Patience Magodo v Ken Chitando N.O. and Central Africa Building Society

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/485/2014
HARARE, 21 JULY 2014
CASE NO.
JUDGMENT NO. LC/H/485/2014
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IN THE LABOUR COURT OF ZIMBABWE       JUDGMENT NO.LC/H/485/2014

HARARE, 21 JULY 2014		           	         CASE NO. LC/REV/H/16/14

AND 01 AUGUST 2014

In the matter between:-

PATIENCE MAGODO		 				Applicant

And

KEN CHITANDO N.O.						1st Respondent

And

CENTRAL AFRICA BUILDING SOCIETY			2nd Respondent

Before The Honorable F.C. Maxwell, Judge

For Applicant		C. McGown (Legal Practitioner)

For Respondent		I. Chagonda (Legal Practitioner)

MAXWELL, J:

The Applicant was employed by the 2nd Respondent.  Following allegations of misconduct she was suspended in terms of the provisions of the National Code of Conduct SI 15/2006.  A hearing was thereafter conducted and she was found guilty and was dismissed.  Applicant appealed to the Appeals Officer but was unsuccessful.  She then appealed to Labour Relations Officer.  Conciliation proceedings were conducted but the matter was not settled and was subsequently referred to arbitration.

By mutual agreement the matter was referred to an independent arbitrator, Justice Smith.  Justice Smith ordered that the Applicant be reinstated with immediate effect but was to be suspended without pay and benefits following which a hearing was to be conducted within 14 days of the date of the award.  Justice Smith also ordered that if Applicant is found not guilty of misconduct or is found guilty but her contract of employment is not terminated she shall be paid her full salary and benefits with effect from 8 October 2012.  The award was issued on 3 October 2013.

Between 10 October and 4 February 2014 the matter was postponed several times.  On 4 February 2014 the matter was heard in the absence of the Applicant and her legal practitioners.  Applicant was found guilty and was again dismissed.  The Applicant thereafter filed this application.  The basis of the application is laid out in Applicant’s founding affidavit.  Paragraphs 1 – 34 give a background of the matter.  In paragraphs 35 to 38 Applicant makes the following submissions.

“35. I submit that the Respondents seemed more interested in conducting the hearing expeditiously rather than in a fair and impartial manner, much to my prejudice.  The Respondents insisted on conducting a hearing whilst I was still awaiting evidence necessary for the preparation for my defence and in the absence of both me and my lawyer.

36. I submit that the respondents’ actions are unlawful and constitute unfair labour practices, I submit that it is clear from the reasons outlined above that I have no chance of receiving a fair hearing before the respondents and therefore an appeal to the internal appeals officer would be futile.

37. I submit that my right to a fair hearing as enshrined in terms of Section 69 (2) of the new Constitution has been infringed, as well as my rights enshrined in sections 62 (2); my right of access to information; section 65 (1) and (4); my right to fair labour practices and equitable conditions of work: and section 69 (4) my right to be represented by a legal practitioner of my choice.

38. It is just and equitable that my dismissal be set aside and I be reinstated without loss of salary and benefits from the 8th of October 2012.”

The second Respondent filed an opposing affidavit deposed to by its Industrial Relations Manager, Chrispen Dimba.  Respondent raised a point in limine that Applicant was dismissed by the hearing officer and was advised to appeal to an Appeals Officer within seven (7) days from the date of receiving the letter of dismissal which she did not do but instead approached this Court for review.  Respondent contended that the National Code has provided adequate domestic remedies which Applicant could have followed.  Further Respondent argued that Applicant had not given any explanation as to why she has approached this Court without having first exhausted domestic remedies.

Respondent also pointed out that Applicant’s application sets no grounds of review.  It stated that there is no allegation regarding the absence or otherwise of jurisdiction, there is no allegation that the 1st Respondent was biased or was corrupt or had an interest in the cause and there is no allegation that the proceedings were grossly irregular or that the decision was grossly irregular.  Respondent prayed for the dismissal of the application on the basis of the failure to exhaust domestic remedies and to disclose the grounds of review.

The point in limine is the subject of this judgment.  At the hearing of the matter it was submitted for Applicant that the domestic remedies provide for appeals and therefore could not provide Applicant with redress as she is complaining about procedural irregulaties.  It was further submitted that the founding affidavit clearly allege that Constitutional rights and rules of natural justice were violated and the hearing was biased in favour of the employer.

The first question to consider is whether or not Applicant was justified in seeking redress in this Court.  It has not been shown that the Applicant has exhausted the remedies provided for under the National Code of Conduct SI 15/2006.  The said code does provide sufficient remedies for complaints such as the present.  Section 8 (6) & (7) of that Code read as follows:

“(6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or an Appeals Authority as the case may refer the case to a Labour Officer or Employment Council Agent as the case may be, within seven working days or receipt of such decision.

(7) The Labour Officer or Employment Council agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.”

(Underlining for emphasis)

In my view the reference to “decision or manner” accommodates complaints covering procedural and substantive issues.  The Applicant’s view that the domestic remedies do not provide her with redress cannot be correct.  In my view it is immaterial that Applicant exhausted domestic remedies before.  When new proceedings are instituted a party has to follow the whole process again.  It matters not that in previous proceedings such steps had been followed.  The proceedings are separate and distinct.

In the case of Tutani v Minister of Labour Manpower Planning and Social Services and Others 1987 (2) ZLR 88 it was stated that:

“In determining whether judicial review of the decision of an administrative tribunal is excluded or deferred and whether an applicant should first exhaust his domestic remedies, the Court will have regard to a number of factors including; the subject matter of the statute; the body of persons who exercise appellate jurisdiction; the manner in which that jurisdiction is to be exercised, including the ambit of any rehearing on appeal; the powers of the appellate tribunal, including its power to redress or cure wrongs of a reviewable character and whether the tribunal, its procedures and powers are suited to redress the particular wrong of which the applicant for review complains.”

Applicant in paragraph 36 of the founding affidavit expresses the view that she has no chance of receiving a fair hearing before the Respondent and therefore an appeal to the internal appeals officer would be futile.  I do not agree.  The domestic remedies are not confined to proceedings involving the Respondent’s Officers only.  In the event that Applicant is aggrieved by the internal processes, the National Code of Conduct SI 15/2006 provides for reference of the matter to a Labour Officer.  In other words the processes go beyond the confines of the Respondent’s structures.  Applicant has not expressed any fear of not receiving a fair hearing beyond the Respondent’s structures.  For that reason the words of SMITH J in Musunda v Chairperson Crestar Lodge Disciplinary and Grievance Hearing Committee HH-115-94 quoted in the case of Anna Green v The Chairman National Social Security Authority Appeals Committee & Another HB-10402003 are apposite.  He stated that;

“In my view, this Court should not be prepared to review the decision of a domestic tribunal merely became the aggrieved person has decided to apply to this Court rather than by way of domestic remedies provided.”

Applicant was therefore not justified in approaching this Court without exhausting domestic remedies.  As a result of this finding I find it not necessary to deal with the other issue raised by the Respondent and the objections of the Applicant vis-à-vis the deponent to the 2nd Respondent’s opposing Affidavit.  Applicant is improperly before this Court.

The point in limine succeeds.  The matter be and is hereby dismissed with costs.

VENTURAS & SAMKANGE, Applicant’s legal practitioners

ATHERSTONE & COOK, Respondent’s legal practitioners