St Giles Rehabilitation Centre v Tapiwa Mhere

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/267/2023
HARARE, 25 JANUARY 2023
CASE NO LC/H/756/22
AND 11 SEPTEMBER, 2023
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 25 JANUARY 2023

AND 11 SEPTEMBER, 2023

JUDGMENT NO LC/H/267/2023 CASE NO LC/H/756/22

ST GILES REHABILITATION CENTRE	APPELLANT

TAPIWA MHERE	RESPONDENT

Before the Honourable Chivizhe Judge:

For Appellant	Mr Mangezi (Legal Practitioner)

For Respondent	Mrs P.R. Zvenyika (Legal Practitioner)

CHIVIZHE, J:

The Appeal before the court is an appeal against the determination made by the National Employment Council for Welfare and Educational Institutions Appeals Committee) dated the 1st of July 2022.  The appeal is opposed.

The material background facts to the matter are as follows. The Respondent was formerly employed by the Appellant as a Driver. He was dismissed from employment on 22 October 2021 following disciplinary proceedings. The charge that had been levelled was that of breach of Schedule 4;3 and 4:10 of the National Employment Council for Welfare and Educational Institutions (NECWEI) Employment Code of Conduct. This clause provide for

“Abuse of items intended for beneficiaries.” And (b) Deliberately giving untrue, erroneous or misleading Information or testimony whether verbally or in writing”

The allegations were that Appellant had on 8th of September, 2021 used the Respondent motor-vehicle for personal use without authorisation from his Supervisor. It was further alleged that he had also used the vehicle for personal use on several other occasions. In regards the second charge the allegations were that Respondent had given untrue and conflicting information in order to mislead the authorities. The Respondent was found guilty of the charges and a dismissal penalty was consequently imposed on him. The Respondent was aggrieved with the determination. As his intended appeal was already out of time he

initially noted an application for condonation and when that was granted on 29 March 2022 he then filed his appeal before the NEC Appeals Committee on 4 April 2022. The NEC Appeals Committee through a determination handed down on the 18th of July, 2022 found that the disciplinary proceedings were marred with procedural defects. The Appeals Committee consequently found the Respondent not guilty of misconduct.

The Appellant was aggrieved and noted the present appeal against the determination of the NEC Appeals Committee.  The Appeal has been noted on the present grounds;

The National Employment Council for Welfare and Educational Institutions Appeals Committee erred and grossly misdirected itself in coming to the conclusion that the procedural defects were meritorious without examining whether such procedural defects established that the Respondent was not guilty of the offence charged.

The National Employment Council for Welfare and Educational Institutions Appeals Committee also erred and grossly misdirected itself in coming to the conclusion that the dismissal was substantively unfair when it was clear that the Respondent had proceeded to ferry an employee he had earlier dropped off without authorization from his supervisor in violation of the rules and practices at the workplace.

The National employment Council for Welfare and Educational Institutions Appeals Committee also erred and grossly misdirected itself in coming to the conclusion that the penalty meted on the Respondent was harsh without taking into account that the aspect of a penalty in disciplinary proceedings is at the discretion of the employer.

The Appellant in its prayer, seeks, once the appeal is granted, for the setting aside of the determination of the NEC Appeals Committee and substitution with an order to the following effect;

“The dismissal of the Respondent from Appellant’s employment with effect from Friday the 22nd of October, 2021 be and is hereby confirmed.”

The appeal is opposed by the Respondent. Through the Notice of Response filed of record Respondent contends, in regards the first ground of appeal that the NEC Appeals Committee was correct in the verdict reached to set aside the proceedings as the proceedings were awash with procedural defects. In regard the second ground Respondent contends that the NEC Appeals Committee did not err in reaching the conclusion that the dismissal was unfair as the record would attest all the witnesses testified that the Respondent had not committed any misconduct. The NEC Appeals Committee was therefore bound by the evidence in the

record. On the last ground of appeal Respondent avers that the NEC Appeals Committee was correct in finding that the penalty of dismissal was unduly harsh in the circumstances. The Appellant having failed to make opposing submissions on penalty before the NEC Appeals Committee the NEC Appeals was correct in taking the point as admitted to. The Respondent prayer is for the appeal to be dismissed with costs for lack of merit.

