicant’s legal practitioner. The Applicant also presented his case and was subjected to cross examination. He led evidence through his witness, Tadiwa Pachipamire, the client who allegedly had his 19kg gas cylinder over filled to 48kg by the Applicant. The complainant having opted to forgo cross examination of both Applicant and his witness the Applicant closed his case. The Disciplinary Authority Chair then advised the Applicant that his determination would be made available in three days. The determination was then handed down on......

The Disciplinary Authority having considered the evidence led found the Applicant guilty of the charges levelled. Having thereafter proceeded to weigh the Applicant’s mitigating features as against the aggravating features of the case the Disciplinary Panel imposed a penalty of dismissal with effect from the date of suspension. The present application for review is attacking the Disciplinary Hearing proceedings as being grossly irregular.
 The application has been largely premised on **Section 92 EE (1) (c)** of the **Labour Act [Cap 28:01]**. The Applicant in his oral and written submissions raised three major issues. I turn to address the specific grounds of attack.

Before I do this however, I note that the Applicant legal practitioner through his heads of Argument had raised a point in *limine*. On the date of hearing however he took the option to abandon the point in *limine*. The point in *limine* accordingly stands as dismissed.

**IMPROPER COMPOSITION OF THE DISCIPLINARY PANEL**

Applicant contends that the Disciplinary Panel was improperly constituted against the procedural dictates of the relevant Code of Conduct. Whilst the Code provides for a minimum quorum of 5 people i.e. chairperson and two representatives each for the employer and employee, the Disciplinary Panel in this case did not meet the minimum requirement. This applied to both hearings on the 8th and the 15th July, 2022. The Applicant had raised the issue during the hearing but was overridden by the Chairperson.

The Respondent position, per contra, is that the position of the law on the issue of improper composition of disciplinary committee is clear. The Supreme Court in decisions such as **Nyahuma** vs **Barclays Bank SC 67/05, Unifreight vs Leighton Madembo SC 6/2018** has always taken the approach that for one to succeed with a claim of a procedural irregularity one has to necessarily prove any prejudice suffered as a result of the procedural irregularly. The court was urged not to take an armchair approach but to consider whether verbally the disciplinary proceedings had been conducted with a certain level of fairness. The court was urged to note from the record that the Applicant had been fairly treated throughout. He was accorded his right to reply to the charges, to cross-examine the Respondent’s witnesses and to lead evidence from his own witness. The Applicant had also been legally represented throughout the proceedings. In regards the composition of the Disciplinary Panel the submission was made that the improper composition was with a good reason, the individuals who were supposed to sit in the Disciplinary Panel were compromised as they had been involved in the case one way or the other. On the issue of the Chairperson the relevant Code of Conduct in paragraph 9 subparagraph 3 actually provided for an alternate to the Chairperson, who can sit in the absence of the Chairperson. This is what had happened *in casu*. The Respondent’s legal practitioner urged the court to find that the Applicant having failed to prove/establish prejudice there were no procedural irregularities sufficient to vitiate the disciplinary proceedings.


It is apparent from a reading of the Applicant’s grounds of attack and the record that there, were indeed procedural irregularities in the disciplinary hearing. The Respondent has to some extent conceded so. The issue that arises is whether those irregularities were sufficient to warrant the setting aside of the disciplinary hearing proceedings.

The position of the law on this point, is, as correctly alluded in by Respondent, captured in the seminal decision in **Nyahuma** vs **Barclays Bank of Zimbabwe** SC 67/05 wherein the Supreme Court stated as follows;

“…… It is not all procedural irregularities which vitiate proceedings. In order to succeed in having proceedings set aside on the basis of procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”

This position has also been followed in several decisions including **Unifreight** vs **Leighton** **Madembo** referred to supra.

The relevant Code of Conduct i.e. **Zimbabwe Energy Industry Employment Code of Conduct, 2011** prescribes a minimum quorum of 5 members for the Disciplinary Committee. There is no doubt from the record of proceedings on both the 8th and 15th July 2022 there was no such minimum quorum. On the 8th of July there was no employer representative but there was one employee representative. Following an objection by the applicant on the 15th July 2022 the chairperson was substituted, and a new employee representative was also brought in. Applicant having persisted with his objection to the employer representative, Brian Chikera was then brought in only to be dropped out again. The hearing then proceeded still without the employer representative. The Applicant has opined that the respondent faced with such a situation ought to have resorted to the **National Code of Conduct** and allowed a Disciplinary Authority (composed of one person) to conduct the disciplinary hearing. The Applicant has referred to the case of **City of Gweru v Richard Masinire** SC 45/13.

The court agrees entirely with the Applicant. There was clearly a blatant disregard of the procedural dictates of the Code. It is trite position a Disciplinary Committee must be comprised of representatives of the both the employer/employee. This ensures a fair and transparent process. The applicant clearly stood to be prejudiced by a process where there were no equal arms between the employer/employee. Although disciplinary proceedings are generally conducted with flexibility, the court is unable to find that the disciplinary proceedings in this case were conducted in a fair and procedurally just manner. The haphazard manner in which the proceedings were conducted with committee members walking in and out leaves a lot to be desired. Faced with the challenge of compromised personnel the employer could have easily resorted to utilising the National Code of Conduct as suggested by Applicant.

