Fred Makonese v Commercial Sugarcane Farmers Association of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/551/2016
HARARE, 13 JULY 2016 &
9 SEPTEMBER 2016
CASE NO LC/H/357/2013 (REV)
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/551/2016

HARARE, 13 JULY 2016 &			 CASE NO LC/H/357/2013 (REV)

9 SEPTEMBER 2016

FRED MAKONESE								APPLICANT

COMMERCIAL SUGARCANE						RESPONDENT

FARMERS ASSOCIATION OF ZIMBABWE

Before the Honourable G Musariri, Judge

For the Applicant	Ms H Makonese (Attorney)

For the Respondent     Mr C Ndlovu (Attorney)

MUSARIRI J:

The appellant worked for the respondent as an Administrator at Chiredzi. He was charged with misconduct. After a hearing he was dismissed from employment on the 13th May 2013. Thereafter he filed an application for review in this Court. The respondent opposed the application.

The grounds for review were threefold as follows:

“1.	The committee which biased a decision to dismiss the respondent had already been made the committee. The committee was then set to rubber stamp a decision which had already been reached.

2.	The committee did not find the applicant guilty, but it was the chairman who found the applicant guilty and solely dismissed the applicant.

3.	The committee grossly misdirected itself in failing to give reasons for its decision.”

During oral argument the applicant conceded that the second ground is just but an elaboration of the first ground. As for the third ground I consider that it lacks merit. Granted that the dismissal letter did not give specific reasons for the verdict. However upon receipt of the letter, the applicant did not request full reasons for the verdict. If he had done so and the respondent refused to grant same, then that could have been an irregularity.

That leaves the allegation of bias as the remaining ground for review. The allegation is elaborated in the applicant’s Heads of Argument as follows:

“15.	In the circumstances of this case, the danger of suspicion of bias cannot be said to be too remote, fanciful, far-fetched or entirely speculative as the respondent would want this court to believe. The minutes of the hearing of the applicant held at the respondent’s boardroom on Saturday 11 May 2013 at 0935 hour did not conclude that the applicant was guilt. Nothing was put on record to that effect. It was through the letter dated 8th January 2013 (See Annexture A) that the applicant came to know that he was dismissed and was found guilty. The question now is who found the applicant guilty of the alleged misconduct, the Executive Committee or the Chairperson of the respondent.

16.	The record of the hearing absolves the committee from such an inquiry and finding. The chairperson of the respondent pushed the committee to accept his pre-decision to dismiss the applicant. The hearing was illusory and a smoke screen of the already made and stamped decision of the chairperson of the respondent.

17.	It therefore goes without saying that there is a reasonable ground that there was bias in the manner the disciplinary hearing was carried out. The committee only deliberated on the issues and left the decision of the chairperson of the respondent without affording the applicant a fair hearing. This is a reviewable irregularity.”

The dismissal letter dated the 13th May 2013 is filed of record. It was written by the respondent’s chairman. It reads:

“Please take notice that the disciplinary committee after considering the seriousness of the misconducts displayed by yourself, you were found guilty on all counts.

The employer therefore resolved to dismiss you from work. Thank you.”

The underlining is for emphasis.

The chairman made it clear that it was the disciplinary committee which found the applicant guilty. In other words the chairman communicated the findings of the committee. Nothing on record contradicts the chairman’s word. The minutes of the hearing are also filed of record. A reading thereof shows a prima facie case against the applicant. It is not necessary in a review to analyse the evidence and determine whether it supports the verdict. Suffice it to say that the minutes tend to dispel the perception of bias against the applicant. With or without the chairman’s alleged bias, there was a basis upon which the applicant might be convicted. Whether or not the evidence meets the requisite standard of proof is a matter that could only be tested in an appeal rather than a review.

All in all I consider that the application lacks merit and ought to be dismissed.

Wherefore it is ordered that:

The application be and is hereby dismissed; and

Each party shall bear its own costs.

G Musariri

J-U-D-G-E