Joram Misheck Moyo & 2 Ors v Fidelis Matanhire N.O. & Hurungwe Rural District Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/56/2020
HARARE, 14 JANUARY 2020
CASE NO. LC/H/REV/86/19
AND 28 FEBRUARY 2020
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IN THE LABOUR COURT OF ZIMBABWE	           JUDGMENT NO. LC/H/56/2020

HARARE, 14 JANUARY 2020			           CASE NO. LC/H/REV/86/19

AND 28 FEBRUARY 2020

In the matter between:

JORAM MISHECK MOYO					1ST APPLICANT

KAROL MUTENGA						2ND APPLICANT

JACKSON MASHINGE						3RD APPLICANT

AND

FIDELIS MATANHIRE N.O.					1ST RESPONDENT

HURUNGWE RURAL DISTRICT COUNCIL			2ND RESPONDENT

Before The Honourable Murasi J

For the Applicants			Mr J. Mambara

For the Respondents 			Mr A. Mufari

MURASI J:

Applicants were employed by the 2nd respondent in various managerial capacities. There were several investigations carried out upon the 2nd respondent. The Zimbabwe Anti-Corruption Commission and the Criminal Investigation Department carried out separate investigations. The latter’s investigation culminated in the arrest of the applicants and their placement on remand at Chinhoyi Magistrates’ Court. 2nd respondent proceeded to suspend the applicants which suspension hinged on the criminal matter filed with the court. The applicants were subsequently acquitted.

Meanwhile the Ministry of Local Government, Public Works and National Housing also instituted investigations in respect of 2nd respondent. The Ministry recommended that the applicants be charged with misconduct. 2nd respondent’s officers and councillors were not agreed on what procedure to take as regards the forum under which applicants were to be disciplined. In the end, it was decided that 1st respondent preside over the matter. 1st respondent presided over the matter. The applicants were found guilty and dismissed from employment. The applicants are dissatisfied with the decision and have approached this court on review.

The applicants’ grounds for review are listed as follows;

1.	Absence of jurisdiction on the part of the Disciplinary Authority.

2.	Charges preferred using the wrong code of conduct.

3.	Interest in the cause and bias on the part of the adjudicating authority.

4.	Gross irregularity in the decision of the Disciplinary Authority.

5.	Disciplinary proceedings carried out outside the time limits when the matter should have been referred to the labour office.

At the commencement of oral submissions, Mr Mambara raised the issue that applicants had made a separate application for 2nd respondent to be compelled to produce the record of proceedings. He said this application had not been dealt with. He further stated that there was a person taking minutes during the hearing and thus a record should be available. Mr Mufari opposed the application stating that what 2nd respondent had availed was the complete record. He further submitted that applicant’s counsel had not identified what was indeed missing from the availed record. The court was of the view that applicants had not identified what was missing from the availed record. Further, the applicants had not stated that they had not been able to defend themselves as a result of the incomplete record and where thus prejudiced. There were no such averments and the court dismissed the application for lack of merit.

Mr Mambara raised another issue concerning the form used by the respondent in filing their responses. It was alleged that respondents had used Form LC 3 instead of Form LC 2. He argued that such non-compliance with the Rules of Court should attract the striking off of the response from the record. Mr Mufari argued that a look at forms in S. I. 250 of 2017 showed Form LC 2 relates to responses to appeals, whilst form LC 3 was the correct form for responses in reviews. This issue was not contested by the applicants’ legal practitioners. The court is of the view that respondents’ counsel made the correct observations and as such applicants’ assertions in this respect should be dismissed.

