Colin Damison v D. Atukwa – Hearing Authority and The Vice Chancellor, Bindura University of Science Education

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/07/21
HELD AT HARARE ON 24th NOVEMBER, 2020
CASE NO. 
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THE LABOUR COURT OF ZIMBABWE	       	         JUDGMENT NO. LC/H/07/21

HELD AT HARARE ON 24th NOVEMBER, 2020     CASE NO. LC/H/REV/53/20

AND 26th FEBRUARY, 2021

In the matter between:-

COLIN DAMISON								Applicant

And

D. ATUKWA – HEARING AUTHORITY				1st Respondent

And

THE VICE CHANCELLOR

BINDURA UNIVERSITY OF SCIENCE EDUCATION		2nd Respondent

Before the Honourable Mhuri, J.

For Applicant	   :	Mr. C. Warara (Legal Practitioner)

For 1st Respondent :	No Appearance

For 2nd Respondent :	Ms. V. Vhera (Legal Practitioner)

MHURI J.

The brief background of this matter which is generally common cause is that, applicant was in 2nd respondent’s employ as a Chief Security Officer.  On the 15 July, 2020 applicant was suspended from service for contravening Section 4 (a) of the Labour (National Employment Code of Conduct), Regulations 2006, (Statutory Instrument 15 of 2006) hereinafter referred to as the Model Code.

In compliance with Section 2 of the Model Code, 2nd Respondent appointed 1st respondent as the Disciplinary Authority to preside over the disciplinary proceedings against applicant.

Applicant was totally averse to the appointment of 1st respondent as a Disciplinary Authority arguing that 2nd respondent ought to have complied with Section 26 of the Bindura University of Science Education Act [Chapter 25:22 ] (The BUSE Act) which provides for the Committee that hears and determines charges preferred against employees of applicant’s status.

At the hearing before 1st respondent, applicant raised the preliminary issue, challenging the appointment of the Disciplinary Authority which preliminary issue was dismissed.

Aggrieved with this dismissal, applicant filed this application for review on the following grounds, in summary, that:-

The 1st respondent’s decision that she is entitled to sit as Disciplinary Authority when she was not appointed in terms of Section 26 of the BUSE Act is illegal and she has no jurisdiction to hear the matter.

The 2nd respondent’s decision to appoint 1st respondent as Disciplinary Authority in terms of Statutory Instrument 15 of 2006 is illegal and a direct violation of its duty to appoint a Disciplinary Authority in terms of Section 26 of the BUSE Act.

The 1st respondent’s decision that because there is no registered code of conduct at 2nd respondent’s workplace, Section 26 of the BUSE Act can be overlooked, when it has not been repealed, is an invalid conclusion at law,

The exclusion of Section 26 in the hearing process is based on the wrong conclusion that Section 12B (1) (b) of the Labour Act [Chapter 28:01] repealed Section 26 of BUSE Act.

Both respondents violated applicant’s legitimate expectation to appear before a more experienced person (retired judge).

Applicant’s prayer was to:-

have 1st respondent’s decision to proceed with the disciplinary hearing set aside.

have 2nd respondent‘s appointment of 1st respondent as Disciplinary Authority set aside.

have 2nd respondent pay costs on the legal practitioner and client scale.

From applicant’s submissions, it was not the issue that 2nd respondent proceeded in terms of the Model Code.  His issue was the appointment of the Disciplinary Authority in terms of the Model Code instead of Section 26 of the BUSE Act.

It was his submission that the appointment of 1st respondent by 2nd respondent in terms of the Model Code was a direct violation of the standard procedure provided in Section 26 of BUSE Act, as 1st respondent is not a retired judge.  This robbed applicant of the benefits that are provided in the Act to wit, that an employee is supposed to be represented at the hearing, there must be a three (3) and not one member quorum.  It was applicant’s submission that therefore the disciplinary process conducted by the respondents was invalid and should not be allowed to stand.  The proceedings by 1st respondent to be set aside and fresh proceedings to be conducted in terms of the University’s constitution.

Second respondent’s submissions were generally that the guiding Act is the Labour Act.  The BUSE Act which applicant wants to rely on is subservient to the Labour Act, and since the BUSE Act is not a registered Code, resort is to Section 12 B of the Labour Act which reads in subsection 2 (b) that

“(a)	……………………………………………………….

(b)	in the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9).”

