Shylot Kanyera v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/212/25
HELD AT HARARE 15TH OCTOBER, 2024
CASE NO
R-LC/H/408/23 AND 10TH JUNE, 2025
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/212/25 HELD AT HARARE 15TH OCTOBER, 2024		CASE NO R-LC/H/408/23 AND 10TH JUNE, 2025

IN THE MATTER BETWEEN:

SHYLOT KANYERA	APPLICANT

And

CITY OF HARARE	RESPONDENT

Before the Honorable Chivizhe J

For Applicant: Mr. L. Seremani (Legal practitioner) For Respondent: Mr. C. Kwaramba (Legal Practitioner) CHIVIZHE, J:

This is an application for review of the decision of the Disciplinary hearing dated 31st day of March 2023 wherein the applicant was found guilty as charged and was subsequently dismissed from employment.

BACKGROUND FACTS

The applicant, Shylot Kanyera, is a former employee of the Respondent. Mr Kanyera was charged for contravening Clause 10.5 (t) Part V, Category four of the Collective Bargaining Agreement Harare Municipal Undertaking (Employment Code of Conduct) (Statutory Instrument 13 of 2015). That is any act, conduct or omission grossly inconsistent with the fulfilment of the express or implied conditions of one’s contract. The applicant joined the respondent’s services on 5 September 1996 as a General Labourer and was later promoted to the position of Senior meter reader, the position he retains to date. It is alleged that, sometime in 2021,’the applicant illegally sold and installed non-calibrated water meters at various stands in Highfield Township inclusive of 1054,6363,2918,2936.

Harare Municipal investigations revealed that the applicant approached several stand owners in Highfield suburb where he performs his meter reading duties, after noticing that several households had faulty water meters. Instead of him advising the rate payers to replace the faulty

water meters at the District Office in accordance with Council procedures, it is alleged that the applicant offered to sell and install new water meters without the involvement of council. A disciplinary hearing was therefore scheduled for the determination of the charges put against the applicant. The respondent submitted that the applicant was afforded an opportunity to be heard and he was given sufficient notice of hearing. In the notice of opposition, the respondent alluded that, the matter was postponed more than five times at the applicant’s instance even though there was no sufficient basis for the postponements.

The respondent further submits that, at the last hearing held on 15March 2023 neither the applicant or his lawyer showed up at the hearing even though the notification for hearing was served on the applicant. In the absence of any explanation for the non -attendance, the Committee proceeded with the hearing

Per contra, the applicant in his heads of argument submitted that the Disciplinary Hearing Committee proceeded to hear the matter in his absence despite knowing the applicant was sick and that he was granted sick leave during the scheduled dates of the hearing. The applicant contended that he notified the disciplinary hearing chairman that he was sick and he was granted sick leave but the chairperson proceeded with the hearing in his absence. It is on this basis that the applicant has approached this court for a review of the proceedings which were held before the Disciplinary Committee.

Grounds of Review and Relief Sought

The applicant raised the following ground of review, that there were

Gross irregularities in the proceedings since Applicant was sick when the hearing was conducted in his absence and the decision of the disciplinary hearing failed to follow the principle of natural justice.

The applicant is therefore seeking the following relief, that,

The application for review be and is hereby allowed

The findings of the Disciplinary Committee be and is hereby set aside.

The matter be and is hereby referred back to a different Disciplinary Committee for a hearing de novo.

Pending the disciplinary hearing, Applicant be and is hereby reinstated to his former position without loss of salary and benefits from the date of unlawful dismissal.

Respondent bears the costs of the application

ISSUE FOR DETERMINATION

From the ground of review raised by the applicant, the following issue is arising for determination,

Whether or not the disciplinary proceedings conducted in the absence of the Applicant, who was reportedly unwell, amounted to a gross irregularity and violated the principles of natural justice

THE LAW

Section 92EE of the Labour Amendment Act 2015 provides for reviews by the Labour Court. The three grounds on which any proceedings or decision conducted or made in connection with the Labour 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.

APPLICATION OF THE LAW

Whether or not the disciplinary proceedings conducted in the absence of the Applicant, who was reportedly unwell, amounted to a gross irregularity and violated the principles of natural justice.

In his heads of argument, the applicant submits that the Disciplinary Committee proceeded with the hearing in his absence, notwithstanding their knowledge that he was unwell and on approved sick leave. He maintains that he duly notified the chairperson of the committee about his illness and the granted leave. Despite this, the chairperson allegedly went ahead with the proceedings, ultimately reaching a finding of guilt against him. The applicant contends that

this conduct amounted to a breach of the principles of natural justice and a violation of his fundamental right to be heard. The applicant has also attached in evidence the sick leave form which is marked Annexure C, sick records from Karanda Hospital marked as Annexure D and a letter from the Respondent confirming his condition marked as Annexure E.

The applicant referred the court to the case of Hippo Valley Estates Limited & Anor v Minister of Environment, Water and Climate HH235-18 where the Honourable Judge remarked that,

“The audi alteram partem rule is a principle of natural justice. It enjoins decision- makers to hear the other side before he/she makes a decision which adversely affects the rights of the other party. The principle has its origins in the biblical story of Adam and Eve when they partook of the forbidden fruit. God did not just impose a punishment against them for having failed to obey the rule which he had directed them to obey at all times. He called upon them, each in turn, to justify his or her conduct

.He imposed the punishment upon each one of them when each failed to acquit himself or herself.

