Paradzai Muchenje v Leostarz Investments (Pvt) Ltd T/A Starz Logistics

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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 4TH
JUDGMENT NO. LC/H/178/25
CASE NO. LC/H/1322/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 4TH MARCH 2025 AND

In the matter between

JUDGMENT NO. LC/H/178/25

CASE NO.LC/H/1322/24

PARADZAI MUCHENJE	APPLICANT

And

LEOSTARZ INVESTMENTS (PVT) LTD	RESPONDENT T/A STARZ LOGISTICS

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE , JUDGE

FOR THE APPLICANT: M.S. NYANOKA FOR THE RESPONDENT:MS. I. NYAMBUYA

MAKAMURE J:

This is an application for review. The applicant raises the following three grounds :

‘1.The absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned.

Gross irregularities in the disciplinary proceedings that led to applicant’s dismissal.

Interest in the cause , bias , malice or corruption on the part of the arbitrator or adjudicating authority concerned.’

Review proceedings are provided for in the Labour Act Chapter 28:01 ( the Act) as follows:

‘92EE Grounds of review by Labour Court

Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made

in connection with is Act may be brought on review before the Labour Court shall be—

absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned:

gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.’

At the commencement of the hearing the applicant abandoned a preliminary issue which he had raised.

The background of this matter is that the respondent is a duly registered company in terms of the laws of Zimbabwe. It is in the transport operating industry. It operates trucks. The applicant was employed by the respondent as an international truck driver. He was in October 2024 dismissed from employment without disciplinary proceedings having been conducted against him. His trade union intervened. There was quite some communication between the respondent and the trade union. Thereafter on 5November 2024 a hearing was conducted against the applicant in his absence .That hearing was chaired by one I Muromba. The trade union intervened and by letter dated 11November 2024 applicant was reinstated to his position with salary and benefits. He was immediately placed on suspension pending investigations into acts of misconduct.

On 14 November 2024 he was invited for a disciplinary hearing for acts of misconduct.

The applicant was charged with the following offences:

1.Disobedience to a lawful order/instruction /and insubordination and/ disrespectful conduct;2. Sabotage. 3.Intimidation and or possession of a dangerous weapon;4.

Disrespectful conduct;5. Gross negligence.

The respondent did not however indicate the various paragraphs of the code which were violated as this would have been ideal and makes it easy to refer. See FAVCO (Pvt) Ltd v Kadzima and Others SC99/2001.

The hearing was held on 19 November 2024 and concluded on 26 November 2024.It was chaired by one Kandira, In explaining why a different person chaired the hearing , Leeroy Chimuzani who deposed to the opposing affidavit filed on behalf of the respondent stated that as I. Muromba had chaired the initial failed hearing, the view was that I. Muromba might have already hold a view which would not be fair to the applicant .It was therefore decided in the interests of fairness that a different person chaired the disciplinary hearing.

On the charge of willful disobedience to a lawful order the applicant was tasked to take a consignment to Zambia. When he got to the border, he sent a message that he had been denied entry . He therefore left the truck at the border and returned to Harare. Another driver had to be assigned to complete that task. On a different date the applicant was assigned to transport a donation to His Excellency the President of Zimbabwe’s farm. Applicant was given specific instructions to wait in Kwekwe for him to get some escort to go to the farm.

Applicant disregarded the instruction to wait in Kwekwe. Instead he drove straight to the farm which caused some security concerns which could have been avoided had he obeyed the order.

With respect to disrespectful conduct, when the applicant was assigned to go to Zambia , he was granted the necessary travel and subsistence funds. However, he went to the Administrator and asked for more funds. When he was advised that he is given only that which had been authorized he sulked at the officer and banged the door on his way out.

The sabotage charge arose from his unexplained conduct when he left a loaded truck at the border of Zimbabwe and Zambia. Had he not conducted himself in that manner , the employer would not have incurred financial loss which included sending another driver to complete the task.

The facts with respect to all the offences are on record and appear not to be in dispute.

