Gube Alec & Another v Rainbow Tourism Group (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/757/14
HELD AT HARARE 3RD JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/757/14

HELD AT HARARE 3RD JULY 2014			CASE NO LC/REV/H/03/14

& 5TH DECEMBER 2014

In the matter between:-

GUBE ALEC & ANOTHER					Appellants

And

RAINBOW TOURISM GROUP (PVT) LTD		Respondent

Before The Honourable L Hove, Judge

For Appellants		Mr  J Samukange (Legal Practitioner)

Mr E Samukange (Legal Practitioner

For Respondent		Mr C Kuhuni (Legal Practitioner)

HOVE, J:

This is an application for review.

The applicant was employed by the 2nd respondent in 2007.  On 7 August 2013, the applicant was transferred to New Ambassador Hotel as an acting Front Office Manager.  The appellant submitted that the substantive front office manager had then been suspended on allegations of various acts of misconduct.  He thus took over the running of the front office until

28 November 2013 when he was suspended by the substantive front office manager who had been reinstated in to her position on 28 October 2013.

The result was that there were now two persons in the position of a front office manager one reinstated and the other still in an acting capacity.

The appellant submitted that he approached the Human Resources Manager to enquire what would become of him since the substantive front office manager had been brought back.  He was told that he was to continue as the acting front office manager until further notice.

It was soon after that that he was suspended on 28 November 2013 by the front office manager and invited to attend a disciplinary hearing before the Human Resources Manager with the front officer manager as the complainant.

Appellant objected to being called for a hearing before this tribunal which he considered inappropriate.  He raised the issue with the Human Resources Manager who overruled this and other objections.  Applicant then made this application for review challenging the Human Resources Manager’s decision.

The issues raised in this review application are that’

The presiding officer ought to have recused himself since he was an interested party.

Ms Chirima could not be the complainant as she is an interested party.  She had an interest in the possible removal of a competitor since both of them were waiting to see in whose favour, the position of front office manager would be decided for between the complainant who had previously held that position and the acting front office manager.

Ms Chirima had no capacity to suspend the applicant since she was not applicant’s superior.  Applicant as acting front office manager reported to the General Manager.  This was before Ms Chirima was reinstated after her reinstatement, his position was not affected.  He was advised to continue as acting front office manager and was never advised that he would be reporting to Ms Chirima.  Chirima is alleged to thus have illegally suspended the applicant and hence the suspension is illegal, a nullity.

Applicant would not be able to receive a fair hearing and there would be bias against him.

The application was opposed and the applicant further challenged the

authority  of the depodent to the opposing affidavit arguing that she ought to have

“Clearly stated in her affidavit and exhibited proof that she is authorised to represent the company.  She ought to have averred that she was duly authorised to act for and on behalf of the company and show by company resolution that she has been duly authorised.”

Finally, the applicant challenged the fact that the Designated Agent had

opposed  the application thereby clearly exhibiting that he was colluding with 2nd respondent against him and acting to ensure that the applicant is removed from his position to pave way for Chirima’s unchallenged setting in into the position of front office manager.

The court will consider firstly whether or not there was likely to be bias.

It has not been disputed that when the applicant was appointed acting front office manager, the acting front office manager, Chirima, had been suspended on allegations of having committed acts of misconduct.  When she came back she assumed her former position when applicant was acting in that same position.   When the applicant queried, the human resources manager said the hotel was yet to decide who to keep in the position and was considering transferring Chirima to another hotel.  It is most probable that Chirima could have been biased against applicant in the conduct of the disciplinary charges against the applicant with a view to securing her former position and avoiding any possible transfer.

Where bias or potential bias is alleged, one does not need to prove actual existence of malice or turpitude the court is simply concerned with the view of a bystander.  In casu it is alleged that the Designated Agent and the complainant had colluded against the applicant.  Would an  innocent bystander believe that the applicant would get a fair hearing?  Was there a real likelihood of bias? The test is an objective one, it asks whether;

“There exists circumstances which may engender a belief in the mind of a reasonable

litigant that in the arbitral proceedings he would be at a disadvantage.”