The above-mentioned principle became part of modern Zimbabwe’s law. It was born under the Administrative Justice Act, [Chapter 10:28]. Section 3 of the mentioned Act is pertinent. It reads, in the relevant part, as follows:

“3.   Duty of Administrative Authority

An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectation of any person shall–

act lawfully, reasonably and in a fair manner; and

---; and

---.

in order for an administrative action to be taken in a fair manner as required by paragraph (a) of subs (1), an administrative authority shall give a person referred to in subs (1) –

adequate notice of the nature and purpose of the proposed action; and

a reasonable opportunity to make adequate representations; and

adequate notice of any right of review or appeal where applicable.”

The applicant has also submitted that the Disciplinary Committee was biased against him. It did not afford him an opportunity and a right to rebut evidence against him instead it only allowed witnesses to testify against him. He was not afforded an opportunity to cross examine the witnesses. He also contends that it was improper for the respondent to invite him to a disciplinary hearing well knowing his condition that he was sick. This clearly showed bias on the Respondent’s part.

The respondent is not disputing the fact that the right to be heard is a well -entrenched principle of natural justice. The respondent submits that at the core of this right is the entitlement of every person to be afforded an opportunity to make representations before any decision is taken that might infringe upon their rights, interests or legitimate expectations. The court is referred to the case of Zesa Enterprises (Pvt)( Ltd) vs Aloyce Roy Stevawo SC29/17 where Malaba JA ( as he then was) held that,

“The crisp issue for determination is whether the respondent was denied the right to be heard in the circumstances of this case. The right to be heard is a fundamental cornerstone of our law. It is a fundamental principle of the rules of natural justice forming the backbone of a fair hearing enshrined in our constitution as read with the Administrative Justice Act [Chapter 10:28] The maxim that no one shall be condemned without being heard holds sway in our law. The right to be heard is however not an absolute immutable rule of law. It can be waived or forfeited where the beneficiary is at fault. It is now necessary to ventilate the law and apply it to the undisputed established facts as narrated above.

Professor G Feltoe in his booklet, A Basic Introduction to The Administrative Law of Zimbabwe, states at p 18 that the principle of natural justice can be waived when he says:

“Clearly when a person is offered the chance to exercise one of the rights recognized as being part of the principles of natural justice and he declines to avail himself of this right, then he has waived his right.”

The same learned author proceeds to elaborate in his other book, A guide to Administration and Local Government Law, 2009, at p 57 that:

“Where a party due to his own fault fails to attend a hearing after being properly notified to attend, the enquiry can proceed in his absence.”

Applying this settled legal principle to the present case, the respondent submits that the applicant was duly notified of the disciplinary hearing scheduled for 15 March 2023.The matter had been postponed making it the 5th postponement at the applicant’s instance. Despite receiving proper notice neither the applicant nor his legal practitioner attended the hearing. The record reveals that no credible or substantiated reason was provided for their absence

The respondent contends that the medical documents produced were only sufficient to exempt the appellant for a specific period. The documents also relate to a period well after the disciplinary hearing had been conducted. The documents therefore cannot assist the Applicant in any manner.

Accordingly, the respondent submits that the disciplinary committee acted lawfully and within the bounds of fairness in proceeding with the hearing in the applicant’s absence. Failure to attend the hearing without just cause or evidence, the applicant effectively waived his right to be heard. The committee was therefore not in breach of the principles of natural justice.

Further, In the case of Moyo v Rural Electrification Agency SC 04/14 it was held that,

“Where a person willfully defaults from attending a disciplinary hearing, he or she would have waived the right to challenge the conduct of the proceedings… it is therefore a cardinal principle that where a party deliberately absents himself or herself from a disciplinary hearing without leave, he or she would have waived his or her right to challenge the conduct of the disciplinary hearing”

The respondent also disputes that there was bias against the applicant.

In light of the foregoing, I am inclined to agree with the position advanced by the respondent. The evidence on record supports the conclusion that the applicant was duly notified of the hearing set for 15 March 2023 but failed to attend without providing any credible justification or supporting documentation for his absence. In doing so, the applicant effectively waived his right to be heard. As the authorities cited demonstrate, the right to be heard, though fundamental, is not absolute and may be forfeited where the beneficiary is at fault. It is also clear on the basis of the evidence in the record that the Applicant on at least five occasions had sought postponement of the hearing but failed to produce the sick notes. The Dr’s certificate placed in the record dated 30th March, 2023 was dated well after the disciplinary

which was on the 15th March, 2023. The purported authority from employer to proceed on sick leave on page 98 is also not signed by the employer. I therefore find that the disciplinary committee was justified in proceeding with the hearing in the applicant’s absence, and that no violation of the principles of natural justice occurred in the circumstances of this case. His claim of bias also cannot stand in circumstances where he absconded from the hearing.

DISPOSITION

Wherefore it is ordered that,

The application for review be and is hereby dismissed: and

Each party shall bear its own costs