Nhamo Chiambiro v ZINWA

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/160/2013
HARARE, 9 MAY 2013
CASE NO. LC/H/87/2012
JUDGMENT NO.LC/H/160/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/160/2013

HARARE, 9 MAY 2013				CASE NO. LC/H/87/2012

In the matter between

NHAMO CHIAMBIRO			-			Appellant

And

ZINWA					-			Respondent

Before The Honourable B.T. Chivizhe: President

For Appellant 	-	Mr R. Chivaura – Legal Practitioner

Chivaura and Associates

For Respondent	-	Mr J. Dondo – Legal Practitioner

Dondo and Partners

CHIVIZHE, B.T.:

This is an appeal against a decision by the Respondent’s Appeals Authority upholding an earlier determination by the Disciplinary Committee to dismiss the Appellant from employment.

The background facts in this case are as follows;

The Appellant was employed by the Respondent as the National Purchasing Coordinator.  On the 20th of January, 2012 Appellant was suspended without pay and benefits following allegations of violations of Section 4 (a) and (d) of the Labour Act (National Employment Code of Conduct Regulation 2006), Statutory Instrument 15 of 2006 that is ‘Any act of conduct or omission inconsistent with the fulfillment of the expenses or implied conditions of his contract’ and “Theft or Fraud”.  The allegations were that the Appellant had, in respect of the fraud charge, fraudulently facilitated the payment to various companies of goods for PSIP projects which were not delivered.  On the second charge it was Respondent’s case that Appellant had removed selected companies from Manyame Contractual Procurement Committee for the purchase of the items for Mhangura PSIP project and then replaced those with companies whose quotations he had then sourced.  The Appellant had facilitated the payment of these new companies in advance without goods having delivered.  The goods had not been delivered thereby prejudicing Respondent in the amount of US$42, 502.35.

The Appellant was arraigned before a Disciplinary Committee on 22 February, 2012.  The Appellant attended in the company of his legal representative.  He then boycotted the proceedings by walking away from the proceedings citing a procedural irregularity that the 14 day statutory requirement for a hearing had lapsed.  The hearing proceeded in his absence.  The Disciplinary Committee found him guilty on both charges and imposed a dismissal penalty.  Dissatisfied the Appellant noted his appeal against the findings by the Disciplinary Committee with the Appeals Authority.  In a decision handed down on 6th March, 2012 the Appeals Authority upheld the determination by the Disciplinary Committee and reimposed the dismissal penalty.  Still aggrieved the Appellant has lodged the present appeal with the Labour Court on the following grounds;

The disciplinary hearing erred in failing to consider that the sheet had no dates indicating the period when the allegations occurred.

The disciplinary hearing erred in failing to consider that the 14 day statutory requirement for a hearing on behalf of the Respondent had lapsed.  The defence counsel wrote to the authority regarding this matter and there was no response, therefore the Respondent had to be reinstated and then another date was set.

The disciplinary hearing erred in not that the auditors were the investigations officers, during investigation and the complainants during the hearing, they cannot be both.

The disciplinary hearing erred in that on the day of the hearing Manyame chose their own workers as representatives without the approval of the Respondent.  The Respondent is not an employee of the Manyame Catchment, but of the Head Office.

The committee erred in that they were not concerned about the fairness to the Respondent but rather for the hearing to proceed.

Human Resources did not advise the Finance Manager on the proper way of postponing the first hearing, instead of calling the hearing committee and the Respondent to agree on a postponement they wrote a dateless letter to advise the respondent of the hearing postponement.

The appeal raises both procedural and issues of law.  In regards the procedural issues raised by the Appellant, it is clear that grounds of appeal numbers 3 and 4 deserve to be struck out.  In Tichawana Nyahuma vs Barclays Bank SC 67/05 the principle is established that it is not every procedural irregularity that shall vitiate proceedings.  In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.

In casu no averments or allegations as to what prejudice if any the Appellant suffered as a result of any of the alleged procedural irregularities have been made.  In ground of appeal number 3 for example Appellant alleges that the auditors acted as both investigators and complainants during the disciplinary hearing.  What was the prejudice suffered by the Appellant has not been clearly established.  Similarly in Ground number 4 the Appellant alleges the Respondent fielded Manyame Workers as its Representatives whereas Respondent was employed at Head Office.  What prejudice he suffered as a result of this is again not stated and is merely left to conjecture.  In the circumstances grounds 3, 4, are hereby struck out.  Grounds number 5 and 6 are not valid grounds of appeal and thus deserve to be dismissed as I hereby do.

