Cleopatra Shanda v Zimbabwe Revenue Authority & 3 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/163/24
HARARE, 30 JANUARY, 2024 & 10 APRIL 2024
CASE NO LC/H/819/23
CLEOPATRA SHANDA
APPLICANT
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CLEOPATRA SHANDA

L. SAMHEMBERE N.O.

B. LEMBACHARU N.O.

K. FURAYI N.O.

ZIMBABWE REVENUE AUTHORITY

Before the Honourable G. Musariri, Judge:

For Applicant - Mr T.J. Mafongoya, Attorney

For Respondents - Mr S. Bhebhe, Attorney

MUSARIRI, J:

Applicant applied to this Court for the review of disciplinary proceedings against her conducted by respondent. The application was made in terms of Section 89(1) d1 of the Labour Act Chapter 28:01 hereby called the Act. Respondents opposed the application.


The grounds for review were triplet thus;

“1. The Appeals Committee was improperly constituted in terms of the law and lacked jurisdiction to entertain the matter.

2. The Appeals Committee grossly erred at law by failing to entertain and determine preliminary points raised by the Applicant.

3. By failing to hear and consider the totality of issues placed before the Appeals Committee, the Appeals Committee grossly erred at law rendering its conduct and determination grossly unreasonable, irrational and illegal.”

The grounds for review shall be dealt with **ad seriatim**.

**1st Ground**

Applicant in her founding affidavit stated that;

“2.6 An Appeal Committee is statutory defined as ‘means three members of management and two members from the workers committee, charred (sic) by one of the managerial employees, who did not for point of the Disciplinary Grievance Committee.’

2.7 In the present matter, the 1st Respondent directed that an Appeal Committee proceed without the Employee Representative in flagrant breach of the Code as registered.

2.8 Despite clear objections from the Applicant, the Respondent’s proceeded with the hearing to the grave prejudice of my rights in that;
 i. My right to equal protection of the law was injured.

ii. My interests were not protected as the Committee was no balanced as expected at law regardless of my protestations in the hearing.

iii. Objectively, the Committee’s intention and interests were to dismiss the Appeal despite monumental objections raised.”

In their opposing affidavit respondents countered as follows;

“4.20 At the hearing, the Applicant raised an objection to the composition of the Appeals Committee on the basis that the Appeals Committee did not have Workers Committee members as defined in the Code of Conduct. The Chairman of the Committee advised that the Workers Committee (and Trade Union) had been duly notified of the need to elect and provide Workers Committee members for purposes of constituting the Disciplinary Committees, the deadline to do so, and the consequences of a failure to do so being that the employer would proceed with disciplinary hearings by appointing management representatives as necessary to prevent further delays of justice in respect of the disciplinary matters in the organization. The Applicant requested a further postponement of the matter, which matter had previously been postponed at her behest.

4.21 Having considered the objection by the Applicant and the submissions therein, the Appeals Committee determined the objection and held that the Workers Committee had failed to provide any members for purposes of constituting the Disciplinary Committees despite being given notice of the requirement to do so.

4.22 The election of the Workers Committee members had not been conducted after the expiry of the term of the previous Workers Committee despite having ample time to do so.


As a result the Appeals Committee could not be said to be improperly constituted. The Appeals Committee would proceed, and the Applicant was entitled to appeal against the decision should she so wish.”

A similar scenario was considered in the case of

**Pacprint v Kumbula SC 67/17**

where the Supreme Court ruled that,

“The appellant as required of it, duly invited the workers committee to represent the respondents. The provision that members of the workers committee be on the disciplinary committee is a right that is afforded to the employees. It was thus for the respondents to ensure that the workers committee members attended and participated in the disciplinary hearings and represented them. The consequences of their failure to do so cannot be visited on the appellant.”

Likewise, **in casu** the absence of the Workers Committee representatives at the disciplinary hearing cannot be blamed on the respondents. Applicant failed to ensure the representatives’ attendance despite the opportunity given to allow him to do so.

**2nd Ground**

The preliminary points raised by Applicant were determined by the Appeals Committee thus,

“Due to the non-compliance this is tantamount to waiving their right of representation and as such from the employer’s perspective the Appeals Committee is properly constituted… Thus, there will be no postponement of the Appeals Committee given the said background.”


The other point relating to documents is covered in rather vague terms that

“However, I would like to address the two correspondence that you have referred me to. You will note that these correspondences are correspondences that took place from one side that is the employer side and I do not have or you do not have Mr Chair the response of the two correspondences from the other side meaning to say from the worker side, the trade union side we do not have correspondence in that regard. Therefore, my duty as a Legal Officer employed by the Trade Union which is the employee side would be very, very difficult for me…”

It is not clear whether the applicant’s representative expected the Appeals Committee to furnish him with the documents. But these are documents from his union which he should have had as part of his brief. If the plea was a request for a postponement in order to get the documents the postponement was denied.

Therefore, all preliminary points raised by applicant were determined by the Appeal’s Committee.

3\textsuperscript{rd} Ground

This ground was worded is broad but vague terms. As shown above the Appeals Committee considered all the points raised by applicant. This Court is persuaded to agree with respondents’ argument that;

“5.17. It is clear from the above that the Appeals Committee considered the totality of the issues before it, made determinations on the preliminary issues raised and disposed of the Appeal based on the record. There is no legal or factual basis for the position taken by the Applicant that the Appeals Committee failed to determine the totality of the issues before and application ought to be dismissed on this further basis.”


Conclusion

In light of the foregoing synthesis and analysis it is concluded that application for review fails and ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

1. The application for review be and is hereby dismissed; and

2. Each party shall bear its own costs.

G. MUSARIRI
J-U-D-G-E
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