Dexter Chasokela v Rodcroft Engineering (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 17TH JUNE, JUDGMENT NO. LC/H/212/23 CASE NO.
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IN THE LABOUR COURT OF
ZIMBABWE HARARE, 17TH JUNE,
2023 & 12 JULY 2023

DEXTER CHASOKELA
And
RODCROFT ENGINEERING (PVT)
LTD

Before the Honourable Kachambwa,
Judge;

Appellant
LC/H/212/23 CASE NO.
LC/H/959/22

Respondent

For Applicant: K. Tichawangana (Legal Practitioner)

For Respondent: T. Deme (Legal Practitioner)

KACHAMBWA, J:

The Application

1. This is an application for review of the respondent’s disciplinary process against the applicant. The applicant was charged of acts of misconduct. He was subjected to a hearing and was found guilty. A penalty of dismissal was imposed. He challenged the process for being irregular.

The Grounds for Review

2. The grounds for review are listed as;


“1. The applicant was employed by the respondent. The respondent suspended the Applicant from employment without benefits.

2. The respondent later charged the applicant for misconduct. The charge was not in accordance with the applicable code of conduct. In fact, the respondent proceeded in terms of non-existent procedure.

3. A hearing was later held leading to the dismissal of the applicant. It was later communicated by the respondent that dismissal was in terms of Statutory Instrument 15 of 2006. The statutory instrument is not applicable as the industry within which the respondent operates has its own registered code of conduct.

4. The procedure and decision by the respondent are being challenged on the grounds of gross irregularity and impropriety”.

3. The applicant explains in detail the application. In the 12th paragraph he explains the proceedings were null and void because of;

“12.1. The respondent suspended and charged me in terms of an unknown code of conduct;

12.2. The respondent failed to follow the procedure laid down in the code of conduct which applies in the Construction Industry as contained in the Collective Bargaining Agreement for the industry;

12.3. The respondent’s disciplinary committee was improperly constituted;

12.4. I was not given the opportunity to cross examine any witness or make submissions in mitigation;

12.5. The respondent dismissed me from employment in terms of SI 15 of 2006 when I was charged in accordance with its provisions and when it does not apply to me”.


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The Relief Sought

4. The applicant’s draft sought that a relief with an alternative.

“1. The Respondent’s determination dated 14th September 2022 be and is hereby held to be irregular and is hereby set aside.

2. The proceedings against the applicant are hereby quashed and the respondent is ordered to proceed in terms of Collective Bargaining Agreement Construction Industry Statutory Instrument 45 of 2013.

3. Respondent to pay costs of this suit”.

Opposition

5. The respondent opposed the application. Firstly it said that the industry code did not apply because the applicant was a managerial employee. He is not subject to the collective bargaining agreement. Secondly it was said that there were no meaningful procedural irregularities to warrant the relief asked for. The applicant was said not to have complained about the composition of the hearing committee. He was also said not to be telling the truth by saying that he had not been given the opportunity to cross examine the witnesses. The respondent denied the existence of any gross irregularities in the proceedings.

Applicant’s Heads of Argument

6. In the Heads of Argument the applicant further explained the irregularities. He pointed out that S.I. 45 of 2013 did not exclude managerial employees. He referred to section 27A as inclusive of all employees. It reads in part;


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 “27A(1) The code of conduct and grievance procedure set out in Annexure 11 shall be observed by all employers and employees: Provided that, if necessary, an employer may, with the approval of council, adopt or simplify the code in detail but not in principle to suit the circumstances of his/her particular establishment”.

7. It was also argued that the failure to cite the disciplinary Code was fatal.

8. On the composition of the disciplinary committee he insisted that it was improperly composed as Mr Sibanda had done the suspension, the investigations and the hearing. He challenged that the minutes of the hearing were not a correct record as they did not reflect the challenge on the composition of the committee. Further the minute taker was also a witness to the charges. As such bias was expected. The chairperson was said to be the only person who spoke. The persons who were recorded as witnesses were also members of the panel (though they did not give evidence or ask any questions!). The applicant’s counsel was said to have been denied the opportunity to address in mitigation.

