Lawrence Mushayabasa v Old Mutual Properties Investments

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/786/14
HELD AT HARARE 30TH OCTOBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/786/14

HELD AT HARARE 30TH OCTOBER 2014		CASE NO LC/H/194/12

& 21ST NOVEMBER 2014

In the matter between:-

LAWRENCE MUSHAYABASA				Applicant

And

OLD MUTUAL PROPERTIES INVESTMENTS		Respondent

Before The Honourable F.C. Maxwell, Judge

For Applicant		Ms G.F. Dzitiro (Legal Practitioner)

For Respondent		Mr I Chagonda (Legal Practitioner)

MAXWELL, J:

Applicant was employed by the respondent as a Property Consultant.  He was charged with lack of skill or knowledge which the employee expressly or by implication holds himself to possess on 7 February 2012.  A disciplinary hearing was held on 20 and 21 February 2012.    Applicant raised a number of preliminary points which were dismissed by the hearing officer.  The hearing proceeded and applicant was found guilty as charged and dismissed from employment.  On 27 March 2012 he noted an appeal against the dismissal.  At the same time applicant applied for the review of the decision of the Appeals Authority dated 1 March 2012 dismissing his appeal against the decision of the hearing officer.  This judgment concerns the application for review.

The grounds for review are lengthy but can be summarised as follows:

The Appeals Authority grossly misdirected himself at law and on procedure in wrongly upholding the dismissal of the applicant when the hearing officer had erred at law in failing as he did to follow the investigation procedure as outlined in clause 5 of the Old Mutual Code of Conduct.

The Appeals Authority further grossly erred at law in upholding the decision of the hearing panel which was improperly constituted.

The Appeals Authority also grossly misdirected herself in upholding the decision of the Hearing Officer and complainant when they were clearly biased.

The Appeals Authority further misdirected herself in wrongly upholding as she did the decision of the hearing officer who was partial and not independent.

The decision of the hearing officer to dismiss the applicant’s objections to the composition of the panel and the wrong charges is so unreasonable in its defiance of logic that no reasonable court applying its mind will reach the same decision.

The decision to dismiss the employee when his conduct to all intents and purposes, regard being had to the Code of Conduct, was so unreasonable in its defiance of logic as the misconduct, assuming verdict of guilty is competent when properly charged would result in a mere warning.

Applicant prayed for the setting aside of the dismissed penalty and for

his reinstatement without loss of salary and benefits.

In response respondent highlighted that applicant had not filed an affidavit as he is obliged to in order to set out the grounds for review.  It also pointed out that the Appeals Authority should have been cited as a party to the proceedings as it is his decision which is being reviewed.  On the merits respondent submitted that what is being complained of is not really the decision of the Appeals Authority but the proceedings that were conducted by the Hearing Officer.  In its view applicant ought to have taken the decision of the Hearing Officer on review rather than that of the Appeals Authority.  Respondent further submitted that applicant had failed to set out grounds for review as the grounds proferred are clearly grounds of appeal.  The points in limine were dismissed on 1 May 2013.

Section 89 of the Labour Act [Chapter 28:01] states functions and jurisdiction of the Labour Court.  Section 1 (d) states;

“exercise the same powers of review as would be exercisable by the High Court in respect of labour matters.”

Section 27 of the High Court Act [Chapter 7:06] gives the grounds for

review.  These are listed as

“a)	absence of jurisdiction on the part of the Court, tribunal or authority concerned;

b)	interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned, as the case may be;

c)	gross irregularity in the proceedings or the decision.”

It is trite that judicial review is concerned with the decision making

process, not with the decision.  In Hebstein and Van Winsen 4th ed p 929 the author states that the function of judicial review is to scrutinise the legality of administrative action, not to secure or substitute a decision by a Judge in the place of the decision of an administrator.   Considering that the notice of the application for review specifically states that it is in relation to the decision of the Appeals Authority dated 1 March 2012, it is that decision that should be measured against the grounds of review listed in section 27 of the High Court Act [Chapter 7:06].

Applicant has not alleged that the Appeals Authority lacked jurisdiction.  Neither has he alleged interest in the cause, bias malice or corruption on the part of the person who heard the appeal.  Applicant also has not alleged any gross irregularity in the proceedings or the decision of the Appeals Authority.  Instead as submitted by respondent, applicant is aggrieved by the proceedings before the hearing officer.  Applicant is challenging the correctness of the decision by the Appeals Authority to uphold the Hearing Officer’s decision. That, in my view, is about the correctness of the decision, not the decision making process.

It was submitted for applicant that the argument that he should have challenged gross irregularity arising from the Appeals Authority decision is not sustainable.  Counsel for applicant submitted that the Code of Conduct leaves no room for error procedurally as the procedure is straight forward.  In her view as the Appeals Authority had agreed with the Hearing Officer completely and the two should not be separated.  She went on to state that concurrence with the decision of the hearing officer amounted to the Appeals Authority having presided over the initial hearing and having committed the irregularities complained of.  There is no legal basis for the submissions that an Appeals Authority is answerable for the proceedings before the hearing officer.  Applicant’s counsel appreciated that no irregularities could be alleged in the procedure before the Appeals Authority.  That in itself is confirmation that a wrong procedure had been followed.  A review is concerned with procedural irregularities and where such cannot arise that procedure should not be adopted.  The application therefore is bound to fail.

Applicant prayed for the setting aside of the dismissal penalty and for his reinstatement without loss of salary and benefits.  Reinstatement is the kind of relief one seeks on appeal, not on review.  As was stated in the case of

Muringi v Air Zimbabwe Corporation and Anor 1997 (2) ZLR 488 it is not permissible for the reviewing court to embark upon a factual determination as to whether an employee should be reinstated in the event of the employer electing not to persist with the termination of the contract of employment.  I find that applicant adopted a wrong procedure for the remedy he requires.  The application consequently fails.

Accordingly I order as follows:

The application for review be and is hereby dismissed with costs for lack of merit.

The Registrar is to set the appeal down for hearing.

Mutumbwa, Mugabe & Partners, appellant’s legal practitioners

Atherstone & Cook, respondent’s legal practitioners