Dr Jabulani Kuchena v The Scientific and Industrial Research and Development Centre (SIRDC)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/21/2016
HARARE, 23 NOVEMBER 2015 &
CASE NO LC/H/REV/29/2013
22 JANUARY 2016
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IN THE LABOUR COURT OF ZIMBABWE	           JUDGMENT NO LC/H/21/2016

HARARE, 23 NOVEMBER 2015 &			  CASE NO LC/H/REV/29/2013

22 JANUARY 2016

In the matter between

DR JABULANI KUCHENA					    APPLICANT

Versus

THE SCIENTIFIC AND INDUSTRIAL 				   RESPONDENT

RESEARCH AND DEVELOPMENT

CENTRE (SIRDC)

Before the Honourable Maxwell & Murasi JJ

For the Applicant	  J Majatame  (Legal Practitioner)

For the Respondent      S Hwacha (Legal Practitioner

MURASI J:

This is a typical case where the wheels of justice grind at a very slow speed indeed.

On 6 February 2008 President Kachambwa (as he then was) issued an order for the reinstatement of the applicant with an alternative to be paid damages in lieu of such reinstatement. The respondent thereafter wrote a letter to the applicant stating that he would be reinstated as from 1 October 2008. It is alleged that the applicant did not report for duty as instructed and, the respondent proceeded to hold a disciplinary hearing in the applicant’s absence culminating in his dismissal. The applicant takes issue with the holding of the disciplinary hearing and has approached this court for relief.

The applicant’s grounds are couched as follows:

That the respondent had no jurisdiction to conduct a disciplinary hearing without validly reinstating the applicant;

That the respondent’s actions were actuated by both malice and bias; and

That there were gross irregularities in the whole disciplinary process.

Mr Majatame for the applicant stated that he largely abided by the documents filed of record. He stated that the respondent did not comply with the order of JUSTICE KACHAMBWA. It was submitted that the applicant had written to the respondent that it would comply with the Labour Court’s order but the respondent had not done so. It was only when the respondent was served with court process from the High Court that it reacted with the letter of reinstatement. Mr Majatame further submitted that the letter of reinstatement advised the applicant to report for duty on 1 October 2008 but it was only served on the applicant’s legal practitioners on 7 October 2008. It was further argued on behalf of the applicant that the letter of reinstatement did not address the issues of arrear salaries and benefits. Mr Majatame stated that the respondent had not validly reinstated the applicant and therefore could not proceed to hold a disciplinary hearing charging the applicant with absenteeism. It was further stated that the notice of hearing was served only three (3) days before the hearing and the applicant’s legal practitioners had only received it on the day before the hearing and it was therefore not adequate notice to the applicant. It was further stated that the respondent clearly exhibited mala fides in the way the matter was handled.

Mr Hwacha for the respondent stated that an instruction was given to the applicant to report for duty and this he did not do. It was submitted that the fact that the letter was delivered on 7 October 2008 did not show any mala fides. It was argued that there was complete silence from the applicant after the instruction to report for duty. Mr Hwacha further submitted that the applicant was actually employed during the period in question and must be deemed to have repudiated his contract of employment. It was argued that the order by JUSTICE KACHAMBWA did not impose obligations on the respondent alone as the applicant should have applied for damages in lieu of reinstatement. As far as the grounds of review were concerned, it was argued that the decision was a default judgment and the applicant should have applied for a rescission of that decision. Mr Hwacha further stated that the tribunal a quo had not dealt with the issues that the applicant was raising on review. It was further submitted that the notice to attend the hearing had been served at the applicant’s address of service in his absence but on a responsible person.

It is common cause that JUSTICE KACHAMBWA’s order was for reinstatement without loss of benefits with an alternative for payment of damages in lieu of such reinstatement. This order was not appealed against. It is therefore extant. The applicant’s first ground of review is that the respondent could not institute the disciplinary proceedings because the respondent had not “validly reinstated” the applicant. It is pertinent to consider the facts and events in order to make a determination of whether the applicant was reinstated.

After the judgment of the Labour Court, the applicant’s legal practitioners requested that the applicant be reinstated. Letters dated 3 April 2008 and 23 April 2008 were addressed to the respondent’s then legal practitioners, Messrs Chihambakwe, Mtizwa & Partners. In response, the legal practitioners informed the applicant’s legal practitioners that they were consulting with the respondent. A reading of the record shows some interesting features in the matter. There are two letters addressed to the respondent’s lawyers by one Mrs Mafumo.

The first letter dated 9 April 2008 reads as follows:

“Please be advised that the Centre cannot reinstate Dr Kuchena and suggest that we appeal against the Labour Court’s decision to reinstate him.”

