Nicolas Mazodze v Tafirenyika Magadhi N.O. and Zimbabwe International Quarries

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/280/2023
HARARE, 20 JANUARY, 2023
CASE NO LC/H/915/22
22 SEPTEMBER, 2023
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 20 JANUARY, 2023

22 SEPTEMBER, 2023

JUDGMENT NO LC/H/280/2023 CASE NO LC/H/915/22

NICOLAS MAZODZE	APPLICANT VS.

TAFIRENYIKA MAGADHI N.O.	1st RESPONDENT AND

ZIMBABWE INTERNATIONAL QUARRIES	2ND RESPONDENT

Before the Honourable Chivizhe, Judge:

For Applicant	:	Mr S. Kachere (Legal Practitioner) For the 1st Respondent :	No Appearance

For 2nd Respondent	:	Ms R. Maunganidze (Legal Practitioner)

CHIVIZHE, J:

The matter was placed before me as an application for review of the 2nd Respondent actions in conducting a disciplinary hearing against the applicant. The Application is opposed.

BRIEF BACKGROUND

The Applicant submits that he was employed by 2nd Respondent as a Mechanic at its Mining site in Mutoko. On 21 April 2022 2nd Respondent summarily dismissed him from work. The Applicant challenged the dismissal and was reinstated to his position with effect from 27 July, 2022. Applicant submits that upon his return, he only worked for two days and on 3rd August 2020 he was advised to stop working. He was later chased from the company premises after he resisted the 1st respondent’s effort to have him resign on his own. On 10 August 2022

he wrote to 2nd Respondent advising of his perceived constructive dismissal. He requested for parties to meet to discuss his damages in lieu of reinstatement. He submits that this letter was never responded to. He thereafter on the 23rd August 2022, referred his complaint to the National Employment Council for the Mining Industry (the NEC). The NEC wrote to 2nd Respondent requesting a response to the claim of unlawful dismissal. The matter was then set for 4th October 2022. Instead of responding, the 2nd Respondent, on 14th September 2022, served upon his legal practitioners a charge sheet and notification of disciplinary hearing scheduled for 16th September 2022 at 12.00 hours. His Legal Practitioner declined to accept service on the basis that they had no mandate to receive papers on his behalf.

The Applicant contends that 2nd Respondent had, despite this, proceeded with a disciplinary hearing in his absence. A penalty of dismissal was then imposed on 20th September 2022. The letter of dismissal from work was served upon his legal practitioners. It was following this he then lodged the present application for review.

GROUNDS FOR REVIEW

The application is premised on the following grounds;

The Respondents acted unlawfully and unprocedurally by conducting a disciplinary hearing against the Applicant when it was aware that at the time those proceedings were instituted a complaint of constructive dismissal had been lodged and was pending determination at the National Employment Council.

The manner in which the Applicant was dismissed from work by the Respondent is grossly irregular and prejudicial in that there was no proper service of the misconduct charge and notification to attend a disciplinary hearing.

The Applicant’s dismissal from work was not in accordance with the laid down procedures in that the disciplinary committee was not properly constituted.

In his prayer the Applicant seeks for the setting aside of the disciplinary proceedings instituted against him by the 2nd Respondent on 16th September 2022 and the penalty of dismissal that had been imposed as a consequence. Applicant also prays for 2nd Respondent to pay costs of suit on an attorney/client scale.

2ND RESPONDENT POSITION

The 2nd Respondent is opposed to the application. Through the Opposing papers as filed of the record, 2nd Respondent contends, firstly, that, the Applicant’s Legal Practitioner ought to have deposed to an affidavit outlining why they refused to accept service on behalf of applicant and why they did not attend the disciplinary proceedings. In the absence of the affidavit the application is fatally defective. Secondly, the 2nd respondent contends the matter is improperly before the court as the Applicant has failed to exhaust domestic remedies by failing to attend the disciplinary proceedings and then approaching the NEC. The Court has been urged to decline to hear the matter in such circumstances. In the event that both points carry no merit the 2nd Respondent further contends that the application would still stand to be dismissed in view of the factual circumstances that show that Applicant was on the 13th of September, 2022 charged with contravention of Section 4 (f) of the relevant Code of Conduct, that is Schedule to the Collective Bargaining Agreement : Mining Industry S.I. 152/1990 that is absence from work for a period of five (5) or more working days without reasonable excuse, in that he absented himself from work from the 10th of August, 2022 to the 9th of September 2022 a period of twenty three (23) consecutive working days without reasonable excuse.

