Foster Tapfumaneyi v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/466/2013
HARARE ON 12TH SEPTEMBER, 2013
CASE
NO.
JUDGMENT NO. LC/H/466/13
---------




IN THE LABOUR COURT OF ZIMBABWE	     	JUDGMENT NO. LC/H/466/2013

HARARE ON 12TH SEPTEMBER, 2013                		CASE NO. LC/ORD/H/40/11

AND 27TH SEPTEMBER, 2013

In the matter between

FOSTER TAPFUMANEYI					–	Applicant

And

CITY OF HARARE						–	Respondent

Before The Honourable B.T. Chivizhe, J.

For Appellant:	Mr P. Mabundu (Legal Practitioner)

For Respondent: 	Mrs R.P. Chimhenga (Legal Division)

CHIVIZHE,  J.

The matter was placed before me as an urgent chamber application for an interdict.  In the order handed down on 21st June, 2011 the court granted the interdict as sought.  The respondent then sought for leave from this court to appeal to the Supreme Court.  Leave was granted.  At the Supreme Court the Respondent failed to prosecute its appeal in the absence of this Court’s reasons for the order.  Letters were written seeking for the reasons.  The letters somehow got misplaced in the Registry.  The record was eventually located and referred to myself in July 2013 with a request for reasons for the order granted on 12th of May 2011.  Any inconvenience to the parties is sincerely regretted.  The following are my reasons for the order granted.

The material background facts to the matter are as follows:

The Applicant in this matter was an employee of the Respondent employed in the Public Safety Department.  He absented himself from duty from 3 November 2008 to 23 February 2009.  The Respondent’s Human Resources Director then issued a memorandum dated 23rd February 2009 to all Heads of Department not to allow employees who had absented themselves from duty to resume work.

The Applicant was not served with an individual suspension letter.  The Respondent used the memorandum that was issued by its Human Resources Director as suspension letter.

The Applicant remained on suspension for some time.  The matter was then referred to arbitration.  At arbitration Respondent conceded that the suspension was unlawful on the basis that suspension was not done in terms of the relevant Code of Conduct.  The parties then entered into a consent order dated 16th of September, 2009 in terms of which Respondent was directed to reinstate Applicant to his original position without loss of salary and benefits with effect from February, 2009.  The Respondent could also exercise the option to reinstate disciplinary proceedings provided this was done in a procedurally correct manner.

It was common cause the Respondent did not hand down the verdict of the disciplinary committee.

The Applicant resumed work at some point and was paid all his outstanding salaries and benefits with effect from February 2009.  The Applicant was then served with a notice to appear for a disciplinary hearing on the 16th of March, 2011.  On receiving the notice of set down the Applicant then filed the urgent chamber application with the Labour Court.  In his founding affidavit Applicant averred that the hearing having been conducted the Respondent should hand down its verdict.  The Applicant was therefore seeking the following in relief;

The hearing scheduled for the 24th of March 2011 be and is hereby declared to be unlawful.

The Respondent be and is hereby interdicted from proceeding(s) with the hearing scheduled for 24th of March 2011.

That the Respondent should pay costs of this application on a legal practitioner and client scale.

The application was opposed by the Respondent on the basis that firstly that as the hearing had taken place before the consent order granted by the Arbitrator the hearing was consequently a legal nullity.  It was Respondent’s second submission that as the disciplinary hearing had been based on a suspended letter dated 30th September, 2009 which had also in turn referred (erroneously) to the suspension letter dated 21 May 2009 which letter had ben quashed by the Arbitrator as a legal nullity leading to the consent order of the 16th of September, 2009 it followed that the disciplinary proceedings on the 12th of October, 2009 were also consequently a legal nullity.  The Respondent relied on Mugwebie vs Seed Co. and Dalny Mine vs Banda.  The third reason advanced by the Respondent was that the disciplinary hearing of the 12th of October, 2009 having been conducted in error due to an administrative oversight had then been abandoned by the Respondent.

It was clear to the court that the Respondent’s first submission that the disciplinary hearing of 12th October, 2009 had been convened before the consent order was devoid of the truth.  The correct facts were that the hearing took place on 12th October, 2009 after the consent order had been granted by the Arbitrator on 16th of September, 2009.  The Respondent could not rely on that ground to justify its nullification of the proceedings.

It was also the court’s view that given that the Labour court’s mandate under the Labour Act [Chapter 28:01] which is to dispense justice between the parties in a fair and equitable manner giving effect to fundamental rights of employees in this case the Respondent had treated the employee unfairly.  It was my view that it was  unfair for the employer to have convened disciplinary proceedings on the 12th of October, 2009 and then without advising the employee abandon those proceedings before giving judgment, only to then after 17 months of the employee’s reinstatement notify the employee of yet another disciplinary hearing based on the same circumstances.  The Applicant, during that period according to his submissions had been clearly waiting for judgment.  It was purely on the principles of justice and fairness I had then granted the interdict as sought.

Maganga and Company Legal Practitioners, for the Applicant.

Legal Division of the City of Harare, for the Respondent.