At the conclusion of the hearing the disciplinary authority held the view that the charges were substantiated but would not persist with the charge of gross negligence since it had been conclusively dealt with long before the disciplinary proceedings were conducted. The charge related to a road traffic accident in which the applicant was involved while driving the respondent’s car. Police were called. The applicant was warned not to commit similar offences in future.

Paragraph A.9 of the applicable code (the code) provides for a disciplinary officer as follows:

‘A.9 DISCIPLINARY OFFICER

There shall be appointed a disciplinary officer to deal with or preside over disciplinary cases where there is no disciplinary committee because there are (4) four or less managerial employees and /or (6) six or less non-managerial employees in a company/ establishment.

The disciplinary officer shall ensure that the hearing is conducted in a free and fair manner.

The disciplinary officer shall hold office for a period of 2 years and may be reappointed by the employer.’

During the hearing, there was a disciplinary authority /disciplinary officer. Applicant was represented. Charges were put and the facts in support of the charges were outlined and the applicant was given a chance to respond. This happened with respect to each and every one of the charges.

Before this Court it was argued with respect to the first ground for review that the disciplinary proceedings were done contrary to provisions of the code. It was argued that when the hearing of 5November 2024 was conducted there was a disciplinary authority but that when the disciplinary hearing was properly conducted on the 19th of November 2024 there a disciplinary committee which conducted the proceedings. It was argued that the committee was improperly constituted. This ,it was submitted meant that the proceedings were null and void. With respect to the 2nd ground it was argued that there were gross irregularities in the manner that the disciplinary hearing was conducted. It was argued that a request was made for the production of documents which supported the charges but these were not availed. It was argued that this was irregular and therefore made the hearing unfair. With respect to the third ground it was argued that there was bias. It was argued that during the hearing the chairperson would adjourn and get instructions from the respondent’s Managing Director (MD).It was argued that it was the MD who had fired the applicant on 4th October2024.It was submitted that in view of these grounds the application should be granted. The following are some of the authorities cited in support of the applicant’s case: Madoda v Tanganda Tea Company Limited 1999(1)ZLR 374;Barclays Bank v Nyahuma 2005 (2)ZLR438;MMCZ v Mazvimavi 1995 (2) ZLR 353;Sable Chemical Industries v Easterbrook 2010 (1) ZLR 348(S).

In response it was argued that in addition to the heads of argument, the person who chaired the proceedings had authority to do so in terms of the code. It was argued that in view

of the limited numbers of both managerial and non- managerial posts in the respondent organization, a disciplinary authority was appointed in terms of the code.

It was argued that the person who had presided over the first hearing could not be the same person to preside over the second hearing . This was done to avoid possible bias. It was also argued that the applicant seemed to be using the terms disciplinary committee and authority interchangeably. There being no workers committee at the respondent organization , there was no disciplinary committee .The proceedings were therefore conducted in terms of the code. It was submitted that there was no prejudice suffered by the applicant by having one Kandira instead of Muromba to hear and determine the matter. With respect to the question of whether or not the applicant received a fair hearing it was argued that the hearing was fair. It was argued that the applicant was given a chance to be heard and that the tenets of natural justice were upheld. The applicant was given the documents showing the charges and the allegations. With respect to bias it was argued that there was no bias. It was argued further that the applicant had not demonstrated the alleged bias. It was argued that the allegation that the MD was consulted during the course of the hearing was not correct. It was further argued that the applicant did not demonstrate how the alleged bias had a bearing on the decision. It was also argued that after the applicant received the respondent’s decision, he made a follow up on his terminal benefits. Applicant had as a result signed for a full and final settlement of what the respondent owed him. It was submitted that this was a sign that the applicant had accepted the decision and that the proceedings had been conducted properly .The following was the authority cited on behalf of the respondent’s case: Dunmore Mupanndasekwa v Green Motor Services (Pvt) Ltd SC30/15 . The Court was urged to dismiss the application.

In reply it was argued that receipt of terminal benefits in full and final settlement thereof could not be used as proof that the hearing was properly conducted. It was submitted that the disciplinary hearing was improperly constituted and was therefore a nullity. It was also

argued that the test for bias was an objective one and once it was established that there was a reasonable suspicion that the tribunal might be biased the test was met.

