Method Matete v Cailo Marketing Services (Private) Limited & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/119/2025
HARARE, 03 MARCH, 2025 AND
18 MARCH 2025
CASE NO LC/H/1049/24
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/119/2025

HARARE, 03 MARCH, 2025 AND

18 MARCH 2025	CASE NO LC/H/1049/24

METHOD MATETE	APPLICANT

CAILO MARKETING SERVICES	1ST RESPONDENT (PRIVATE) LIMITED

RAYMOND LUPAHLA N.O.	2ND RESPONDENT

LUCIA MANDISODZA N.O.	3RD RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant	- S. Sangula, Attorney

For 1st Respondent	- D. Peneti, Attorney

For 2nd Respondent	-No Appearance

For 3rd Respondent	-No Appearance

MUSARIRI, J:

Applicant applied to this Court for the review of his dismissal from employment by 1st Respondent. The application was made in terms of Section 89 (1) Id of the Labour Act Chapter 28:01, hereafter called the Act. 1st Respondent opposed the application.

The grounds for review were quintet, but during oral argument applicant abandoned the 5th ground. The remaining grounds stated that,

“1.  The disciplinary hearing was conducted by a body called a Disciplinary Chairperson which was incompetent as same was not in terms of the S.I 15 of 2006. There is no such body provided for at law.

The mode of the hearing was changed from a physical hearing to a virtual hearing without notice to me.

Further the appeal was deliberated on by a body, the Appeals Authority,that is also not provided for in terms of the applicable law.

In any event even assuming there is such a body, it was grossly irregular for the Appeals Authority to refuse to exercise jurisdiction on the appeal on the basis that the ruling in (sic) the Disciplinary Chairman had been arrived at in default of applicant’s appearance and thus striking off the appeal.”

Initially applicant prayed for his reinstatement without loss of salary and benefits. During argument he amended the prayer so that the matter may be remitted for a re-hearing.

1st Respondent countered through its opposing affidavit the pertinent parts of which read.

“Ground for review 1

The fact that the said person was at one point referred to as the Disciplinary Chairperson is of no moment whatsoever. In fact, the eventual determination by the said individual refers to a Disciplinary Authority.

Either way, there is no procedural irregularity to talk about. The individual so concerned was properly appointed and had the requisite jurisdiction to determine the matter. And so he did.

Ground for review 2

Applicant was advised fully in terms of the various forms of communication of the date, time and nature of the disciplinary hearing. Links were sent to both his email and his whatsapp number, and evidence was led to the effect that he saw such links.

There was no objection raised as to the nature of the hearing. Applicant simply decided to remain mum.

Ground for review 3

I shall not belabour the court with many factual averments but simply refer to Section 8

(1) of SI 15 of 2006.

The code clearly provides for appointment of an appeals officer. As to how Applicant misses this clear provision, no one is the wiser.

Grounds for review 4

It is trite that where one does not attend a disciplinary hearing he waives then (sic) right to challenge the proceedings, both substantively and procedurally.

This was the fate of the Applicant. To the extent that he did not attend disciplinary hearing for no just cause, he could not appeal the said decision.”

1st Respondent prayed that the application for review be dismissed.

The grounds for review and the response thereto raise 3 (three) issues which will be dealt with ad seriatim.

Whether the disciplinary bodies were constituted in terms of the law;

The applicable enactment is the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006. Section 2 of the Code defines a disciplinary authority as ‘a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or workplace.’ The definition covers the person in casu who conducted the disciplinary hearing as ‘chairperson’. It matters not that he was described as ‘chairperson’ instead of ‘disciplinary authority’. The fact of the matter is that he acted as the ‘disciplinary authority’ as he eventually designated himself. The same goes for the appellate body. The fact that it was designated as appeal authority instead of appeals officer does not change

anything. The same person who was termed ‘appeals authority’ actually acted as the appeals officer contemplated by Section 8 (1) of the code.

Whether applicant was in wilful default at the disciplinary hearing:

By letter dated 1st August 2024 1st respondent suspended applicant pending a disciplinary hearing. The 1st paragraph of the letter read,

“Please be advised that you are hereby suspended from work without salary and benefits with effect from 1st August 2024 pending a disciplinary hearing which is scheduled on Thursday 08 August, 2024 at 11;00 am at Cailo Marketing Services Boardroom, 10 Spurn Road, New Ardbennie, Harare in terms of Statutory Instrument is of 2006 (National Employment code of conduct).”

Apparently on 5th August 2024 applicant’s attorney drafted a letter addressed to 1st Respondent in response to the suspension letter. The response requested a postponement of the hearing because the attorney (Mr Sangula) had a hearing at the Magistrates court on the set hearing date at 09:00 am. Applicant stated that the letter was ‘stuck in the out box and was not delivered.’ This was only realised on 14 August 2024 whereupon the attorney phoned 1st respondent to advise of the ‘technical glitch’ but was told the hearing had already been conducted and concluded online in applicant’s absence.

1st respondent countered that applicant was notified that the hearing was to be held online and the necessary links were communicated via his email and whatsapp number. Proof of such communication was not filed of record. 1st respondent stated that the minutes of the hearing where the communications were mentioned is the proof. The court respectfully disagrees. There is no proof that applicant was properly notified of the online hearing. Accordingly it cannot be said that applicant was in wilful default at the online hearing. Consequently the case authorities relied on by 1st Respondent to assert waiver by applicant do not apply they as reference wilful default.

Further and in any event section 6 (4) of the Code gives an employee the right to appear in person at the hearing where it provides that

“(4)   At a hearing in terms of subsection (2), an employee shall have the right to-

(b)  appear in person before the employer or employer’s representative or disciplinary authority as the case may be and be represented by either a fellow employee, workers committee member, trade union official/officer or a legal practitioner,”

Whether the Appeals Authority erred at law by failing to hear applicant’s appeal to it:

In light of the Court’s take on the second issue, which is dispositive of the application, it is unnecessary to deal with this issue.

Wherefore it is ordered that

The application for review be and is hereby granted.

The decisions by the 2nd and 3rd respondents are hereby set aside.

The matter is remitted to 1st respondent for a rehearing within thirty (30) days of this order failing which

1st respondent shall reinstate applicant without loss of salary and benefits or

1st respondent shall pay applicant damages in lieu of reinstatement in sum either agreed by the parties or assessed by this Court.

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E