While the BUSE Act provides for a staff Disciplinary Committee and the procedures to be followed therein, since it is not a registered Code, it cannot be applied and any hearing proceeded in terms of this Act will render the dismissal unfair, so submitted the 2nd respondent.  It was further submitted that the law does not provide for a two pronged approach whereby both Statutory Instrument 15 of 2006 and section 26 of the BUSE Act can be used.  A charge raised in terms of Statutory 15 of 2006 cannot be dealt with in terms of the BUSE Act when Statutory Instrument 15 of 2006 itself has clear provisions on how it can be dealt with namely that the hearing can be before a Disciplinary Committee or a Disciplinary Authority.

It was 2nd respondent’s other submission that proceeding in terms of the BUSE Act closes the avenue for appeal to the Labour Court as Section 23 provides that the decision of the Council is final.  This creates an inconsistency between the Labour Act, Model Code and the BUSE Act.

An analysis of the submissions by both applicant and 2nd respondent brings to the fore only one issue for determination.  The issue is whether it was lawful for 2nd respondent to appoint a Disciplinary Authority in terms of the Model Code to preside over the proceedings instead of appointing a Disciplinary Hearing Committee in terms of Section 26 of the BUSE Act.

As stated earlier, applicant’s bone of contention is not with the use of the Model Code in conducting the proceedings but it is about the appointment of the Disciplinary Authority in terms of the Model Code.

1st respondent is a legal practitioner and was appointed as the Disciplinary Authority to conduct the disciplinary proceedings against applicant.

Section 2 of the Model Code, defines Disciplinary Authority as follows:-

“”disciplinary Authority” means a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or at a workplace”

The above definition is clear and needs no interpretation as to what a Disciplinary Authority is.  It can be one person, it can be an authority, it can be a disciplinary committee consisting of employer and employee representatives as defined under the said section 2.

The 1st respondent was appointed Disciplinary Authority as a person in compliance with the definition in section 2.  Section 2 is silent on the qualifications or standing of such a person.  To that end, a legal practitioner can be appointed.

Section 26 of the BUSE Act provides:-

There shall be a Staff Disciplinary Committee which shall consist of the following members appointed by the Vice Chancellor –

A retired judge who shall be chairman; and

A Senior Member of the academic or administrative staff; and

A member of the academic, administrative or technical staff of similar status to the person charged;

A registered legal practitioner of at least ten years’ standing who does not hold any post at the University and who is nominated annually by the Council and;

One member appointed by Council from among its members who are not members of the University staff.

Subsection (5) provides the functions of the staff Disciplinary Committee.  It states:-

“The functions of the Staff Disciplinary Committee shall be to investigate any of a Statute, Regulation or ordinance or other misconduct on the part of any member of the staff of the University and, subject to subsection (6) to recommend to the Vice-Chancellor the punishment to be imposed on or order to be made in respect of the member if it finds him guilty of such misconduct.”

Subsection (6) reads-

“A person charged with misconduct referred to in subsection (5) shall have a right of audience and to be legally represented before the Staff Disciplinary Committee.”

Filed of record are letters of previous appointments of hearing authorities which presided over disciplinary and appeal proceedings.  Applicant’s argument was that previously, the proceedings had been held in terms of Section 26 where a retired Judge Honourable Mubako had been appointed as the hearing authority.  The applicant asked why there was now a change in respect of his case

The 1st letter dated 16th May 2018, filed of record addressed to Hon. Retired Justice Simbi V. Mubako reads in part:-

“RE: APPOINTMENT AS AN APPEALS OFFICER IN TERMS OF SECTION 8(1) OF STATUTORY INSTRUMENT 15 OF 2006: BINDURA UNIVERSITY OF SCIENCE EDUCATION – vs- PROSPER MUNYEDZA

The above refers.

You are hereby appointed as an Appeals Officer in terms of section 8(1) of the Labour (National Employment Code of Conduct) Regulations, 2006 [S.I 15 of 2006] to preside over a matter involving Bindura University of Science and Mr. Prosper Munyedza.

……………………………………..

……………………………………..

……………………………………..”

The 2nd letter of appointment filed of record is dated the 26th September 2018 and also addressed to Hon, S.V. Mubako (Retired).

It reads:-

“RE:  APPOINTMENT AS A DISCIPLINARY AUTHORITY IN TERMS OF SECTION 2 OF STATUTORY INSTRUMENT 15 OF 2006.

The above subject matter refers.

You are hereby appointed as a disciplinary authority in terms of Section 2 of the Labour (National Employment Code of Conduct) Regulations, 2006 [S.I. 15 of 2006] to preside over a matter involving Bindura University Science Education and its three employers from the catering services section.