The court in these cases will not allow anything that creates suspicion in the mind of the reasonable man.  Mr Justice  KORSAH JA  (as he then was) held that the test for bias, is an objective one based on impressions.   In the case of Leopard Rock Hotel Co. (Pvt) Ltd and Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 the Honourable Judge  stated that

“It is most undesirable that any arbitrator… should appear to be pitching camp with or rendering assistance to, one of the contestants to the dispute before him.  For the other party is likely to gain the impression that the arbitrator and his adversary are conspiring against him.  And such an impression would reinforce his belief that the arbitrator is biased against him.  See the remarks of MCNALLY JA in Blue Ribbon Foods Ltd v Dube N.O. & Anor 1993 (2) ZLR 146 at 148.  When the arbitrator makes common cause with one of the parties in such proceedings, any façade of justice is shattered.  The arbitrator is seen to have descended into the arena with the possible consequential blurring of his vision by the dust of battle.  Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.”

In yet another case GREENBERG J in City and Suburban Transport (Pvt)

Ltd v Local Board Road Transportation Johannesburg 1932 WLD 100 it was stated that

“The test (for bias) appears to be whether the person challenged has so associated himself with one of the two opposing views that there is a real likelihood of bias or that a reasonable person would believe that he would be biased.”

In this case, the Designated Agent acted, in opposing these proceedings

in a manner that confirms that he was not likely going to give the applicant a fair hearing.

In cases were allegations of procedural impropriety are made, the presiding officer whose conduct  is in question must avoid giving the impression in the mind of a reasonable person that he will likely not be fair.  By entering into the merits of the case and defending his decision, he also acts improperly.

In Blue Ribbon Foods Ltd v Dube N.O. and Anor 1993 (2) ZLR 146 the Supreme Court observed that

“In review proceedings where allegations of procedural impropriety or bias are commonly made… the presiding officer whose conduct is in question may if he wishes, file an affidavit to clarify such matters as he may wish to clarify and in a proper, though I would think exceptional case, he may be represented by counsel.  But only on that issue.  It is not for him to  enter into the merits of the case or to defend his decision.  That is the function of counsel for the respondent employer or respondent employee, as the case may be.”

In this case, the presiding officer’s affidavit states that the application

has no merit.  He seeks not to clarify issues but joins in the merits of the application.  He defends the decision that he made.  He ought to have left this for the 2nd respondent to deal with.  He therefore gives the impression that he was interested in the outcome of the disciplinary proceedings and that the proceedings may likely be decided against the applicant.  His conduct, I think, in the mind of a reasonable man, would give the impression that he was not going to be fair in dealing with applicant’s case

I am persuaded that the Designated Agent was likely going to be biased and not be able to give the applicant a fair hearing, that bias has been sufficiently established.

Allegations have been made that applicant never reported to Ms Chirima and Ms Chirima could not have had the authority to suspend the applicant.   The  facts and circumstances of this case make it probably true that applicant did not report to Ms Chirima.  The 2nd respondent alleges that applicant was appointed assistant front office manager but it is just a bold allegation.  There is nothing to support that averment.  On the other hand, the applicant has produced evidence that he was appointed the acting front office manager.  In view of this I find that the applicant was never an assistant front office manager but an acting front office manager.  In which case the suspension ought to have been by the applicant’s senior, his immediate boss, the one he reported to and not Ms Chirima.  The suspension was therefore a nullity.  Anything that flowed from it was also a nullity.  The court refers to the words of Lord Denning in Mcfoy United Africa Co. Ltd 1961 (3) All ER 1169 that

“If an act is void, then it is in law a nullity. It is not only bad but incurably bad.  There is no need of an order of the court to set it aside … and every proceeding which is founded on it is also bad and incurably bad.  You cannot put something on nothing and expect it to stay there.  It will collapse.”

I find further that the suspension was void, a legal nullity as there is no

evidence  that the applicant was ever appointed assistant front office manager and ever reported to Ms Chirima.  Ms Chirima was clearly an interested party and ought not to have acted as the complainant.  The facts show that she stood to benefit in the event that the applicant was found guilty.  The fact that they were employed in the same position, does create in the mind of a reasonable person fear of bias, that he would not get a fair hearing

The application for review must therefore succeed.  The suspension was a nullity.  If the 2nd respondent wishes to proceed with these proceedings against the applicant they are at liberty to start the disciplinary proceedings afresh.

Venturus & Samukange, appellant’s legal practitioners

Kuhuni Attorneys, respondent’s legal practitioners