Nyikayaramba Rwodzi v Medical Investments Limited

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IN THE LABOUR COURT OF ZIMBABWE HARARE, 13 FEBRUARY 2025 LC/H/82/25 CASE NO LC/H/1304/24
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 13 FEBRUARY 2025

JUDGMENT NO LC/H/82/25 CASE NO LC/H/1304/24

In the matter between: -

NYIKAYARAMBA RWODZI	APPLICANT

MEDICAL INVESTMENTS LIMITED	RESPONDENT

Before the Honourable Kudya J

For the Applicant	E. Chigova	(Unionist)

For the Respondent	H. Mutasa (Legal Practitioner)

KUDYA, J:

On 13 February 2025 this court handed down an order granting the review application with costs on the ordinary scale. It ordered further that the proceedings leading to the applicant’s dismissal be set aside and in their place the matter be determined afresh before a different hearing officer.

On 25 February 2025 the Registrar wrote to the judge indicating that the parties were requesting reasons for the order of 13 February 2025.

These are the reasons:

The background to the matter is that the applicant who was in the respondent’s employment as an assistant services supervisor was brought before a disciplinary committee to answer allegations of contravening section 24(3) pp and section 24 3(11) of part 2 of the NEC Medical and Allied Industry Code of Conduct. He was accused of having engaged in conduct which was inconsistent with the conditions of his employment contract.

Alternatively, he was said to have engaged in conduct which was likely to bring the company’s name into disrepute. He was said to have unjustifiably complained that the cleaning and disinfectant chemicals that were being procured by the employer were substandard and unsuitable for the purpose that they were being used for. He was also said to have disclosed insider/confidential information to 3rd parties without the consent of the employer and thus conducted himself in a manner that brought the employer’s name into disrepute.

Following the disciplinary hearing, the Hearing Officer found the applicant guilty as charged. The hearing officer went on to invite the applicant to submit mitigation by no later than 12 noon of 20 November 2024 failing which the hearing officer would proceed to assess the penalty the mitigation notwithstanding. The mitigation invitation was done on 19 November 2024. Applicant failed to mitigate within the stipulated time.

Consequently, the hearing officer went ahead and penalised the applicant with dismissal. He cited the fact that he had considered mitigation from the surrounding facts of the case. He appealed to the Appeals Officer without success.

Applicant was irked by the manner in which his matter was handled. This prompted him to seek a review of the proceedings leading to his dismissal.

The review grounds to this court were set out as follows: -

The hearing officer erred and misdirected herself by presiding over disciplinary proceedings of a matter whose investigations were not complete.

The hearing officer was biased in that she gave inadequate time to submit factors in mitigation and ended up; creating her own factors in mitigation and decided the case based on her own creation.

The hearing officer erred and misdirected itself by proceeding to hear the matter despite that the circumstances of the matter were such that the proceedings were carried out to seek the dismissal of the employee.

In the result the applicant prayed that the review application be granted with costs. In response to the application for review the respondent maintained that: -

In limine the application is fatally defective because it is a challenge of processes which challenge has already been raised and determined by the Appeals Officer whose determination is extant. It therefore prayed that the application be struck off with costs.

On the merits it stated that: -

1	Applicant was properly charged with the main and the alternative charges. Both had distinct factual basis. Both were also proven clearly by the evidence led. The challenge is a technicality at the expense of addressing the substance of the misconduct charge.

Hearing Officer did not exhibit bias in the matter. She invited mitigation from Applicant, which mitigation was not forthcoming. If applicant was of the view that he had been given a short time within which to mitigate he should have sought an extension of the time. Hearing Officer in any event considered mitigation factors which were apparent to her from the facts of the case. The mitigation argument is also a subject of an extant appeals officer’s determination and cannot be related to in these review proceedings.

3.   The circumstances of the matter complained about do not in any way demonstrate that the dismissal was premeditated. Promotion is at the employer’s discretion and decision not to promote applicant was not improper. Contrary applicant was not made to submit reports on frivolous matters but whenever such reports were requested these were valid as employer was acting on sound suspicions of misconduct on appellant’s part.

In the result the respondent prayed that the application be dismissed with costs for lacking in merit.