9. On the day of the hearing the applicant did not add or subtract to his heads of argument. He was content with adhering to them.

Respondent’s Heads of Argument

10. The respondent said that there were no acceptable grounds for review. They did not meet the standard to be accepted. They did not fall into any of the categories mentioned in sections 26 and 27 of the High Court Act [Chapter 7:06].


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The sections read:-

“26 and 27. Grounds for Review
“26 Powers To Review Proceedings and Decisions.
Subject to this act and any other law, the High Court shall have power jurisdiction and authority to review all proceedings and decisions of interior courts of justice, tribunals and administrative authorities within Zimbabwe.

“27 Grounds For Review
(1) Subject to this act and any other law, the grounds on which any proceedings or decisions maybe brought on review before the High court shall be-
(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned.
(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned as the case maybe;
(c) Gross irregularity in the proceedings”.

11. On the issue of suspension without benefits the respondent said that there was nothing irregular about that. On the ground of the wrong code the respondent said that the ground lacked “cogency and particularity”. It was not clear to the respondent. In paragraph 23 it is said that-

“23. One wonders whether the complainant (sic) is that the applicant was charged or that the charge was not substantively proper or that the procedure used to charge the respondent was incorrect. If the complainant is against the procedure used during the disciplinary hearing, that is not coming out and at any rate, the Disciplinary Committee is not cited”.

12. On the third ground the respondent also said that the ground was not clear and that in any case Statutory Instrument 45 of 2013 did not apply to managerial employees. It was further argued that the applicant did not complain about this and therefore he had acquiesced to the use of that code and must be stopped from challenging it now.

13. On the last ground it was said to be vague embarrassing and just a bold allegation. It was not particularised to enable the other party to make proper submissions. This was said to be a fishing expedition by the applicant.

14. The application for review was said to be horrible. The grounds for review were “a dog’s breakfast”. The respondent prayed for dismissal with costs on the attorney client scale.

Submissions In Court

15. Applicant did not add or subtract. He did not make any further submissions. He abided by the filed heads of argument. On the other hand the respondent further said that the grounds for review were in violation of the Rules of the court and that they were not concise and precise as required by Form LC5. The grounds were said to be “just a rambling”.

16. The respondent also attacked the relief sought for seeking reinstatement in an application for review. It was said that reinstatement talks to the merits and not procedural irregularities and for that reason the relief sought was incompetent. The application should be struck off or dismissed.

17. In response the applicant referred to the case of Zimbabwe Trust Investment Co v Gwinyani SC 150/1995 which he said said that employee is every employer unless specifically excluded. The Statutory Instrument 45/2013 was not exclusive of managerial employees and therefore Statutory Instrument 15 of 2006 did not apply.


Points In Limine


18. The respondent raised points in *limine*. The first point is that the chairperson of the disciplinary committee should have been cited. The failure to do was an irregularity. However we are not told as to whether that is fatal to the application. The employer was said to be a secondary respondent and that the chairman of the committee was the primary respondent who had to be given a chance to respond to the application. No authority was cited for this argument. However sometimes the chairperson is cited *nomino* official but he/she does not normally respond unless there are peculiar circumstances pertaining to him/her. The real respondent is the employer. That is why in the majority of these proceedings the chairpersons or designated agents or such parties by whatever name, are not cited. Therefore this point in *limine* while true in a way, it does not determine the matter. The citation seems to be merely technical. Therefore, the point in *limine* as a mere technical argument, does not determine this matter.

19. The second point in *limine* was that the grounds of appeal do not raise proper grounds of review in line with the High Court Act [*Chapter 7:06*] sections 26 and 27 thereof. It was not explained how each of the grounds fails. For example how does a ground which challenges the code applied fail to be a ground for review? How does a ground which says that one was not informed, in the charge, of the particular provisions breached fail to be a ground for review?. This was a misguided point in *limine*. It has no merit and must be dismissed and is hereby dismissed.

Analysis of the Submissions on Grounds for Review

20. It must be pointed out at the outset that this is one of if not the most unhelpful submissions this court has dealt with. This is moreso regard being had to the fact that the submissions were compiled by legal practitioners.


