City of Harare v Cosmas Bungu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/146/2020
HARARE, 23 MARCH 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/146/2020

HARARE, 23 MARCH 2020		             	     CASE NO. LC/H/153/19

AND 3 JULY 2020

In the matter between:-

CITY OF HARARE					Appellant

And

COSMAS BUNGU 					Respondent

Before Honourable B.S. Chidziva, Judge

For Applicant		Ms R. Mhlanga (Legal Practitioner)

For Respondent		Mr J Mambara (Legal Practitioner)

CHIDZIVA, J:

This an appeal against the decision of Honourable Arbitrator Mudiwa dated 17th June 2019 which was couched as follows;

“Wherefore after carefully analysing the relevant facts and law, I make the following awards,

The Disciplinary Committee was properly constituted.

The charges against the claimant were preferred outside the prescribed time.

The department representative did not act improperly when he led evidence at the hearing which evidence had the effect of pre-emptying the matter or causing bias. The dismissal of the claimant was not fair in the circumstances.

The respondent is hereby ordered to reinstate the claimant.

Alternatively if reinstatement is no longer tenable parties can negotiate on payment of damages and if parties fail to agree either party can approach the arbitrator for the quantification of the award.”

The brief facts of the matter are that the Respondent who was employed as a Housing Managing Officer was charged in terms of SI 17/2007 for absenteeism and dereliction of duty. He was found guilty of the charges and dismissed from employment. Appellant was aggrieved by the decision and he referred the matter for arbitration. It was found that Respondent was unfairly dismissed hence the appeal before this court.

The grounds of appeal are as follows,

The Arbitrator erred in finding that the charges against the Respondent were preferred outside the prescribed time and that the Head of Department erred in instituting disciplinary proceedings against the Respondent.

The court a quo erred by holding that the charge of absenteeism against the Respondent was not proven on a balance of probabilities.

Arbitrator erred in finding that the Appellant did not afford the Respondent the opportunity to be heard at the Disciplinary Hearing.

In response the Respondent stated that,

The first ground of appeal does not raise any point of law. There were no special circumstances that were placed before the Arbitrator to explain why the charges were preferred outside the prescribed time limits. The fact that the head of department delayed in instituting disciplinary proceedings is a factual finding.

The Respondent was available in the building but was never advised that the Appellant was proceeding with the hearing.

What is to be decided is

Whether or not the disciplinary proceedings were preferred out of time.

Whether or not an appeal court can make a finding on facts.

Whether or not the Respondent was afforded an opportunity to be head.

Whether or not the disciplinary proceedings were preferred out of time

Part V (iii) of SI 17 OF 2007 states that disciplinary proceedings

“Shall be conducted within 14 days after Municipality Executive has given authority except in circumstances where there is justifiable reason.”

However an investigation should be carried out before a matter is referred for hearing.

Part VII B SI 17/2007 on Group 2 – 4 offences states that

“Where the Head of Department is satisfied that an employee has committed an offence he shall within (7) seven working days refer the matter to the Human Resources Director enroute the employer to facilitate a hearing. The hearing shall be convened after reporting the Act of misconduct to Council. The procedures for the hearing shall be outlined in Part V of the Code.”

The Statutory Instrument does not state the time period for investigations. It only states that once the Head of Department is satisfied that an offence was committed he/she has to refer the matter for hearing within 7 days and the hearing has to be conducted within 14 days. The offence was committed in September 2009 and it was only discovered by one Mellion Mbona in November 2009 when the annual report was being compiled. The charges were then raised in November 2009 after full investigations. In my view the hearing was not conducted out of time.

The ground of appeal on this issue is also proper in that it was a question of law. This court was being asked to determine what the true rule of law is on this matter.

In the case of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 Gubbay CJ on the issue of question of law stated that,

“The two concepts, question of law and question of fact were considered in depth by E.M. Grosskopf JA in Media Workers Association South Africa & Ors v Press Corporation of South Africa Ltd (Perstor) 1992 (4) SA 791(A). Approving the discussion of the topic in Salmod on Jurisprudence 12th Edition at 65 – 75,the learned Judge of Appeal appointed out at 795D-G that the team “question of law” is used in three distinct though related senses.

First it means “a question which the law itself has authoritatively answered to the exclusion of the right of the right of the court to answer the question as it thinks fit in accordance with what it considered to be the truth and justice of the matter.

Second it means “a question as to what the law is. Thus an appeal on a question of law means an appeal in which the question for argument or determination is what the true rule of law is on a certain matter.”

In the case of Reserve Bank of Zimbabwe v Lorraine Grange & Martha Mataruka SC 34/2001 it was stated that,

“An appeal to this court is based on record.  If it is related to the facts there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision. And a misdirection of fact is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”

In this case it is my view that there was also a misdirection on the facts which made the arbitrator’s decision unreasonable.

Whether or not the Respondent was given an opportunity to be heard

It was the Respondent’s submission that he was not given the opportunity to be heard. He stated that when he presented a letter with the request for postponement the Respondent’s lawyer had asked for a postponement was unfair. The Respondent should have been allowed to engage another lawyer or if he should have been asked to attend the proceedings if the reason for postponement was found to be unreasonable.

Part V A(II) of SI 17/2007 states that a disciplinary hearing may be conducted,

“Maybe held in the absence of the employee if after being notified of the date, time and play of hearing and there is proof there to, the employee without reasonable excuse wilfully fails to attend in which event the fact that proceedings were held in the absence of the employee shall be placed on record.”

In this matter the Respondent did not wilfully fail to attend but he brought an excuse from his lawyer.

Part VB (a) i- iii of SI 17/2007 also states that at the hearing the accused employee shall be entitled to present his defence, question witnesses who are giving evidence against him on any material issue, call witnesses to testify in his favour and to be supplied with any documentary or other exhibits.

All this was not done for the Respondent. The arbitrator therefore did not err by finding that the Appellant did not afford the Respondent the opportunity to be heard in the disciplinary hearing.

In the circumstances this court finds that the dismissal was unfair.

It is therefore ordered that,

Grounds of appeal number 1 succeeds.

Grounds 2 and 3 lack merit.

The Appellant is to institute proper disciplinary proceedings within 30 days of this order failure of which the Respondent is reinstated. If reinstatement is no longer tenable the parties can negotiate on payment of damages and if they fail to agree either party can approach the arbitrator for the quantification of the award.

The Appellant shall bear costs.

Kanokanga & Partners, appellant’s legal practitioners

J. Mambara & Partners, respondent’s legal practitioners