On the merits, Mr Mambara submitted that the Disciplinary Authority lacked jurisdiction to hear the matter. It was averred that applicants’ conditions of service were contained in 2nd respondent’s Code of Conduct. Mr Mambara referred to the fact that it was recorded that the Code of Conduct applied to all employees including managerial employees. Mr Mambara further stated that 2nd respondent’s code of conduct had been in use since 1998 and as late as 2018 it was still in use as a matter was filed and heard before the court in terms of the code of conduct. To this end he referred to the matter of Prisca Potera v Hurungwe Rural District Council LC/H/327/18 which was before Makamure J. He argued that in this case no issues as to the applicability of the Code of Conduct were raised.  He stated 2nd and 3rd applicants’ contracts of employment were made in terms of 2nd respondents code of conduct. He referred the court to pages 41 to 46 of the record. As far as the 1st applicant was concerned, Mr Mambara referred to precedent cited in paragraph 29 of the applicants’ heads of argument and stated that the Supreme Court had dealt with a similar case in Chikomba RDC v Pasipanodya 2012 (1) ZLR 577 (S). To this end he argued that where there is a Code of Conduct, the agreement should show the set – up of a disciplinary committee. He further argued that in casu, the disciplinary committee that heard the matter was not the one permitted in terms of the Code of Conduct.

Mr Mambara also referred to pages 96 and 98 of the record and stated that respondents were aware that the course of action taken to appoint the Disciplinary Authority was wrong.

As far as the 2nd ground for review was concerned, Mr Mambara submitted that the issues covered in the 1st ground for review on jurisdiction were sufficient.

In the 3rd ground for review, Mr Mambara referred to the Chairperson’s evidence which was favourable to the applicants. He stated that the Disciplinary Authority ignored this piece of evidence and the record does not show where it got the evidence to convict the applicants. The Court was also referred to minutes of 2nd respondent’s meetings where the Chairperson had been chided for supporting the applicants and writing a letter to the Minister complaining about the hearing.

The 4th ground of review was said to show the disparity in the treatment of the applicants and other employees who were facing similar allegations. Mr Mambara informed the Court that of the four employees involved in the Procurement Committee, two were given final written warnings and the other two were dismissed. He referred the court to the parity principle. In this score, Mr Mambara argued that the Disciplinary Authority did not have the mandate to dismiss the applicants but was supposed to make recommendations to 2nd respondent. He said this was shown in 2nd respondent’s minutes where councillors had queried why they had not been informed or consulted when letters of dismissal were issued to the applicants.

In the 5th ground for review, Mr Mambara submitted that the hearing was done outside the stated timeframe in the Code of Conduct. He stated that the fact that the letters of suspension were premised on the outcome of criminal proceedings was an irregularity. As to the findings of the Disciplinary Authority, Mr Mambara stated that the Chairperson, in evidence, had revealed that there was no gross inefficiency and it was therefore surprising that the Disciplinary Authority had proceeded to find the applicants guilty. He said that in the light of these irregularities the application should be granted.

In submissions, Mr Mufari, for the respondents stated that the answer to applicants’ 1st and 2nd grounds of appeal lay in section 101 (1) (b) of the Act. In this respect he submitted that the NEC had a registered Code of Conduct and that the law provides that where there is such code, it should be utilized. Where such a code does not exist, the National Code should be used. Mr Mufari went on to state that the NEC Code did not apply to applicants in terms of disciplinary issues. He said though the applicants were covered in terms of 2nd respondent’s Code of Conduct the said Code had not been submitted to the NEC for approval in terms of section 101 (1) of the Act. He stated that 2nd respondent should have submitted its Code for approval but had not done so. He made the concession that 2nd respondent had erred in this regard. He however insisted that in the current scenario, 2nd respondent was justified in using the National Code in preferring charges against the applicants.

As far as the 3rd ground for review was concerned, Mr Mufari submitted that no evidence of bias had been adduced by the applicants. In respect of the 4th ground, it was argued that the parity principle should not be utilized as the Disciplinary Authority had weighed the mitigation and aggravation before coming up with an appropriate penalty. As to the 5th ground, he submitted that the internal code was not supposed to apply and 2nd respondent was correct in using the National Code.