The 2nd Respondent further avers that the Applicant was served with notification to attend the disciplinary proceedings, such notification having been served on his current Legal Practitioners, who accepted service of the documents on his behalf. The 2nd Respondent submits that despite such service no one appeared at the hearing resulting in the disciplinary hearing proceeding as a default hearing. The Applicant was found guilty of the charge levelled and a penalty of dismissal was consequently imposed upon him with immediate effect. The 2nd Respondent contends that in the absence of a court order to stay the proceedings the Disciplinary Committee had proceeded with the hearing. There was no basis for stopping proceedings, the fact that Applicant had already referred a claim to the NEC was of no consequence. The Applicant was supposed to have appeared at the hearing and sought a postponement or alternatively approach this court with an urgent application to obtain an order for stay of proceedings.

The 2nd Respondent acknowledges having received on the date of the hearing, that is on 16th of September, 2022 at 12.58 pm, a letter from Kachere Legal Practitioners advising that the firm had no authority to accept service on behalf of Applicant. 2nd Respondent contends

that the letter was received after the disciplinary proceedings had already ended at 11.30am in the morning. The 2nd Respondent further contends the Disciplinary Committee acted properly in proceeding with hearing. There was nothing irregular in their conduct.

In response to the specific issues as raised through the Applicant’s Founding Affidavit 2nd Respondent submits as follows. It denies that the disciplinary proceedings were unlawful and unprocedural. 2nd Respondent also submits the application for review has no merit as Applicant and his legal practitioner are abusing the court, the Applicant by absconding from the hearing lost his right to seek review of the proceedings; the 2nd Respondent also submits the contract was terminated lawfully on 16th September, 2022 after the disciplinary hearing; 2nd Respondent denies allegations of an attempt to cover up by the Mine Manager of the purported Applicant’s summary dismissal. The letter written by 2nd Respondent on 30th of May 2022 was written on special instruction, and cannot be used by Applicant to justify any position. 2nd Respondent disputes the incident alleged by Applicant as having taken place on 3 August 2022 between him and one Barosso Juliana, a Manager. 2nd Respondent has put Applicant to the strictest proof of his averments. 2nd Respondent denies that Barosso Julian is employed by it as alleged by Applicant. 2nd Respondent also disputes the allegations that Applicant was summoned to a meeting by Mr Shamu and Mr Gwitima (Mine Manager) where he was instructed to send his resignation letter so he would be paid his terminal benefits, and that he was subsequently asked to leave the premises.

The 2nd Respondent admits to having received the letter from NEC dated 1st September 2022 and indicates the letter was responded to through their legal practitioners of record, on the 7th of September 2022. In the letter 2nd respondent was requesting for the basis of allegations. A request was also made for further ‘meaningful comments/submissions”. The letter also advised that Applicant remained 2nd Respondent’s employee. A copy of the letter is attached to 2nd respondent papers. 2nd Respondent submits that 1st Respondent did not respond to the letter. It was thus entitled to proceed with disciplinary hearing as Applicant remained their employee. 2nd Respondent also contends that service on Applicant legal practitioners was proper as Applicant was not attending at work, the said Legal Practitioner had accepted service and these legal practitioners are still the same legal practitioners appearing even before this court. They ought to have attended that hearing and requested for stay of proceedings. In respect of the claim of improper composition of the Disciplinary Committee, 2nd Respondent submits Applicant is the author of his own problems, having failed to attend, he had lost the right to challenge the proceedings. Lastly 2nd Respondent contends that the disciplinary

proceedings were not sham proceedings as suggested by Applicant, they were conducted properly and Applicant was dismissed thereafter.

THE ISSUES

The 2nd Respondent has raised as a first and second issue for determination before this Court, whether the Applicant’s Legal Practitioners ought to have deposed to an affidavit outlining the facts leading to Applicant not attending the disciplinary hearing and explaining why they refused to accept the service. The second issue is whether Applicant was required to exhaust internal and other remedies before approaching this Court with his application for review.