**MITIGATION**

The applicant also clearly stood to be prejudiced by the fact that after finding him guilty on the charges the Disciplinary Committee proceeded to impose a dismissal penalty after having itself considered the purported aggravating features/mitigating features of the cases. The applicant was simply not accorded an opportunity to self-mitigate. The respondent position through counsel is that it was entitled to do this by virtue of the law in particular **Section 12B (4)** of the **Labour Act [Chapter 28:01]**. Nothing could be more further from the truth. The correct position of the law is that an employee is entitled to present his/her own evidence in mitigation. See for an example **Muchechetere vs ZBC (pvt) limited and 2** others SC 143/21.

**Section 12B (4)** referred to by counsel simply makes no provision for such a procedure. The sections reads as follows;

“(4) In any proceedings before a labour officer, designated agent or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee’s service, the employee’s previous disciplinary record, the nature of the employment and any special personal circumstances of the employee.”

**WHETHER RESPONDENT BECAME FUNCTUS OFFICIO AS PROCEEDINGS WERE CONDUCTED OUTSIDE TIME LIMIT**

The third and last issue raised by the applicant is that the disciplinary proceedings having been convened outside the time limits as stipulated by the Code of Conduct the termination was unlawful. It was void *ab initio*. Applicant contends that he ought to be restored to his status quo ante. The applicant has referred to the famous statement by Lord Denning in **Mc Foy v United Africa Company Limited** (1961) 3 A 1169 (PC).

The respondent’s counsel in oral submissions noted that although the Code of Conduct states that the hearing has to be conducted within 14 days – (Paragraph 18(c) refers) the postponements in this case were all instigated at applicant’s instance as applicant objected to the presence of certain individuals in the hearing. The court was urged to find that there had been substantial compliance with the Code in that respect. Respondent’s counsel prayed for the dismissal of the point and the application in general.

The last ground clearly stands to be dismissed. Paragraph 18(c) of the relevant Code of Conduct provides that the disciplinary hearing be conducted within 14 days. The facts reveal that the applicant was suspended on 5th July, 2022. He went before the Disciplinary Committee on 8th of July, 2022. He then received the final determination of the Disciplinary Committee via WhatsApp on 4th August, 2022

Clearly the disciplinary proceedings exceeded the 14 days as prescribed by the Code of Conduct. The issue that arises is this sufficient to vitiate the disciplinary proceedings? The answer is NO. The position of the law is that a party who is aggrieved by the delay in the convening of disciplinary proceedings has a recourse. He has the right to seek a mandamus for the employer to be directed to conduct disciplinary proceedings. See Stella Nhari v ZABG SC 51-13 where the Supreme Court remarked thus at page 6 of the cyclostyled judgment;

“Attention should however be drawn to the decisions in Nyoni vs Secretary for Public Service, Labour and Social Welfare and Anor; Telecommunications Corporation vs Zvenyika Chizema SC 158/04 which suggest that delay alone cannot justify reinstatement and the delay merely gives the aggrieved party the right to the remedy of a mandamus to enforce due compliance with any time limits. Whether the fourteen (14) day requirement applies is the entire proceedings, or only to investigations is not a matter which is before me and need not therefore detain me.” (My own emphasis)

The failure to convene disciplinary proceedings within time limits would ordinarily not result in vitiation of such proceedings. See also **Thousand Sadziwani v Natpak (Pvt) Ltd** SC 6/17. The proper relief where no decision has been rendered is to seek to refer to a Labour Officer as submitted by respondent. The applicant did not make use of that remedy. The ground is clearly without merit.

Finally the court having come to the conclusion that there were procedural irregularities in this case which were sufficient to vitiate those proceedings the court ought to necessarily grant the application as sought. The respondent’s counsel submitted that should the court arrive at this conclusion the court should not order applicant reinstatement as to do so would be to impute his innocence on the charges levelled by the employer. The respondent’s counsel referred the court to several judgments including **Standard Chartered** vs **Chikomwe** SC 71/2000. The court was urged to therefore grant an order for reinstatement with no salary. The applicant’s counsel did not agree. He submitted that the court should grant an order in the terms of the draft as filed of record. The respondent could at its own discretion conduct a trial de novo in the matter.

After considering submissions by the parties the court is inclined to grant an order as per the draft filed. The Applicant shall revert to his status quo ante. As he was placed on suspension without pay he will accordingly revert to this position. The order is based on the same sentiments as raised by MUCHECHETERE J.A. in **Standard Chartered Bank of Zimbabwe v Chikomwe & Ors** SC 77/2000, aptly referred to by the Respondent when he stated as follows;

“..... reinstating the Respondent in such circumstances implies a finding that respondents were innocent of the charges of misconduct against them by the hearing officers ………. A setting aside of the proceedings of the disciplinary committee should therefore lead the parties to the same position before the hearing in the disciplinary committees – appeals before a properly constituted disciplinary committee.”

**It is accordingly ordered as follows;**

1. The application for review succeeds.
2. The disciplinary proceedings and determination made by the Disciplinary Committee be and are hereby set aside.
3. The respondent shall reinstate the applicant to his position without loss of salary and benefits from the date of unfair termination.
4. The respondent’s status shall with effect from date of this order revert to his status quo ante i.e. on suspension without salary.
5. The respondent shall conduct a fresh hearing within 30 days of the date of this order.

*Rufu-Makoni Legal Practitioners*, counsel for the applicant
*Lawman Law Chambers*, counsel for the respondent
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