Mashoko Mabgahazara v The Cotton Company of Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/90/13
HELD AT HARARE ON 27 FEBRUARY 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT LC/H/90/13

HELD AT HARARE ON 27 FEBRUARY 2013	CASE NO. LC/H/REV/138/11

In the matter between:

MASHOKO MABGAHAZARA					-		Applicant

And

THE COTTON COMPANY OF ZIMBABWE LIMITED	-		Respondent

Before the Honourable President, E.F. Ndewere

For Applicant				Mr M. Mavhunga (Legal Practitioner)

For Respondent				Mr C. Maunga (Legal Practitioner)

NDEWERE E.F.

Point in Limine:

The Respondent raised a preliminary objection because up to the time of the hearing, the Applicant had not filed Heads of Argument, in contravention of Rule 19 of the Labour Court Rules.  Respondent’s counsel said the Applicant is therefore barred in terms of Rule 19 (3) and should not be heard.

The Applicant’s counsel conceded that he had not filed Heads of Argument and sought leave to make an oral application for condonation during the hearing.  The Court’s ruling was that the Applicant was already barred and if he was serious about applying for condonation, he should have filed the application papers earlier and given reasons for his failure to comply with the Rule in advance.  The Court proceeded to hear the Respondent on merit in terms of Rule 19 3 (b).

Background

This is an Application for Review:

The background of the case is that the Applicant was employed as the Cottco Business manager based at Muzarabani.  On 4 September, 2010, the Applicant was suspended with pay and benefits, pending investigations into his work performance.  On 6 September, 2012, the Applicant’s immediate supervisor, Mr Mupfawa who was the Operations Executive-East, wrote to the Applicant highlighting the gross unsatisfactory performance of the Muzarabani Cotco Unit, detailing the targeted performance and the shortfalls.  The Applicant replied on 10 September, 2012 giving his explanation.  The Applicant’s supervisor was not convinced by the explanation and he replied on 13 September, 2012, indicating that the Applicant would be charged for Gross Unsatisfactory Work Performance in terms of the company’s code.  On 13 September, 2012, he was invited to a hearing on 20 September, 2012 and advised to bring any witnesses and any evidence in his defence.  The hearing did not take off on the 20th of September and on 25 September, 2012 the Applicant received another invitation to a disciplinary hearing on 28 September and he was again advised to bring any witnesses and any evidence which would assist him in his defence.

The 28 September hearing took off and the Applicant attended the hearing with Mr Mavhunga, his Legal Practitioner.  At the outset, Applicant’s counsel objected to the hearing, saying the hearing was likely to be unfair because the Acting Managing Director had written an e-mail saying his client would undergo a disciplinary hearing pending dismissal and since the Acting Managing Director is the last appeal authority, the internal procedures had already been tainted by the e-mail.

The Committee deliberated on the objections and resolved to proceed.  They asked the Applicant and his representative to return to the hearing.  The Committee chair announced its ruling; that it would proceed with the hearing.  Applicant’s counsel persisted with his assertion that the proceedings would be unfair.  Applicant was asked if replacing current committee members with others would satisfy him and his representative said replacing the committee would be a waste of resources and time because all the subordinates would abide by their superior’s decision.  Counsel’s last statement was “I feel we have stated it clearly that we have no confidence in this process as we deem it to be unfair and we will not be part of these proceedings.”  Counsel and the Applicant then left the room.  Thereafter the committee proceeded with the hearing.

The Complainant, Mr Mupfawa was called to present the case against the Applicant.  He did so and the committee had occasion to put questions to him.  The committee found the Applicant guilty as charged.  Thereafter, the committee wrote to the Applicant’s counsel, on 9 October, 2012, inviting him to mitigate before they pass the penalty.  They gave him up to 15 October, 2012 to do so.  On 15 October Counsel replied disputing part of the minutes.  The Committee proceeded to determine the appropriate penalty and they decided to dismiss the Applicant.  The Applicant appealed to the Managing Director and the appeal was dismissed.

The Applicant has applied to this Court for a review of the proceedings.  The facts are common cause.  The only dispute which surfaces for the first time in the communication of 15 October, 2012 is if Applicant’s counsel said “we will not participate in the proceedings” and if Applicant and counsel walked out together or were excused and expected to be called back to participate in the hearing.