The issue of a missing affidavit from applicant papers is not a valid ground of objection. The fact is the present application is premised on Applicant submission that the disciplinary proceedings convened by the 2nd Respondent were unlawful, the 2nd Respondent cannot therefore insist on the applicant legal practitioners deposing to an affidavit to explain why they refused service and why they did not attend proceedings which the applicant is challenging as being unlawful. The point stands dismissed for lack of merit. The first issue that necessarily ought to be determined by the court is whether the applicant was required to exhaust domestic remedies. The issue is clearly one of jurisdiction. I turn to address the point.

WHETHER	THE	APPLICANT	WAS	REQUIRED	TO	EXHAUST INTERNAL/OTHER REMEDIES.

The 2nd Respondent in its heads referred to the need for applicant to exhaust internal remedies by attending the disciplinary proceedings and thereafter refer the matter to the NEC. The 2nd Respondent has referred the court to Medicines Council Authority of Zimbabwe vs. Nathan Toronga and Ors SC 10/17 where the Supreme Court found that the determination by Labour Court on the merits was wrong at law and could not stand as the court had failed to determine first the jurisdictional issue as to whether the matter had been properly before the Labour Officer. The 2nd Respondent has also referred to Farm Community Trust vs Chemhere SC 22/13. The 2nd Respondent prayer is for this court to, in casu, decline to exercise jurisdiction as Applicant has failed to exhaust the internal remedies.

The Applicant, in his reply, submitted that this court has jurisdiction to entertain the review as this court has general powers of review in the first instance with matters involving labour issues. The Court agrees with Applicant’s submission. It is indeed the position under section 89 of the Labour Act (Chap 28;01) and on the basis of authorities that the Labour Court has jurisdiction to deal with, in the first instance, matters involving issues of labour.

The Applicant aptly referred to the decision in ZIMASCO Private Limited vs. Maynard Farai Marikani  SC 6/14 where Honourable Garwe JA (as he then was) held that;

“The fact that, instead of seeking a review, one can approach a labour officer in terms of S 93 of the Act does not and cannot affect the review powers of the Labour Court provided the requirements for such review are met.”

The explanation tendered by Applicant as to why he did not wait to have his grievance resolved at the NEC is a plausible one. The 2nd Respondent despite having been notified of the matter pending before the NEC had proceeded to conduct disciplinary proceedings which culminated in Applicant’s purported dismissal. The only remedy available to Applicant therefore was to approach this court directly. The application for review is therefore properly before the court.

WHETHER THE REFERRAL OF A COMPLAINT TO THE DESIGNATED AGENT SUSPENDS DISCIPLINARY PROCEEDINGS

The second issue for determination is whether the filing of the dispute at the NEC Mining Industry automatically stopped or suspended the disciplinary proceedings. The answer to that question is clearly YES. The record shows on page 21 that the Applicant had referred a complaint to the NEC Employment and Mining Council on 23rd August 2022. The complaint was referred on the basis of Section 62 (1)(a) of the Labour Act [Cap 28:01].

The Applicant in paragraph 12 of the letter clearly referred to the issue of his constructive dismissal and the background facts leading to that position are outlined in his letter. The argument presented by 2nd Respondent that in his grounds for review he has not specifically referred to constructive dismissal in his grounds for review is clearly neither here nor there as the papers clearly show the complaint was referred on the basis of constructive dismissal.

The 2nd Respondent does not dispute that it received notification of the matter pending before the NEC on the 10th August 2022. The 2nd Respondent did not claim that Applicant was still an employee. The 2nd Respondent, through counsel, submitted orally that it did refer a letter to the NEC requesting for further particulars. This submission however does not form part of 2nd Respondents Heads of Argument. It is clearly being raised as an afterthought.