The factual disputes emanating in this case are not many. Most of the issues are common cause. The main issue to determine in this matter is whether the 2nd respondent and by extension, the 1st respondent, were correct in suing the National Code to charge the applicants.

It is important to look at the genesis of the utilization of the National Code. In minutes of a meeting held on 24 June 2019, the following can be gleaned:

“The Acting Chief Executive Officer gave (a) background of the proceedings(s) of the case involving 3 executive staff and he further explained that the disciplinary hearing according to council’s code of conduct is comprised of 3 management staff members and 3 workers’ committee members.

…

It was also noted that the current council code of conduct is silent on situations where misconduct is levelled against the Chief Executive Officer since lower level staff cannot preside over a matter involving their superior.”

The above shows that the use of the 2nd respondent’s Code of Conduct was deliberated upon with misgivings on how the Chief Executive officer was going to be treated. The Acting Chief Executive Officer made the following observations:

“He also highlighted that Council should come up with a new Code of Conduct since the existing one was crafted and registered in 1998 and is now outdated.”

The suggestion was made that the committee should present its findings to the full council so that the Administration and Human Resources Development Committee be given the mandate to deal with the matter.

A reading of the above minutes shows that the clear intention was to use the Code of Conduct and the Committee was to be comprised of members of the committee responsible for Administration and Human Resources. A reading of the record shows that this route was abandoned through legal advice and the use of the National Code was advocated. The charges were “in line with Ministerial recommendations.” The latter part remains obscure.

Mr Mambara argued that this was in fact an irregularity. He stated that applicants’ employment contracts clearly referred to the 2nd respondent’s Code of Conduct. A reading of these contracts reveals the following:

“(a)	Employment shall be in accordance with the Hurungwe Rural District Council Conditions of Service and Code of Conduct registered with the Ministry of Labour …”

The above refers to contracts in respect of 2nd and 3rd applicants. 2nd applicant’s contract is stated to be effective from 1 December 2009 and 3rd applicant’s contract is said to be effective from 1 May 2014. This is well after he NEC Code came into effect. In terms of its application, 2nd respondent’s code provides:

“The code shall apply to all Hurungwe Rural District Council employees including managerial employees.”

Clause 11 (eleven) prescribes the “Inquiry Procedure” where steps are taken to bring an employee to answer for misconduct. 11.4 provides:

“If any allegations of misconduct in terms of Schedule one (1) of this code is substantiated, the disciplinary action to be taken ‘against’ an offender shall be in accordance with that relevant Schedule under which the misconduct finally falls and which action(s) are submitted in Schedule 2 and 3 except for minor offences.”

It is critical to note that the procedure is well elaborated. I have already stated that applicants’ contracts of employment embodied the code of conduct as part of the Agreement. There is no mention of the NEC Code. It is conceded by 2nd respondent’s counsel that it was 2nd respondent’s oversight not to forward the code of conduct for approval. Section 101 (ib) does not state that the existing code should be amended. It requires approval. Was the 2nd respondent correct in utilizing the National Code? The answer should be in the negative. Mr Mambara referred to a matter which was heard in this court in 2018. 2nd respondent did not raise the issue of an ineffective Code of Conduct then. The record shows that 2nd respondent used the National Code when it had a Code of Conduct in place. That Code of Conduct prescribes certain procedures to be taken before the hearing. This is in terms of Clause 11. Clearly, 2nd respondent did not follow those procedures when dealing with the applicants. The Disciplinary Authority was not constituted in terms of the Code of Conduct. I should harken to mention that “Disciplinary Committee” is defined in the Code of Conduct.

In Mugwebie v Seed Co Ltd & Anor 2000 (1) ZLR 93 (S), Sandura JA (as he then was) dealt with a similar matter where the employer had not applied and followed the Code of Conduct at the workplace. As a result, the procedure followed was clearly different from what was prescribed in the Code of Conduct. His first observations at p 96 D – E were as follows:

“In the first place, the appellant was suspended by the company’s marketing manager who was not the company’s designated officer. This was in breach of para 4.2. of the code, which provides that it is the designated officer who suspends an employee whom he suspects to have committed an offence. It should be noted that in terms of para 4.2. of the code the power to suspend an employee only arises when the penalty for the alleged offence is dismissal. In terms of Part IV of the code the penalty for fraud is dismissal.”