The court is going to deal with each ground of appeal and look at how the parties have faired.

Ground of review No.1 says that the applicant was employed by the respondent and the respondent suspended him without benefits. The ground does not say how this is unprocedural. Normally it is the employer’s discretion to suspend with or without benefits. If anyone is to claim that that is unprocedural in a particular case then there is a duty to say how that is so. It is noted that this ground is not addressed in the heads of argument. So it can be taken as abandoned. It was indeed a waste of energy and time to raise it in the first place. As pointed out by the respondent it lacked precision and was of no merit. It must be dismissed with the contempt that it deserves.

21. Ground No. 2 says that the charge was not in accordance with the applicable code and that the respondent proceeded in terms of a non-existent procedure. The respondent is correct to say that the ground is not precise. Indeed it could have been clearer. But read with the founding affidavit the ground stands together with the second ground. The applicant objects to the application of Statutory Instrument 15 of 2006 and averred that Statutory Instrument 45 of 2013 is the applicable law. Further Statutory Instrument 15 is only mentioned in the conviction. It is nowhere mentioned in the charge, the suspension or the proceedings. A cursory perusal of these documents confirms this. It is a gross irregularity to “charge” an employee without reference to the provision breached. Infact such is no charge at all. The employee is not given an opportunity to assess the correctness of the charge and its gravity. That is a fatal irregularity. There is no charge at all.

22. Therefore while ground of review No.2 is not precise it is definitely correct that the respondent proceeded in terms of non-existent procedure. Through all the papers there is no indication of what provision(s) had been breached.


This only comes at the end. That is a fatal error. On this ground alone the application for review succeeds without question.

23. Ground No. 3 simply says that Statutory Instrument 15 of 2006 does not apply since the respondent has its own code. The respondent’s argument is that it does not apply to managerial employees. The applicant’s response to that is that there is no provision in Statutory Instrument 45 that disqualifies the applicant.

24. It was unfortunate that the respondent argued without reference to specific provisions of the industry’s code. References was to Statutory Instrument 15 of 2006. On the other hand the applicant referred to section 27A of Statutory Instrument 45 which has already been cited in part in paragraph 6 above. 27A(2) reads that;

> “All disciplinary cases and discharges shall be dealt with in accordance with the code, and in any such instance which are not covered by the code, these shall be dealt with having the regard for the spirit and intention of the code”.

From this alone it would appear that managerial employees are included. Anyone saying otherwise would have to explain these provisions as to how they do not include them.

25. The parties did not consider the section which deals with the application and interpretation of the code. Subsection(1) of section 1 says that the code is binding and shall be observed by-

> (a) “the employers and employees engaged in the construction industry who are members of the employer’s organisations and the trade unions respectively, in the area of Zimbabwe;”

> (b) all other employers and employees in the industry in the area of Zimbabwe”.


Once again this seems to include all employees. But again the parties did not discuss this provision.


26. The interpretation section says that the word employee means “a person employed in the construction industry for whom wages are prescribed in this agreement” (my underlining).

This is the provision that would otherwise exclude the applicant. The parties did not have regard to this provision. We were not told whether or not the applicant’s wages are prescribed by this agreement. Therefore the issue cannot be resolved. It is up to the parties to go back to the drawing board and find out where the applicant stands. This is how they were unhelpful.

27. The fourth ground of review was that the decision was being challenged on the grounds of gross irregularity and impropriety. This is meaningless where the irregularities are not listed. The allegation will not be complete. It cannot stand alone. But a reconstruction of the grounds shows that the earlier grounds are the irregularities and the fourth ground is otherwise the “foundation” ground. It is a question of poor draftsmanship. Very poor indeed. That this is the correct construction is supported by paragraph 12 of the founding affidavit which says that procedure adopted was “grossly irregular and improper to such an extent that the proceedings are null and void. I say this for the following reasons;

“12.1. The respondent suspended and charged me in terms of an unknown code of conduct;

12.2. The respondent failed to follow the procedure laid down in the code of conduct which applies in the Construction Industry as contained in the Collective Bargaining Agreement for the industry;

12.3. The respondent’s disciplinary committee was improperly constituted.

12.4. I was not given the opportunity to cross examine any witness or make submissions in mitigation.


12.5. The respondent dismissed me from employment in terms of Statutory Instrument 15 of 2006 when I was not charged in accordance with the provisions and when it does not apply”.


