Godwin Takaniwa v Minister of Health and Child Care & Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LCH54/24
HELD AT HARARE 25TH JANUARY 2024
CASE NO. LC/H/891/23
AND 19 FEBRUARY 2024
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 25TH JANUARY2024 AND 19 FEBRUARY 2024

In the matter between:

GODWIN TAKANIWA

And

MINISTER OF HEALTH AND CHILD CARE

And

JUDGMENT NO. LCH54/24

CASE NO.LC/H/ 891/23

APPLICANT

1ST RESPONDENT

HEALTH SERVICE COMMISSION	2ND RESPONDENT

BEFORE HONOURABLE	MAKAMURE JUDGE

For The Applicant	:IN PERSON

For Both Respondents	:W MATSIKA (LEGAL ADVISOR)

MAKAMURE J:

This is an application for review against the proceedings of the Respondent’s disciplinary committee that was conducted on 14 September 2022.The applicant was subsequently dismissed on 15 September 2022.

BACKGROUND

The Applicant was employed by the Respondent as a promotions officer stationed at Mutawatawa District Hospital. On 26 August 2022 the Applicant received a letter of suspension from employment for allegations of misconduct, in that he failed to account for USD 680.00 which he had requested in respect of ‘TCV’ stakeholders meeting. Applicant was tried and found of guilty of theft and was subsequently dismissed from employment. Aggrieved by the decision, Applicant appealed internally, however, the decision of the disciplinary hearing was upheld at appeal level.

Aggrieved by the way the proceedings were conducted, applicant has approached this court for review. The applicant contends that a wrong code of conduct was used to conduct his disciplinary hearing. Applicant in his heads of argument submitted that two different codes of conduct were used. That is to say according to the charge sheet submitted, Applicant was charged using the Labour (National Employment Code of conduct) Regulations S.I. 15/2006 (S.I.15/06). Applicant was tried and found guilty using that code of conduct.

In the disciplinary committee verdict, Respondent then advised the Applicant that if need be, he was to approach the Health Service Board for appeal. This avenue according to the applicant is not available in terms of the S.I. 15/2006 but rather under Health Service Regulations Statutory Instrument S.I. 117/2006 (S.I.117/06).

In opposing the Application for review the respondent argued that S.I. 117/2006 was not used and was at the time inapplicable because it was not yet registered. Respondent argued that at the time of the hearing S.I. 15/2006, was applicable because all the procedures concerning performance appraisals, grading of employees and resignation were done in terms of S.I. 15/2006.

It is evident from the papers filed of record that the applicant was charged with violating ss 4(a) and s4(d) of S.I. 15/2006. However, upon receiving the determination of the disciplinary committee, the applicant was informed that if he intended to appeal against the dismissal, he was to approach the Health Service Board. This procedure for appeal is not provided for in terms of the above-mentioned statutory instrument, in terms of which the disciplinary hearing was conducted.

Respondent thus argued that the S.I. 117/06 was not applicable at the time the hearing was held but only came in force under General Notice 1 of 2023 to make S.I. 117/06 applicable to workers in the health service industry. Assuming that was the position, the court is of the view that there is still an irregularity in view of the fact that the law must be clear. The use of two different employment codes during one disciplinary process is to say the least, both undesirable and confusing. A person charged with an act of misconduct should have a clear understanding of the charges leveled against him, and should be given enough information and procedures so as to allow him to propel a defence for himself .

THE LAW AND ANALYSIS

The court is being called upon to determine whether the disciplinary proceedings were done in accordance with the law and in a procedurally correct manner. The starting point is s69 of the Constitution of Zimbabwe, 2013(the Constitution) which provides as follows:

“69. Right to a fair hearing

Every person accused of an offense has the right to a fair and public trial within a reasonable time before an independent and impartial court.

In the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law.”

The right to a fair hearing is a fundamental right enshrined in the Bill of Rights of the Constitution which by operation of s2 of the same Constitution is the supreme law of the land. In this regard any law, custom or practice which violates such a constitutionally recognized right is null and void. The court finds that the applicant’s right to a fair hearing was violated by the procedural irregularities arising from the manner in which the disciplinary hearing was conducted. See Thousand Sadziwani v Natpak (Private) Limited SC6/17. It is trite that not all procedural irregularities vitiate disciplinary proceedings . Air Zimbabwe (Private) Limited v (1) Chiku Mnensa (2) Mavis Mwarweye SC89/04. However, charging an employee using an unclear law or code of conduct, or two different codes is a gross irregularity which vitiates all the proceedings.

