Malvern MANO V Emmanual Tshuma (N.O) & Medical AID Society OF Central Africa (Masca)

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO LC/H//692024
ZIMBABWE HARARE, 8 NOVEMBER
CASE NO. R-LC/H/REV/119/19
2023 & 26
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 8 NOVEMBER 2023 & 26

FEBRUARY 2024

In the matter between:-

MALVERN MANO

EMMANUAL TSHUMA (N.O)

JUDGMENT NO LC/H//692024 CASE NO. R-LC/H/REV/119/19

APPLICANT

1st RESPONDENT

MEDICAL AID SOCIETY OF CENTRAL 2nd RESPONDENT AFRICA (MASCA)

Before the Honourable Kudya J

For the Applicant	S.N. Muhambi (Unionist)

For 1st and 2nd Respondent	N. Mugandiwa (Legal Practitioner) KUDYA, J:

This is a review of the disciplinary proceedings which resulted in applicant being found guilty of misconduct and being penalised with dismissal from work. The applicant had placed before the court 5 review grounds but in his oral address withdrew grounds 2, 3 and 4 thus leaving for determination only grounds 1 and 5. Ground 1 relates to improper composition of the disciplinary body. Ground 5 relates to failure by the disciplinary body to give applicant a chance to mitigate. Applicant prays that on the success of these 2 grounds his guilty verdict and dismissal penalty be upset and substituted with an order reinstating him to his original position without loss of salary and benefits or that he be paid damages in place of reinstatement.

Respondent employer is opposed to the grant of that relief. It maintains that the disciplinary body was properly constituted and that applicant was given a chance to mitigate

when parties were told to file written submissions following the hearing proceedings. It is the respondent’s prayer that the review be dismissed for lack of merit and that the guilty verdict and dismissal penalty be made to stand. Each of the review grounds is discussed below Composition

The resolution of this issue lies in the interpretation of the code of conduct under which applicant was charged and found guilty. A reading of the record of the disciplinary proceedings admits of no doubt that the applicant was charged under S I 379/90. This is clearly stark from the position adopted by the respondent in its opposing affidavit that the matter was dealt with under the model code. In his address counsel for respondent sought to argue that the composition was regular to the extent that an interpretation which leads to the conclusion that there were supposed to be 2 bodies dealing with applicant matter would be absurd.

The Code of Conduct on record page 104 -117 demonstrates clearly that there was need for the employer after consultation with the works council to appoint one or more persons to be designated officer who would administer the Code. The Code provides further that the D\O would investigate the matter, notify the employee in writing nature of charges against him, if there is need for suspension, suspend the employee, gather all the evidence on the misconduct, cause the employer to present his defence personally through a representative of choice and call witnesses to give evidence where need be (See part II paragraph 4 of the Code).

Post investigations the D/O would determine the matter and submit to the employer his decision and all evidence which the employer is enjoined to look at what the D\O would have done, cause the employee to appear before it where it may take further evidence and decide on the employee’s guilt. What is apparent from the scenarios postulated by the Code is that there are 2 stages to which an employee has to be subjected to before his guilt or otherwise is determined. A plain reading of the Code shows that the makers of the code intended that there be such two tiers before a conclusion on the guilt of the employee or otherwise. It is clear on the facts of the matter at hand that such process was not followed. This gives evidence to the applicant’s argument that his guilt was birthed from an ill composed disciplinary body. It is settled that where procedural irregularities about such should be put right. See Dalny v Banda 1999 (1) ZLR 220. It is also settled that an acquittal can only be birthed by exculpation on the merits of the conduct complained about. See Air Zimbabwe v Mnensa SC-89-04.

MITIGATION

Emanating from the breach complained of in ground 1 it is clear that the mitigation was not entertained as envisaged by the codes too. It is settled that Codes of Conduct be adhered to NEWU v Dube SC-1-16. In the case at hand such was not done and that has to be put right.

It is clear from the discussion on the 2 grounds that both are merited to the extent that they should succeed albeit with the qualification that what was irregular has to be regularised vis the proceedings that gave birth to the guilty verdict.

IT IS ORDERED THAT

Application for review on the basis, of improper composition of the disciplinary committee and on account of failure by the employer to give employee a chance to mitigate being merited the application be and hereby succeeds.

The matter is remitted to the employer for a disciplinary hearing denovo following the letter of the Code of Conduct.