And at F:

“… He should have been appointed before the appellant was suspended. In fact, in terms of para 4 of the code, no disciplinary proceedings can be instituted against an employee unless it appears to a designated officer that the employee in question has committed an offence. Even then, it is the designated officer, and no-one else, who is empowered by the code to notify the employee in writing of the nature of the alleged offence and the impending investigations.”

The above scenario resembles the elaborate procedure in 2nd respondent’s Code of Conduct. It is common cause that the procedure prescribed in Clause 11 of 2nd respondent’s code was not followed. The charges emanated from “ministerial recommendations.” The composition of the panel was influenced by “legal advice” from “outside” sources. This clearly defeats the whole process	 and impact of collective bargaining agreements which are an agreement between employer and employee on how to proceed when dealing with such matters.

I will revert back to the Mugwebie case.  The learned Judge had to deal with what became of such a flawed process, that is, a failure to follow the procedure prescribed in the code. He had this to say at 96H:

“The question which now arises is whether the appellant’s suspension was valid. There is no doubt in my mind whatsoever that it was null and void. It was a complete nullity. In this respect I can do no better than quote what Lord Denning said in Macfoy v United Africa Co. Ltd [1961] 3 ALL ER 1169 (PC) at 1172 I:

‘If an act is void then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. 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.”

What emerges from the present case is that there was no attempt to deal with the applicants in terms of the Code of Conduct. Mr Mufari tried unsuccessfully to wriggle out of the predicament he found himself in. He averred that 2nd respondent was still to have the Code of Conduct approved by the NEC. He did not dispute the fact that the same code had been used in referring a matter to this court in 2018. He did not dispute the fact that applicants’ contracts of employment which referred to the Code of Conduct were entered into after 2006 when the NEC Code was born. There is also an admission captured in the council minutes recorded elsewhere in this judgment that the Code of Conduct was old and a new one needed to be put in place. It was not stated that the Code of Conduct was not operational.

In summary, the applicants were not suspended in terms of the Code of Conduct. I have already stated that their suspension was premised on the criminal charges they faced at Chinhoyi Magistrates Court. The charges themselves did not come from the Code of Conduct. The Disciplinary Authority, the main issue in the first ground for review, was not appointed in terms of the Code of Conduct. The Disciplinary Authority was therefore not clothed with any legality. It was a nullity. It lacked jurisdiction. Bhunu JA had this to say in Drillwell Partnership v Rodrico Salvatitera SC 63/19 at page 5:

“It is self – evident that the appellant has raised important jurisdictional, legal and factual issues. It is often said that jurisdiction is everything. Thus a judicial officer who acts without jurisdiction labours in vain as the judgment or award is a nullity and counts for nothing.”

I totally agree with the above sentiments.

I therefore find that 1st respondent did not have the requisite jurisdiction to preside over the applicants’ misconduct proceedings. It will obviously be unnecessary to deal with other grounds for review.

In the result, the application for review ought to succeed. The following order is appropriate.

1.	The application for review be and is hereby granted.

2.	The decision of 1st respondent finding the applicants guilty culminating in their

dismissal be and is hereby set aside.

3.	The matter is remitted to 2nd respondent to be dealt with in terms of the law.

4.	Pending any determination of matter in terms of the law, the applicants shall revert

to their status quo ante before the disciplinary hearing without loss of salary and benefits.

5.	The 2nd respondent shall meet applicants’ costs.

J. Mambara & Partners, Applicants’ Legal Practitioners

Mawire J.T. And Associates, Respondents’ Legal Practitioners