In terms of Section 2 of S.I. 15 of 2006, a disciplinary authority “means a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or at workplace.”

In light of the above you are hereby appointed to hear and determine the misconduct charges preferred against Messrs. Stephen Wagonya; Pointer Zhorinyo and John Tekwani.

The three named above are employees of Bindura University of Science Education and they are being charged for contravening section 4 (d) of the Labour (National Employment Code of Conduct) Regulations, 2006.

You shall be furnished with the requisite charge sheets and appropriate papers that will enable you to preside over and determine the above matters.”

The 3rd letter of appointment dated 12 June, 2019 was addressed to 1st respondent and is referenced;

RE:  APPOINTMENT AS A DISCIPLINARY AUTHORITY IN TERMS OF SECTION 2 OF STATUTORY INSTRUMENT 15 OF 2006.

It reads:-

“1.	The above subject matter refers.

2.	You are hereby appointed as a disciplinary Authority in terms of Section 2 of the Labour (National Employment Code of Conduct) Regulations, 2006 [S.I. 15 of 2006] to preside over a matter involving Bindura University of Science Education and its employee Felix Mushayi.

3.	…………………………………………..

4.	In light of the above you are hereby appointed to hear and determine the misconduct charge preferred against Mr. Felix Mushayi.

5.	Mr. Mushayi is … employed by Bindura University of Science Education as a driver and is being charged for contravening Section 4 (a) of the Labour (National Employment Code of Conduct) Regulations, 2006.

6.	You shall be furnished with the requisite charge sheets and appropriate papers that will enable you to preside over and determine the above matter.’

The above letters go to disprove applicant’s assertion that previously 2nd respondent had been appointing a hearing officer (retired judge) in terms of Section 26 of the BUSE Act and his query as to why the change now to appoint in terms of the Model Code.  Retired Judge Mubako had previously been appointed as a Disciplinary Authority and Appeals Authority as defined in section 2 and in terms of section 8 of the Model Code S.I. 15 of 2006.  Similarly 1st respondent had once been appointed as a Disciplinary Authority as defined in section 2 of the Model Code.  Applicant’s case was not the first one 1st respondent presided over.

Further the argument by applicant that he was deprived of the benefit to appear before a retired judge is without merit.  The Model Code under which applicant’s proceedings were conducted does not state the qualifications of the person to be appointed as a Disciplinary Authority.  The fact that previously a retired judge was appointed does not in terms of the Model Code, necessarily mean that it shall always be a retired judge who shall be appointed.  The appointment in terms of the

Model Code is in my view the discretion of the employer.  Further I find it to be without merit applicant’s other assertion that appearing before one member Committee deprived him of representation.

The Model Code does not bar legal representation and also provides for appointment of either a Disciplinary Committee (which consists of employer and employee representatives) or Disciplinary Authority (who can be a person).  As alluded to, the appointment is the sole discretion of the employer and in casu the 2nd respondent chose to appoint a Disciplinary Authority as opposed to a Disciplinary Committee.

It was not in issue that 2nd respondent has no registered code of conduct and that the BUSE Act is not a registered Code.  It is trite that in the absence of a registered code, resort should be had to the Model Code in conducting disciplinary proceedings.  See Section 12 B subsection (2) (b) of the Labour Act cited earlier in this judgment.  It not being an issue that 2nd respondent has no registered Code of Conduct, it not being an issue that 2nd respondent proceeded in terms of the Model Code, it follows therefore that it is the provisions of the Model Code that  were to be followed.  I am persuaded by 2nd respondent‘s submission that the law does not provide for a two pronged approach where provisions of both the Model Code and the BUSE Act can be used in the same proceedings i.e. charge the employee in terms of the Model Code, appoint the disciplinary hearing committee in terms of the BUSE Act and then conduct the disciplinary proceedings in terms of the Model Code.

Having considered the parties submissions, I find that the applicant’s alleged procedural irregularity i.e. about the appointment of 1st respondent in terms of Section 2 of the Model Code, is totally without merit.  To that end his prayer seeking nullification of respondent’s actions on the basis that 1st respondent lacked jurisdiction to preside over his disciplinary proceedings cannot be granted.  1st respondent shall therefore proceed with the hearing proceedings.

In the result,

IT IS ORDERED THAT;

The application for review be and is hereby dismissed with costs.

WARARA & ASSOCIATES – Applicant’s legal practitioners

TAMUKA MOYO ATTORNEYS – 2nd Respondent’s legal practitioners