There are in my view two issues raised in this appeal;

The first is whether the Disciplinary Committee erred when it proceeded to hear the matter outside the 14 day statutory requirement.  The second is whether the Appellant was justified to walk out of the disciplenary proceedings citing the failure by Respondent to comply with that statutory requirement.  I shall address the issues seriatim

On the first issue Appellant submits that the initial suspension letter dated 20 January, 2012 set the date of hearing as 31st January, 2012.  Respondent had through a letter dated 27 January, 2012 advised of postponement sine die of the matter.  On 10 February, 2012 Appellant’s lawyer wrote to Respondent advising of the expiry of the 14 days under Section 6 (2) of the Statutory Instrument 15 of 2006.  It is Appellant’s contention as at that stage having failed to convene the hearing Respondent was obliged to remove suspension and reinstate.  There was no response to Appellant’s letter.  The Respondent after two further postponements eventually convened the hearing on 22 February, 2012.  The Appellant appeared at the hearing with his legal practitioner and walked out of the proceedings citing the reason of the failure by Respondent to convene the disciplinary proceedings with the statutory 14 days.

The Respondent’s position is that there is no provision under Statutory Instrument 15 of 2006 that authorizes that failure to convene disciplinary proceedings within 14 days has the effect of vitiating proceedings.  The Respondent further submits that whereas the suspension letter provided the date of hearing as 31st of January, 2012 the hearing was unable to proceed as the Appellant himself raised an objection to the presence of one of the Committee members who had then recused herself.  The matter had to thereafter be postponed.  The matter was postponed again on two other occasions for administrative reasons.  The matter was eventually set down on 22 February, 2012.  It was Respondent’s submission that the Appellant had in any event a remedy by virtue of Section 101 (6) of the Labour Act [Chapter 28:01], if he felt that the matter had been delayed to refer the matter to Labour officer.  The Appellant had not availed himself of the opportunity.  He could not be heard to cry foul at this stage.  He was also not justified to walk away from proceedings.

Section 6 (2) of the Labour (National Employment Code of Conduct Regulation 2006), Statutory Instrument 15 of 2006 provides for a period of 14 days for the employer to investigate the matter and conduct a hearing into the alleged misconduct.  It is clear from submissions by Respondent which submissions have not been disputed by the Appellant, that the matter was postponed following a request by Appellant for a Committee member to recuse herself.  There was in my view an interruption in the period of reckoning.  It follows that the period of computation of the days could only start from after the 31st of July, 2012.  To do otherwise would be to allow the Appellant to benefit from his own actions as he is the one who instigated the postponement after requesting for the recusal of a board member.

Calculating 14 working days from the 1st of February the Respondent would have been required to conduct disciplinary proceedings by the 20th of February, 2012.  The period of delay therefore is two days.  That period would in my view be insignificant.  Assuming I am wrong, however the Appellant has in any event failed again to establish what prejudice, if any he suffered as a result of the non-completion of proceedings within the stipulated period under the Code.  Ground of Appeal number 2 clearly cannot stand.

The next issue is whether the Appellant was justified to walk away from the disciplinary proceedings citing the failure by the Respondent to comply with statutory requirement.  I believe he was not justified.  In Munyuki vs City of Gweru 1198 (1) ZLR page 182 Gubbay C.J (as he then was) stated as follows;

“Although it is a fundamental legal principle that an employee charged with misconduct by the employer has a right to be heard.  I have no difficulty in accepting that such right may be abandoned or waived.  There is no compulsion upon the employee to attend the hearing.  Non-attendance is not a disciplinary offence unless specified in the Code of Conduct.  If the employee does not attend however, he abandons his right to be present and the hearing may proceed in absentia.”

The principle was also followed in a matter that is almost on all fours with the present matter in Robert Dombodzvuku and Arthur Shingai Mutasa vs CMED (Pvt) Ltd SC 14/2011.  In that case Dombodzvuku and Mutasa also walked out of hearing objecting to the presence of certain persons on the Hearing Committee.  When they walked out both of them had also not refuted the allegations against them.  The application for review was heard in the Labour Court.  In a judgment by myself (Mtshiya S.P. (as he then was concurring) the court concluded that by walking out the Appellant waived his right to be heard.  The Supreme Court in their judgment referred to supra confirmed this position.  Similarly in casu by also walking out of disciplinary proceedings with his legal practitioner the Appellant took a calculated risk that the matter would proceed without him.  It is common cause he had not at that stage proferred any defence to the serious charges leveled against him.  The Appellant clearly waived his rights to be heard by Disciplinary Committee.  His appeal cannot succeed therefore and is consequently dismissed for lack of merit.