28. One can see that the applicant is confused and confusing. The affidavit is adding more instances of irregularity without explanation. In what way was the disciplinary committee irregular? What does the code say about the committee? This is not ventilated in the affidavit. However we find it in the heads of argument. Indeed the committee’s composition is peculiar in that it has a chairman and the rest of the list is of witnesses. Further one of the witnesses was also the minute taker. That is a total disaster. The respondent did not explain glaring errors. In terms of what provision is such gross miscarriage of justice allowed?

29. The applicant also mentioned the irregularity of the chairperson being the one who suspended the applicant, investigated and then presided over the matter. Further it was a one man band as he is the only one who put questions to the applicant. That could be so since the other listed persons were witnesses. The record of proceedings does not show the involvement of these others. If there is a provision in the code which allows the chairperson to be everything as in this case then that provision is itself irregular. It must be repealed. A party may not be the investigator and jury in the same case. To that extent the proceedings are fatally irregular. Authority for this is in abundance. It falls under the principle of natural justice. No-one must be judge is his own case. The investigator must be different from the trier of facts. It is often referred to in its Latin words, “nemo iudex in cause sua”. Literally it says that “no-one should be a judge in their own cause”. This principle is meant to prevent a potential wrongdoer from condoning his own errors by being his own judge and also to preserve public confidence in the judiciary. It is also meant to stop an investigator from simply confirming his findings after the investigations, a biased outcome. In the present case there are no clear allegations of bias as such but the rudimentary sense of justice does not countenance a case of this magnitude that we are seeing here where the investigator surrounds himself with witnesses as part of the committee and plunders through a hearing as the only speaker. It is unprecedented. The sense of bias reverberates on its own.

30. It is unfortunate that the appellant tended to scratch on the surfaces on his issues. In that regard the issue of bias and *nemo iudex* are not dealt with in greater detail by either litigant. When bias is alleged after the event it must be clothed with the actual evidence of it. It is useful to refer to precedent in such allegations. All this is not attended to. However in **Jerry Musarira v Anglo American Corporation** SC 53/2005 Cheda JA (as he then was) had occasion to deal with allegations of bias. At pages 3-4 thereof he says that-

> "I would point out here that as long as a charge of misconduct is preferred by an employer against an employee there is always a certain element of institutional bias, as the employer is the offended party. However, this happens to be the situation in all misconduct cases. What is important is that the misconduct matters are dealt with in a manner that is fair and impartial and that the rules of natural justice are followed. The rules of natural justice in such a case are that the party concerned – (a) must be given adequate notice; (b) must be heard or be able to present his/her side of the story; and (c) should be allowed to call witnesses if his/she so wishes. See **Dabner v S.A Railways and Harbours 1920 AD** at 598".

From the record and the submissions the following procedural issues are clear;

1. The charges were not linked to any provision of any code;
2. The committee is not a committee at all
3. The hearing is the rumblings of one person while the other members are spectators, and


4. S.I 145 applies to the appellant.


In the circumstances the application for review is sustained.

Disposition

31. The application for review is upheld. The proceedings have to be set aside. It is accordingly ordered as follows;

1. The application for review be and is hereby upheld.
2. The proceedings be and are hereby set aside.
3. The respondent be and is hereby ordered to rehear the proceedings if it so wishes, starting at the charging level.
4. The respondent shall complete the re-hearing within 30 days of this order or within such longer period as may be granted on good cause shown.
5. If the respondent fails to rehear the case within the prescribed time the applicant shall be considered to have been reinstated without loss of salary and benefits.
6. If reinstatement is no longer possible the respondent shall pay all salaries and benefits to the date of this order and thereafter damages in lieu of reinstatement as may be agreed between the parties, failing which agreement either party may approach the court for quantification.


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