The respondent cannot approbate and reprobate at the same time. Respondent cannot charge the applicant using S.I. 15/2006 then on appeal apply S.I. 117/2006 in making its case against the same applicant. See Sibongile Ndlovu v Guardforce Investments (Private ) Limited & Another SC31/21. Clearly the respondent was trying by all means to dismiss the employee by mixing two different codes of conduct to its benefit and the detriment of the applicant. The disciplinary proceedings were conducted on the basis of The National Code of Conduct. On appeal the respondent then provided a non-existent procedure. In Chikomba Rural District Council v Pasipanodya SC 26/12 the Supreme Court had this to say:

”Both the Act and the Regulations are clear that the National Employment Code of conduct contained in those regulations can only be invoked where there is no registered code of

conduct. Since it is common cause that the appellant does have a registered code of conduct, the termination of a contract of employment of any of its employees had to be in terms of its code of conduct and not the National Employment Code of Conduct.”

I respectfully associate myself with what the Supreme Court said above.

Assuming that S.I. 15/2006 was the correct code, it does not have the procedure that was written on the finding of the disciplinary committee after the hearing was conducted. Alive to this position, the respondent, after concluding its findings and penalizing the applicant with dismissal, advised the applicant to (at page 115/131 of the record) appeal “to the Health Service Board within a period of Seven(7) working days.” It is s51 of the Health Service Regulations which provides for appeal to the Board. In fact, the Health Service Regulations provide a detailed disciplinary procedure (PART VIII, ss42-52 thereof). Further, if the contention on behalf of the respondent that S.I.117/06 was then not applicable is to be believed, why did the respondent advise the applicant to appeal using a code of conduct which was not registered? The respondent explains this by saying that S.I. 117/06 was not registered at the material time. Once again, the respondent is approbating and reprobating. This is not acceptable. The respondent was not clear as to which code of conduct to use to charge the applicant, however based on the submissions by Applicant, it is the court’s view the that S.I. 15/2006 did not apply to the applicant. Even if S.I. 117/2006 was purportedly not registered at the time, it is safe to conclude that the proceedings should have been done under Public Service Regulations (S.I. 1/2000) which governs civil servants as Applicant was then employed in the civil service.

Our jurisdiction recognizes the principle of certainty. The principle requires that the law must be clear, precise and unambiguous, and its legal implications foreseeable. The law must be worded in a way that is clearly understandable by those who are subject to it. The court is of the view that the proceedings before both the committee and the appeal were fraught with irregularities in that the applicant was charged on the basis of a code of conduct which was not applicable to him. They were therefore flawed hence making the proceedings which ensued a nullity.   .

The court finds that the respondent has no leg to stand on. What it tried to do, was clearly enunciated in the case of Mcfoy v United Africa Company LTD 1961 (3) ALL ER 1169 (PC) 1169 at 1172 , that is:

“… every proceeding which is founded on a legal nullity is also bad and incurably bad. You cannot put something on nothing and expect it to stay there, it will collapse.”

DISPOSITION

Having perused the papers and hearing parties, the Court is of the view that the application is merited as the applicant has successfully motivated in his grounds of review. The status of the parties before the unprocedural dismissal must therefore be restored. In Air Zimbabwe Corporation v Mlambo 1997 (1) ZLR 220 the Supreme Court held that :

”…as soon as there is a finding that the disciplinary findings were a nullity, it must follow that the employee is reinstated. After all, the basis of his dismissal has been set aside. So he has not been properly dismissed.”

See also Zimbabwe United Passenger Company v Beaular Mashinge SC21/21. The application for review succeeds.

Accordingly, it is ordered as follows:

The application for review be and is hereby granted.

The decisions of the Disciplinary committee and appeals committee be and are hereby set aside.

The parties are free to carry out a disciplinary hearing de novo using the applicable code of conduct which is S.I. 117/2006.

There shall be no order as to costs.