The letter dated 9 May 2008 from the same Mrs Mapfumo reads as follows:

“We wish to take your opinion that we cannot appeal. However reinstatement is no longer possible and would prefer to pay damages in lieu thereof.”

Mrs Mapfumo is from the Human Resources Department. This information was not passed to the applicant’s legal practitioners. The latter continued to threaten the respondent with legal action based upon its failure to reinstate the applicant. That the respondent was not in a position to reinstate the applicant was information that was withheld from both the applicant and his legal practitioners. The applicant’s legal practitioners proceeded to approach the High Court and served process on the respondent. Two interesting events happen. The respondent “suddenly” has a change of mind and decides to reinstate the applicant. The second startling event is that the letter for the applicant’s reinstatement is addressed to Messrs Atherstone & Cook. These were not the applicant’s legal practitioners. The letter to the applicant’s correct legal practitioners was only served on 7 October 2008. The applicant’s legal practitioners responded to this letter laying down specific terms which were to accompany this reinstatement. These demands are contained in a letter dated 20 October 2008 addressed to the respondent’s legal practitioners. Apart from the demands that are made the letter unequivocally states:

“Once you comply with these requests, our client will immediately report for duty. Our client is anxious to continue with his job.”

The response from the respondent’s legal practitioners dated 21 October 2008 does not address the issues raised by the applicant’s lawyers. Instead the letter seeks to protect the integrity of the lawyer dealing with the matter rather than address issues of reinstatement raised by the applicant. What is the law on unfair dismissals? The law enjoins the court to order the employer to reinstate the employee. Reinstatement means that the employee will be entitled to resume employment and in addition become entitled to his wages and any other moneys that he would have been paid during the period of his unfair dismissal. In casu, the applicant clamoured for his reinstatement but the respondent ignored these calls. In fact, correspondence referred to elsewhere in this judgment shows that the respondent was unwilling to go the route of reinstatement. The respondent’s lawyers address the letter of reinstatement to the wrong legal practitioners after being called to attend to the High Court. The respondent does not meet the demands for a valid reinstatement as demanded by the applicant. The question to be answered is whether the applicant was “validly reinstated” in the circumstances. The facts and events outlined above militate against making such a finding. This amounted to a “fictional reinstatement”. The respondent had shown an unwillingness to reinstate and was only jolted into action by the process that emanated from the High Court. Could the respondent therefore validly institute disciplinary proceedings against a person who had not been reinstated? I think not. The respondent clearly had to properly reinstate the applicant before attempting to discipline him. He was beyond reach.

The issue of whether the respondent served the applicant with the process to attend the hearing should not detain the court. The facts and events show that the respondent clearly did not want or anticipate the applicant to attend the proceedings. The process was served at the applicant’s mother’s residence and the respondent argues that this was the applicant’s address of service. I do not think this is correct. The last correspondence the respondent had received came from the applicant’s legal practitioners. Why would the respondent then refer any other process to a different address. As the matter stands, the mother took the letter to the applicant’s legal practitioners who made frantic efforts to have the matter postponed in order to allow them time to prepare for the hearing. The respondent alleges that the information was late in coming.

In any event, would that notice served on the applicant’s mother to attend within forty-eight days have been taken to be adequate notice in the circumstance”? It appears that the respondent chose to serve the process on a different address when it suited its intentions.

I wish to address one issue that was raised by Mr Hwacha that the applicant was working in South Africa and should be taken to have repudiated his contract of employment. The applicant had been dismissed by the respondent. The Labour Court had ordered the applicant’s reinstatement which the respondent was reluctant to do. This means that the applicant remained dismissed. The court has already stated that the applicant was not validly reinstated. The court is of the view that in the circumstances it cannot be said to be a repudiation of contract, but mitigation of losses.

In Passmore Malimanjah v Cabs SC 319-05 the Supreme Court held that the Labour Court was a court of equity, concerned not with the formalities and technicalities of the legal profession but with achieving just and equitable resolution of disputes between the parties. In casu, the respondent did not comply with the order of the Labour Court. It sought to do so when the applicant was enforcing his rights but did not validly do so. The matter has been pending for a long time. There has been an inordinate delay in the resolution of the dispute. The parties should go back to the original order of JUSTICE KACHAMBWA. It appears the respondent is disinclined to take the applicant back and both parties should take a pragmatic approach in resolving the issue.

In conclusion, the court is of the view that the application for review is with merit and should succeed.

The court makes the following order:

The application for review, being with merit, succeeds.

The decision of the respondent’s disciplinary committee of 26 June 2009 be and is hereby set aside.

The respondent is to comply with the order of President Kachambwa dated 6 February 2008.

The respondent to meet the applicant’s costs in this application.

MURASI J:       _________________________

MAXWELL J:    ________________________   I agree.

Gama & Partners, applicant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners