Johnson Chindanya v Schweppes Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/387/14
HARARE ON 22nd MAY, 2014
CASE NO. LC/H/743/13
AND 4 TH
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/387/14

HARARE ON 22nd MAY, 2014				           		  CASE NO. LC/H/743/13

AND 4TH JULY , 2014

In the matter between

JOHNSON CHINDANYA				–	APPLICANT

And

SCHWEPPES ZIMBABWE			-	RESPONDENT

Before The Honourable L. Hove  J.

For Applicant     :	Mr S. Chako (Legal Practitioner)

For Respondent :	Mrs R. Matsika (Legal Practitioner)

HOVE J,

The background facts of this matter are that the Applicant was employed by the Respondent as a Forklift Driver. Allegations of misconduct were raised against him and he was found guilty by a Disciplinary Committee set up in terms of the relevant Code of Conduct. He appealed to the Appeals Committee which upheld the decision by the Disciplinary Committee. This is an application for review of the decision by the said Appeals Committee.

The Applicant alleges that the Appeals Committee did not apply its mind to the issues raised and argued before it. He alleges that the Appeals Committee, after hearing the matter, requested for a legal opinion from the Respondent’s legal practitioners who then wrote an opinion which essentially was adopted as the decision of the Appeals Committee.

The Respondent argues that the Appeals Committee was entitled to seek legal advice on the legal issues raised. It was submitted that the Appeals Committee was merely seeking clarification on the issues from a relevant expert in the area where the clarification would serve the important purpose of guiding the Appeals Committee in making the decision.

This is my opinion is an admission by the Respondent that after hearing the matter, the Appeals Committee formed no opinion of its own on the issues raised. It required certain technical or legal issues raised to be clarified. I see nothing wrong in the Committee’s decision to seek to understand and clarify the issues raised by the Applicant in the Appeal. What was wrong in my view is that the Applicant was not given an opportunity to comment on that opinion. Once the Appeals Committee realized that it needed to clarify certain issues, it ought to have advised the parties on the intended course of action it wished to take and allowed either of the parties to comment or respond to the opinion especially since the Committee had realized that it intended to rely on that opinion in making its decision. Fairness demanded that the Applicant be given a chance to react to the opinion.

The Appeals Committee therefore erred in failing to hear the Applicant in relation to the legal opinion before relying on the opinion in making its decision. There was therefore an irregularity in the decision making process.

Once the Court is of the view that there is an irregularity, as I have found in this case, it has two options i.e. either to remit the matter to the Appeals Committee for the matter to be conducted in a technically correct manner or to decide the matter itself on the basis of the record before it , that is in situations where it can, on the basis of the record before it, decide the matter on the merits.

This is the position of our law as outlined in the case of Dalny Mine vs. Banda 1999 (1) ZLR 220.

Where the Court stated that as a general rule, it is undesirable for labour matters to be decided on the basis of procedural irregularities. This general rule was not to say that procedural irregularities should be ignored but that they should be put right by either remitting the matter back to be dealt with in a procedurally correct manner or hear the matter itself thereby removing any prejudice that may have been suffered by the other side.

In casu, the record does not contain the Applicant’s comments on the views expressed in the legal opinion. The Court is therefore not in a position to decide the matter on its merits on the basis of the record before it.

Accordingly the matter will have to be remitted back to the Appeals Committee to enable it to place the legal opinion before the Applicant and hear his response to it before deciding the matter on the merits.

In the result, the application for review succeeds.

The matter be and is hereby remitted to the Appeals Committee to enable it to hear the Applicant’s response to the legal opinion first before deciding the matter.

Each party will bear its own costs.

Nyikadzino, Simango & Associates – Applicant’s legal practitioners

Wintertons – Respondent’s legal practitioners