The Applicant’s grounds for review are as follows:

The Disciplinary Committee was biased against the Applicant in that its panel comprised of people who had received an e-mail from the Managing Director (Appeals Authority) emphasizing that the disciplinary hearing was “pending dismissal" hence the hearing was a mere formality.  The disciplinary committee thus erred in not recusing itself despite noting that they had received the communication.

The disciplinary committee’s proceedings were grossly irregular in that they proceeded to deal with the matter on the merits before making a substantive ruling on the point in limine which had been raised by the Applicant.

The disciplinary hearing was grossly irregular in that it was conducted in the absence of the Applicant when the Applicant had actually been excused and was not advised that it would proceed in his absence.

The Appeals authority was equally biased against the Applicant in that he proceeded to deal with a matter which he already had first hand information and had actually given directive to the disciplinary Committee to dismiss the Appellant.

The Court has considered the grounds of review.  Regarding Ground of Review number 1 of bias because of the e-mail, the Court found that this was an Acting managing Director, not even the substantive one, who was writing to an Auditor giving her opinion on the allegations against the Applicant.  That alone does not mean the panel was biased.  The Applicant has to point to other factors to confirm the bias.  In Rajah and Rajah (Pvt) Ltd and others vs Ventersdrop Municipality and Others 1961 (4) 402 AD (407H to 408 B), Holmes J.A said “Now I think it is clear that the Court will not interfere on review with the decision of a quasi-judicial tribunal where there has been an irregularity, if satisfied that the complaining party has suffered no prejudice.”  So the law is that even if the e-mail created an irregularity for the Court to set aside the proceedings the Applicant has to show that he has suffered prejudice.  This means the Applicant, after the ruling should have participated in the hearing and be on the lookout for any bias to his prejudice and if it was there, then reveal it to the Court now on appeal.

In any event the Committee asked if the Applicant wanted the committee replaced by other members and the Applicant’s response was that the whole company was biased so he was suggesting that no one at the company could discipline him.  The second ground is without merit because it is clear from the record that the committee ruled against the Applicant’s objections and said the hearing should proceed.  As regards the third ground of review, there is a dispute on whether the Applicant and his Legal Practitioner were excused or they walked out and refused to participate.  The Applicant alleges that they were excused and were never told that the case would proceed in their absence while the Respondent says when the committee ruled that it would proceed the Appellant and his lawyer refused to be involved and walked out.  The Court finds that the Respondent’s explanation is more probable than the Applicant’s.  The hearing was on 28 September, 2012 and the Applicant appeared initially and objected to the composition of the committee, alleging bias.  Thereafter, there was no follow up from him or his lawyer on the issue.  On 9 October, 2012 the committee then wrote to his lawyers informing them of the guilty verdict and inviting mitigation.  The lawyer he did not raise alarm or immediately react, until on 15 October, 2012, the deadline given by the committee.  All the Applicant did was to verbally request for the minutes of the hearing.  The request for the minutes is consistent with a party who knows that a hearing took place although he was absent and minutes were recorded.  In their letter of 15 October, 2012, the legal practitioner started disputing the minutes.  He denied saying they “will not be part of this proceedings” but admitted saying “they had no confidence in the proceedings.”  But the legal practitioner does not dispute what is on the 2nd and 3rd page of the minutes where it is clearly recorded that Applicant and his lawyer were excused briefly, then called back and advised that the committee had resolved to proceed with the hearing.  It appears Applicant’s legal practitioner wanted to force the Committee to rule in his favour and when the Committee stood its ground, they left the room, but that was long after the committee had ruled on the Applicant’s objection and said they would proceed.  The Court therefore accepts the committee’s version of events as correct and finds that the Applicant and his legal practitioner left the hearing of their own accord, knowing that the hearing would proceed in their absence.  The Applicant was given the right to be heard but he chose to exercise his right to remain silent to the allegations against him.

The fourth ground of appeal has no merit because as stated in the Respondent’s Heads of Argument in paragraph 12, the Appeals Authority was not the author of the e-mail, but superior to the author of the e-mail.  It was not copied the e-mail and no evidence was adduced to show that it too would have been biased.

The application for review is therefore dismissed, with each party paying its own costs.

E.F. NDEWERE

PRESIDENT

MAVHUNGA AND SIGAUKE LEAGL PRACTITIONERS – APPLICANT’S LEGAL REPRESENTANTIVES

MAUNGA MAANDA AND ASSOCIATES – RESPONDENT’S LEGAL PRACTITIONERS