Samuel Mudzingwa v Mike Appeal Organisation Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/303/14
HARARE ON 7 JUNE 2011,
CASE NO. LC/REV/H/32/11
AND 23rd MAY, 2013
JUDGMENT NO LC/H/303/14
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/303/14

HARARE ON 7 JUNE 2011,  			    CASE NO. LC/REV/H/32/11

AND 23rd MAY, 2013

In the matter between

SAMUEL MUDZINGWA						APPLICANT

AND

MIKE APPEAL ORGANISATION LIMITED			RESPONDENT

Before The Honourable B.T. Chivizhe, Judge

For The Applicant	:	In Person

For The Respondent	:	Mr O. Mutero - Legal Practitioner

CHIVIZHE, J.

The matter was placed before me as an application for review.

The grounds for review were outlined to be as follows;

The disciplinary committee was biased and failed to recuse itself from hearing the matter.

Applicant was denied an opportunity to cross-examine Mr Du Sat.

Applicant was denied a proper opportunity to cross-examine Mr Tafadzwa Jeure.

The Disciplinary Committee pre-determined the applicant’s dismissal.

The background facts are that the applicant was employed as a Manager at Hard Chrome Company. He was charged with two acts of misconduct arising from allegations that he had on the 35th November 2009 paid $100.00 as booking fees for Mlibizi Lodge without seeking approval. He then from December 24th – 31st 2009 abused the facility at Mbibizi by allowing Mr Du Sat who was not a company employee and his family to occupy the company facilities for 8 days using applicant’s receipt thus prejudicing the company of $1 419.00. On the second count it was respondent’s allegation applicant had failed to detect a private job machined in the workshop.

The applicant was seeking an order to set aside the decision of the Disciplinary Committee.  I shall address the issues seriatim.

Alleged Bias

It was contended by the applicant that the Disciplinary Committee having earlier sat on two occasions and those proceedings having been vitiated the Disciplinary Committee was potentially biased.  The Disciplinary Committee had refused to recuse itself upon request by the applicant.

The respondent in its opposing paper submitted that there is nothing on record to suggest that the Disciplinary Committee was biased.  The respondent conceded that the Disciplinary Committee had indeed sat twice, the proceedings in first hearing were vitiated as the respondent had used a wrong Code of Conduct.  The second hearing actually proceeded as a default case as the applicant failed to appear.  The respondent again consented to these proceedings being set aside before the Labour Officer and the respondent was consequently reinstated with no loss of salary and benefits.

The applicant having failed to produce any evidence supporting the allegation of bias it was respondent’s contention that the allegation of bias was unfounded.

It is a principle now firmly established in our law that bias must be real.  It cannot be based on mere allegations or be entirely speculative.  In ANZ (Pvt) Ltd & Anor vs Diamon Insurance Co. (Pvt) Ltd 2001 (1) ZLR 226 the court pointed to the need to establish a link between the conduct alleged to form the basis of the allegation of bias and one of the parties to the litigation.  In casu the applicant has failed to clearly establish that the Disciplinary Committee was biased on the basis of the committee having sat in the two earlier hearings.  See also Leopold Rock Hotels Co. (Pvt) Ltd & Anor vs Wolen Construction (Pvt) Ltd 1994 (1) ZLR 225 where the test for bias was stated to be whether there exists circumstances which may engender a belief in the mind of a reasonable litigation that in the proceedings concerned he would be at a disadvantage.  In casu, no such evidence has been shown by the applicant.  In the circumstances the allegation of bias cannot be sustained.

Mr Du Sat’s Evidence

The applicant alleged that he had not been given an -opportunity to cross-examine the witness Mr Du Sat whose letter explaining in detail what had transpired had been relied upon by the Disciplinary Committee.  The respondent counter argued that during the hearing it was made clear to applicant that the respondent had in its possession a receipt issued in favour of the applicant and a copy of Mr Du Sat’s letter explaining what had transpired.  The respondent had indicated it was not going to call Mr Du Sat as a witness.  Applicant had been advised to call Mr Du Sat as his witness but he failed to do so.

The record shows clearly that the Disciplinary Committee did indicate clearly it was not calling for the witness Du Sat’s evidence, it was instead going to rely on the evidence of the receipt and the letter.  The onus therefore clearly shifted to the applicant.  It is not clear why the applicant who was legally represented at the time did not discharge the onus on him.

Mr Tafadzwa Jeure’s evidence.

The applicant contended that he had not been given a proper opportunity to cross-examine the witness Mr Tafadzwa Jeure.  The witness had been removed abruptly from the disciplinary hearing during cross-examination by the applicant’s lawyer when it became clear that the witness was about to change from his earlier testimony.  The respondent’s counter argument was that the applicant had been given ample opportunity to cross-examine the witness.

The record shows that indeed the applicant’s legal practitioner of the record did raise the issue with the Disciplinary Committee that the witness had not been properly examined to establish the time frame to be taken in making the brushes.  The applicant has not raised the point with sufficient clarity it is not clear how he was prejudiced by the failure to properly cross-examine the witness on the point.

Pre-determination of the matter

The last issue raised by the applicant is that the respondent had pre-determined his case.  This was clear on the basis of the respondent’s deduction from his salary of the perceived loss to the company before the Disciplinary Committee handed down it determination.

The respondent submitted that there was nothing on record to prove that the respondent had pre-determined the matter.  The respondent was entitled to recover the money being the loss suffered as a result of applicant’s conduct in allowing Mr Du Sat who had nothing to do with the respondent to occupy respondent’s property without paying for it.

The record shows that the Disciplinary Hearing Committee sat to determine the matter on the 19th of March 2010.  Its determination was handed down on the 31st of March 2010 and received by the applicant on 1st of April 2010.  The deduction of $1 000 being the loss the respondent allegedly suffered as a result of Du Sat’s accommodation and other services accepted at respondent’s holiday resort whilst it is clear that the respondent did indeed pre-determined the case by deducting the amount before determination had been handed down the most important issue is that of prejudice.  It is important to note that the applicant has not challenged the substance of the charge.  The applicant was facing two charges viz;

Violating of Part C, Section 9 of Mike Appeal Organisation  Code of Conduct – serious offence.

“Dishonesty or deliberate misrepresentation

Violation of Part (g) Section 10 of the Code of Conduct – major offence

“Any act in conflict with the group’s activities”

In regards the first charge the applicant does not dispute that he arranged for accommodation for Mr Du Sat and 8 other people at subsidised rates.  They stayed at the lodge for eight nights resulting in prejudice to the employer.  In the hearing the employer relied on the receipt and a letter by Mr Du Sat.  The burden of proof thus shifted to the applicant.  The opportunity was presented to the applicant to call Mr Du Sat if he intended to disprove the evidence.  He did not do so.  Clearly whilst the employer did commit a procedure irregularity it was not sufficient to vitiate the proceedings.  Applicant gave his friends a company benefit they did not pay for the company had to recover ……

Applicant in Person.

Sawyer & Mkushi Legal Practitioners, for the Respondent.