Nhamo Chiambiro v Zimbabwe National Water Authority (ZINWA)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/781/2014
HARARE, 03 OCTOBER 2014
CASE NO. LC/H/187/12
AND 21 NOVEMBER 2014
JUDGMENT NO. LC/H/781/2014
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IN THE LABOUR COURT OF ZIMBABWE    JUDGMENT NO.LC/H/781/2014

HARARE, 03 OCTOBER 2014			      CASE NO. LC/H/187/12

AND 21 NOVEMBER 2014

NHAMO CHIAMBIRO                               APPLICANT

VS

ZIMBABWE NATIONAL WATER AUTHORITY (ZINWA)     RESPONDENT

Before the Honourable B.T Chivizhe Judge

For Applicant:	Mr. R. Chivaura (Legal Practitioner)

For Respondent:	Mr J. Dondo (Legal Practitioner)

CHIVIZHE, J.

This is an application for leave to appeal against a judgment handed down in this court on the 31st of May, 2013. The Application is opposed.

The facts of this matter are briefly as follows;

The Applicant was employed by the Respondent as the National Purchasing Co-ordinator. He was suspended without pay on the 26th of January 2012 on allegation of having committed two acts of misconduct under the National Code Statutory Instrument 15 of 2006 i.e CHIVAURA & ASSOCIATES, Appellant’s legal practitioners

DONDO & PARTNERS, Respondent’s legal practitioners

Any act of conduct or omission inconsistent with fulfilment of the express or implied conditions of his contract and theft. The allegations were that Applicant had fraudulently facilitated the payment of various companies of goods for PSIP projects which goods were never delivered. On the second charge the Respondent alleged that Applicant had removed selected companies from Manyame Contractual Procurement Committee for the purchase of items for Mhangura PSIP project. He had then replaced the companies without certain companies from which he had proceeded to source quotations. The Applicant had then facilitated the payment of those particular new companies with any goods having been delivered. The Respondent had as a result been prejudiced to the amount of US$ 42 502.35.

Applicant was invited to a disciplinary hearing on 22nd of February, 2012. He had attended with his legal representative. He however boycotted the proceeding by walking away from the proceedings on the basis that the 14 day statutory period for a hearing having lapsed the Respondent had committed a procedural irregularity. The hearing proceeded in his absence and disciplinary committee found him guilty on both charges. The committee consequently imposed a dismissal penalty. An appeal noted with the Appeals Authority was dismissed.

The Applicant having the noted an appeal with this court, the court came to the conclusion that the Disciplinary Committee did not err when it proceeded to hear the matter outside the 14 day statutory period. The court found that the period of delay in convening the disciplinary hearing being 2 days was short and thus insignificant, the delay had also to some extend been occasioned by the Applicant himself. The Court also found that the Appellant had failed to establish what prejudice if any he had suffered as a result of the short delay. The court further found that on the basis of the decision in Munyuki vs City of Harare 1998 (1) ZLR at p182 and Robert Dombodzvaku and Another vs CMED SC 14/2001 the Applicant had by boycotting proceedings waived his right to be heard and the hearing had justifiably proceeded in his absence. The court consequently dismissed his appeal. The Applicant dissatisfied seeks leave to appeal against this court’s decision. The basis for seeking leave is captured in Applicants founding affidavit filed with the court.

“5.1 The interpretation of S6 (2) of the Labour (National Employment Code of Conduct) Regulations, SI 15/2006 given by the Respondent is misleading and apparently mischievous in that Respondent’s argument is that it was being obliged to convene, commence proceedings and conclude same with 14 days so as to comply with the requirements of S6 (2) of the Labour (National Employment Code of Conduct) Regulations, SI 15/2006.

5.2 On the contrary, Applicant’s argument is that the interpretation to S6(2) of the Labour (National Employment Code of Conduct) Regulations, SI 15/2006 is clear to the extent that if an employer fails to convene and commence disciplinary proceedings within 14 days from the date of suspension, the employer is obliged to lift the suspension an reinstate.

5.3 The prejudice to Applicant arising from the apparently flawed interpretation of S6(2) of the Labour (National Employment Code of Conduct) Regulations, SI 15/2006 is that the 14 days required expired on 9 February 2012 and as such Applicant was entitled to reinstatement which he was denied.

5.4 Respondent was aware of its legal obligation to reinstate but sought to deny Applicant the right.

5.5 the judgement of the Labour Court in its interpretation of S6(2) of the Labour (National Employment Code of Conduct) Regulations, SI 15/2006 made its computation of the 14 days and ruled on page 5 of the judgement that “The period of delay therefore is two days.” Applicants held the view that the period of delay should be much more than two days if regard is had to the irregular and apparently invalid postponements by Respondent.”

Although Applicant appears to have raised several proposed grounds of appeal he is only raising one issue which issue I believe is a question of law as envisaged under Section 92F of the Labour Act [Cap 28:01] has been raised. The issue is whether the court erred in its interpretation of Section 6(2) of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15/2006 when it concluded that the Disciplinary Committee could proceed to hear the disciplinary matter outside the 14 day statutory period. The Applicant submission is that the employer is obliged in terms of Section 6(2) of the National Code to convene disciplinary hearing within 14 days from the date of suspension. Once the employer fails to so convene the disciplinary hearing the employer ought to then lift the suspension and automatically reinstate the employee. The provision is after all couched in mandatory terms. In casu once it became clear that the Respondent had failed to convene the disciplinary proceedings within 14 days Respondent should have proceeded to reinstate the Applicant. The Applicant had however been clearly prejudiced when Respondent failed to reinstate him.

The Respondent position was that the Labour Court had correctly interpreted the provision in Section 6(2) of the National Code. The court had also properly found the delay to be short and thus insignificant, further that the delay had been at Applicant instance. The Appellant having then walked out of the disciplinary proceedings on the basis of case authority he had clearly waived his rights to be heard and the employer was entitled to proceed.

Whilst I am satisfied that the court may have reached the correct conclusion based on the facts I also believe the Appellant raises a matter of substantive importance to himself in that Section 6 (2)  itself is not clear whether a failure to convene a disciplinary hearing within fourteen (14)  would result in automatic reinstatement. See also Munyaradzi Gwisayi in Labour Law and Employment Law in Zimbabwe page 190 for a discussion of the same issue. It is trite that leave to appeal can also be granted where there is reasonable prospect of success, the amount in dispute is not trifling and the matter is of substantial importance to one or both of the parties. See Pichanick No vs Paterson 1993 (2) ZLR 163 (H).

Order

In the light of the above, the application for leave to appeal against this Court’s judgement handed down on the 31st of May, 2013 be and is hereby allowed.

CHIVAURA & ASSOCIATES, Appellant’s legal practitioners

DONDO & PARTNERS, Respondent’s legal practitioners