In the present matter it is not disputed that the applicant was initially dismissed before any disciplinary proceedings were conducted. That was obviously improper. With the intervention of the trade union, the applicant was eventually reinstated and immediately placed on suspension. Before his reinstatement disciplinary proceedings were conducted with one I. Muromba as the disciplinary officer/authority. That too was not proper.

I think employers should respect provisions of codes that bind them with their employees. Employees have rights just as employers do. Admittedly it is not always easy to deal with an employee who the employer considers to have done wrong. That is why employment codes are there, to ensure that whoever does wrong is dealt in terms of the law. Employers should not take the law into their own hands even if they are convinced that an employee has committed an offence. The constitutional right of every Zimbabwean accused of having committed an offence is that they are presumed innocent until proven guilty. S70(1) )(a) Constitution of Zimbabwe. All employers are reminded that the supreme law of the land respects the rights of its citizens, workers included.

The applicant was later properly charged. Disciplinary proceedings were conducted against him. He was represented by trade unionists. The record shows that he was given a chance to say his side of the story. Mr Makonya the applicant’s representative protested that the charge or the charges of disobedience to a lawful order were not clear. The complainant tendered an explanation about the trip to Zambia. Mr Makonya protested against the charge of sabotage and parties agreed that its facts were similar to the charge of willful disobedience where the applicant did not complete the trip to deliver a consignment to Zambia. As a result, it was agreed to have the charge withdrawn.

When clarification was sought on the charge of possession of a dangerous weapon , evidence was called from workmates.One Davis Motsi was called as a witness. He told the hearing that he had seen a knife which the applicant used to move around with . On all the charges the applicant was given a chance to ask or seek clarification . This means the applicant cannot say that the proceedings were irregular. The applicant has not articulated exactly where and how bias was shown by the disciplinary authority. Nor is it indicated when during the course of the hearing Kandira adjourned and sought the guidance of the MD. I believe that if that had happened the representatives would have pointed this out in the same manner that they had sought clarification during the course of the hearing.

In the Madoda v Tanganda Tea Company ( above) the absence of two members of the workers committee was held to be fatal to those proceedings. Equally the substitution of a personnel manager by a group human resources manager was irregular. In the present matter the code provides that a disciplinary officer holds the post for 2years.The first person to hear the matter did so in an irregular manner. The respondent thereafter held the view that she could not preside over the same matter again. This was in order to avoid possible bias. I think this cannot be compared to the Madoda case (above). Here the respondent did so to avoid possible bias and this was in my view a protection of the applicant’s rights. It is trite that not all procedural irregularities vitiate disciplinary proceedings .

In Tachiwana Nyahuma v Barclays Bank (Private) Limited SC 67/05 the Supreme Court stated that :

…’ it is not all procedural irregularities which 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.’

Then applicant has not stated how he was prejudiced by the substitution of Ms I. Muromba by Mr Kandira. As such the substitution cannot vitiate the proceedings.

In Air Zimbabwe (Private ) Limited V Chiku Mnensa and Another SC 89/04 the Supreme Court stated that:

‘ A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee. He should escape such consequences because he is innocent.’

In the present case it is clear that the applicant committed offences which were proved on a balance of probabilities. It is also clear that the respondent substituted one disciplinary officer for another. There does not appear to be a provision in the code which provides for such substitution or such eventuality arising .

[22]I think when codes are being drafted and where ever possible, there should be alternatives in order to avoid situations like the present one happening . This is said considering that in the code governing proceedings in the present matter, when a disciplinary officer is appointed, he or she holds that position for two years. To rely on only one person for two years may be risky. There should be a fallback position to avoid inconveniences. However, there does not appear to have been any prejudice suffered by the applicant. The respondent’s failure to adhere to provisions of the code cannot under the circumstances result in applicant escaping his guilt.

[23]In view of the foregoing I find that the disciplinary officer had the jurisdiction to hear the matter; that there were no gross irregularities in the disciplinary proceedings under review and that there was no bias shown by the disciplinary officer. There is therefore no merit in all the grounds for review. Consequently, there is no merit in the application for review. It must be dismissed.

It is accordingly ordered that:

The application for review be and is hereby dismissed with costs.