Pilani Kumbula & 10 Others v Pacprint (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/272/14
HELD AT HARARE 26TH JULY 2013
CASE NO
JUDGMENT NO LC/H/272/14
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/272/14

HELD AT HARARE 26TH JULY 2013		      CASE NO LC/REV/H/139/12

& 9TH MAY 2014

PILANI KUMBULA					Applicants

& 10 OTHERS

PACPRINT (PVT) LTD				Respondent

Before The Honourable G Musariri, Judge

For Applicants		Mr M Hungwe, Attorney

For Respondent 		Mr S Sadomba, Attorney

MUSARIRI, G:

Applicants worked for Respondent.  A collective job action took place.  Respondent charged Applicants with misconduct.  Thereafter Respondent dismissed Applicants from its employ.

Applicants filed in this Court an application for review of their dismissal.  Respondent opposed the application.  The grounds of review were basically three-fold thus,

None observance of the rules of natural justice;

Improperly constituted disciplinary committee; and

Selective application of the disciplinary process.

I consider the 2nd ground as decisive.  I shall therefore deal with it exclusively.

The applicable code required that a disciplinary panel should include two (2) employee representatives.  These were normally seconded to the panel by the workers committee.  In this case the workers committee apparently refused to

co-operate.  As a result the hearings took place without the representatives.  Respondent argued that by boycotting the hearings Applicants effectively waived their right to challenge the disciplinary panel.  I respectfully disagree.

An improperly constituted disciplinary panel does not have the lawful authority to hear and let alone determine disciplinary cases.  Proceedings conducted by such a panel are simply null and void.  This position was clearly enunciated in the matter of

Madoda v Tanganda 1999 (1) ZLR 374 (S)

where SANDURA JA at p 378 C stated that,

“In the circumstances, I am satisfied that the absence of two members of the workers committee from the disciplinary hearing on 20th January 1998 was a fatal irregularity which vitiated the proceedings.

That in fact is the end of the matter.””

(The underlining for emphasis is mine)

One might ask what is the remedy for an uncooperative workers committee which refuses to second its members to the hearing.  The answer is section 101 (6) of the Labour Act [Chapter 28:01].  It entitles either party to refer a matter which is not resolved within 30 days, to a Labour Officer for disposal in terms of Part XII of the Act.  Thus there is no need to empanel an improper disciplinary committee as Respondent did in this matter.

Wherefore is ordered that,

The dismissals of Applicants by Respondent is set aside;

The matter is remitted to an arbitrator, chosen by the parties or appointed by the Registrar of this Court, for determination of the charges laid by Respondent against Applicants; and

Pending the outcome of the arbitration in paragraph 2 above, Applicants are deemed to be on suspension without pay and benefits.

G MUSARIRI

J U D G E