It is also the position of the law that when an employee has been constructively dismissed it is no longer open for the employer to conduct a disciplinary hearing. The court was referred by Applicant to Thomas Meikle Stores vs. Mwaita & Another SC 21/07. It is also the position that when 2nd Respondent purportedly dismissed Applicant the NEC Designated Agent was already seized with the complaint of constructive dismissal. The 2nd Respondent by its own admission was aware of the proceedings. It was not open to 2nd Respondent to choose to ignore that process. It was therefore unlawful for 2nd Respondent to have convened disciplinary proceedings in such circumstances. The Applicant has referred to the Supreme Court decision in Munchiville t/a Bernstein Clothing vs. Chiedza Mugavha SC 62/19 where Patel JA, (as he then was) stated as follows;

“As I have already stated, conciliation proceedings under s93(1) are prescribed by statue. They are essentially quasi-judicial in nature. In my view, the parties engaged in such proceedings are obligated to respect and abide by them as a statutory process and to subject themselves to the jurisdiction of the labour officer concerned until the proceedings are formally terminated, viz until the disputation between them is either settled through conciliation or referred to arbitration. It follows that it is only the labour officer seized with the matter who has the requisite power and authority to validly conclude and finalize the proceedings in accordance with his statutory mandate. I would venture further to add that, depending upon the circumstances, this would be the case even if the controversy before him is overtaken by events or otherwise resolved by the parties. Consequently, neither party, whether it be the employer or employee, is at large to unilaterally disregard or resile from pending conciliation proceedings”

The 2nd Respondent has also referred to its own authority in support of its own position that as an employer it was entitled to proceed with disciplinary proceeding even after receiving notification of the complaint referred to the NEC. Reference was made to Augustine Tirivangani vs. University of Zimbabwe SC 21/13 where on page 6 of the cyclostyled judgement, it was held per Gowora JA (as she then was) that;

........ Despite this, the Court had this to say

“As regards the second ground of appeal, i.e. whether the employer could discipline the respondent when the respondent had referred that dispute to a labour officer for conciliation and possible arbitration.

The Court is of the view that the arbitrator erred in holding that the employer could not. An employer is entitled in law to discipline any employees in terms of the governing laws whenever it is alleged that the employee has committed an act of misconduct. The reporting of the dispute to a labour officer does not take away the employer’s right to discipline its employees. That is a settled principle of our law”

There is an apparent conflict in the two judgements as referred to by the parties which judgements are both emanating from the Supreme Court. The approach to be taken by an inferior court in such circumstances was outlined in Garira and 2 Others vs. National Engineering Workers Union and Another SC 141/21 were Bhunu JA stated as follows;

“[22] The difficulty with this case is that the appeal falls to be determined on the basis of conflicting judgements emanating from the same Court a quo. The position in our law is clear that judicial judgements are correct until they have been pronounced otherwise by a higher court of competent jurisdiction. In the South African case of Mkize v Swemmer & Ors 1967 (1) SA 186 the court held that, “Judicial decisions will ordinarily stand until set aside by way of appeal.” Back home in the case of Williams & Anor v Msipha NO & Ors 2010 (2) ZLR 552 (5) at p 567C, this Court held that, “Only an appeal Court has the right to say that a judicial decision is wrong.”

Given the position of our law in this respect, the logical conclusion is that all the conflicting judgements referred to in this case are correct until this Court has revolved the conflicts. Before that no one can authoritatively say that any of the impugned judgements are wrong.”

In view of this position of the law both judgements as referred by the parties are therefore correct in the conclusions reached. It will take another judgement from the Supreme to correct any apparent conflict. In order to resolve the current dispute however the court is persuaded to follow the latter decision in the Munchiville matter. In the result the court finds that the 2nd Respondent, having convened disciplinary proceedings in the face of a pending matter before the NEC, the disciplinary proceedings so convened were unlawful and irregular. Those proceedings clearly stand to be set aside. Having come to this conclusion it will not be necessary to address the two other grounds for review. The Applicant had also prayed that in the event of his application succeeding the court grant an order for punitive costs against 2nd Respondent. No cause has however been laid for such an order.

In the result it is ordered as follows;

The application for review succeeds with costs at the ordinary scale.

The disciplinary proceedings convened by 2nd Respondent on 16th of September, 2022 and the penalty of dismissal imposed be and are hereby set aside.

Kachere And Partners, Legal Practitioners for Applicant

Chihambakwe, Mutizwa and partners, Legal Practitioners for 2nd Respondent