On the date of the hearing of the review application the applicant indicated that it had

also filed another appeal with the Ministry of Labour. He could however not recall whether the issues before the Ministry of Labour were similarly worded with the issues in the instant application. Confirmation of the status of the appeal before the Ministry of Labour prompted the court to defer the proceedings to a date when the applicant would be clear of the status of the Ministry of Labour case. On resumption of the review proceedings the applicant advised the court that the respondent was dropping the point in limine vis the propriety of the review application in the wake of the Ministry of Labour proceedings. The respondent confirmed the position. Resultantly the point in limine was dropped and the review application was determined in its merits.

Each of the grounds is addressed below:

Ground 1

It is granted that charges can be preferred in the alternative. See Nyamande v Minister of Home Affairs and 2 Others HCB14/11.

In the case at hand Applicant states that the employer preferred charges investigations were not yet complete. His argument is that if that was not so the employer would have been verry clear in what exactly it intended to charge him for. It is his view that the alternative charges are consistent with incomplete investigations.

As already stated above there is nothing remiss in charging a person in the alternative. Such charging does not at all suggest incomplete investigations. It simply

means the person charging wants to make sure that if evidence does not show that the main charge was proven then the person could be found guilty on the alternative charge. It does not necessarily mean that investigations are not complete. The problem however with the matter at hand is the hearing officer’s pronouncement that she had found the applicant guilty as charged. She did not go on to explain the fate of the charge which in her view was not properly proven.

The respondent argued that a reading of the evidence on record would show what it is that was proven by the employer. It need be noted that the verdict should not be extracted

from a reading of the entire proceedings. It should be apparent from the operative part of the decision. In the case at hand the phrase “guilty as charged” in a case where

a party was charged in the alternative is meaningless. It was incumbent on the hearing officer to state clearly which of the 2 charges the main or the alternative the one she was

satisfied had been proven. Her failure to do so indeed raises a reviewable issue. Failure to determine according to law is a basis to upset proceedings. See Read v Mathews SC70/19.

Review ground 1 being merited should succeed.

Ground 2

Bias should not be in imagined but real. See Nhari v ZABG SC6/20. In the case at hand the record is replete with evidence that applicant and his employer were embroiled in issues which the applicant styled grievances, and which employer styled non-issues. It was the employee’s view that the hearing officer’s haste to conclude the matter and not

grant him a reasonable time to mitigate was only consistent with a hearing officer who was too ready to dismiss him.

The employer says that if the application needed more time to mitigate, he should have said so. Granted, the extension could have been sought but the approach taken by the hearing officer of wanting to hurry up justice cannot escape the bias allegation raised by the applicant. It is settled that justice must not only be done but must be seen to be done. See Mupungu v

Minister of Justice CCZ7/21. The conduct of the hearing officer suggested that she was quick to dismiss the applicant on issues which the applicant says were apparent from what he calls trumped up charges meant to silence him on grievances which he had raised with the employer. The bias argument being merited as stated above should succeed.

Ground 3

This ground is intricately linked to ground 2 above. The circumstances of the matter were such that as much as there could have been conduct which was calculated to be inconsistent with applicant’s contract or which put respondent’s name into disrepute the manner in which the dismissal was birthed left a lot to be desired.

In any event it is on record that the applicant in

his defence told the hearing officer that the very chemicals complained about were not just a complaint from him only but also from the respondent itself. It therefore surprised him that he was being charged for an issue which the employer itself also complained about. The hearing officer’s haste and endeavour to get mitigation from the facts of the case to conclude on dismissal was consistent with the applicant’s view that his dismissal was not birthed by proceedings which adhered to his right to be heard principle. See ZESA Enterprises Pvt Ltd v

Stevawo SC147/15.

The ground being merited should also succeed.

In the ultimate it was apparent that the whole proceedings leading to the applicant’s dismissal were impeachable for the reasons already outlined. Whether or not he was indeed guilty on

a substantive plane was a debate for another day. Suffice to conclude that the law is clear that where it is apparent that procedure has been flouted such should be put right. See Proton v Takaendesa 2005(1) ZLR 60(SC).

The court is alive to the fact that technical glitches should not cause an employee to get his job back. See Air Zimbabwe Pvt Ltd V Mnensa SC89/04 but it should be clear that the guilty

verdict if it has to stand should have been arrived at in the correct procedural context. That did not happen in the case at hand hence the court order that the applicants’ guilt be re-determined by another hearing officer following all due processes of natural. It is for the above reasons that Order LCH ORD/44/25 was handed down on 13 February 2025.

Gill Godlonton & Gerrans	Respondent’s Legal Practitioners