PARTIES SUBMISSIONS

The parties appeared before the court and made oral submissions. Mr Mangezi, for the Appellant, emphasised on the position of the law with regards procedural irregularities disciplinary proceedings. He submitted that the position has been clearly stated in authorities such as Barros & Anor vs Chimpondah 1999(1) ZLR 58(5) that the Appellate Court can only interfere with a decision by an inferior court/tribunal in certain specific circumstances as outlined in Appellant papers. Further that in Air Zimbabwe Private Limited vs Chiku Mensa SC 89/2004 it had also been stated that an employee should not be allowed to escape the consequences of his misdeeds merely because of a   failure to conduct disciplinary procedures. He should escape because he is innocent. Even further it was also the position at law that it is not all procedural irregularities that have the effect of vitiating disciplinary proceedings. In order for one to succeed in setting aside procedural irregularities a party must necessarily establish/ prove prejudice.

Mr Mangezi, submitted that in casu, the NEC Appeals Committee clearly erred in reaching a not guilty verdict given the factual circumstances around the case. The Appellant further submission was that even with the existence of procedural irregularities as raised by the Respondent the NEC Appeals Committee should not have proceeded to vitiate the proceedings in the absence of any evidence tendered by the Respondent to establish the issue of prejudice.   In Nyahuma vs. Barclays SC 67/05 the Supreme Court had outlined that where procedural irregularities had been found to exist the tribunal had to either remit the matter for a hearing de novo or proceed to hear the matter afresh provided it had the evidence before it in the record. On this basis it was Appellant contention the NEC Appeals Committee having clearly acted upon a wrong principle their determination could not stand.

In regards, the second ground of appeal, Mr Mangezi, disputed that the witnesses had stated that Respondent was innocent of the charges. He further contended that the Respondent having in his mitigation admitted to the charge there was no basis for NEC Appeals Committee to have found him innocent. In any event the facts clearly showed the

Respondent had breached a standing policy at Appellant workplace that he could not return to pick up an employee dropped at a certain place and transport him/her to another place. The fact that some of the witnesses had testified that Respondent was innocent was immaterial. In Appellant’s view, the Respondent having clearly failed to establish/prove any prejudice suffered as a result of the procedural irregularities it was incumbent upon the NEC Appeals Committee to returned a verdict of guilty.

On the last issue of the penalty, Mr Mangezi submitted that the NEC Appeals Committee had erred in finding Respondent not guilty in circumstances where Respondent had made an express admission to the charge.   It was also the position at law, that, the issue of an appropriate penalty is at the discretion of the employer. The NEC Appeals Committee could only interfere in the event of a misdirection on the part of the disciplinary committee. The Respondent having failed to point to any such misdirection by the Disciplinary Committee the NEC Appeals Committee had no basis for interfering with the penalty of dismissal, so imposed by the employer. Appellant had referred to authorities in its heads including Malimanji vs CABS 2007 (2) ZLR 77(5) at 80 B- C; Celysis Limited vs Ndeleziwa 2015(2) ZLR 62(5) at p 65. On the basis it was Appellant prayer for the appeal to succeed.

Mrs Zvenyika, for the Respondent, in reply, submitted that the NEC Appeals Committee was correct in finding that there had been procedural irregularities sufficient to vitiate the disciplinary proceedings. She made specific references to the aspect that verdict had been made by the Chairperson of the Disciplinary Committee alone instead of the members of the Disciplinary Committee, in clear violation of the Code provisions. The record also showed that the Respondent’s Supervisor had also clearly admitted in the hearing that he had not carried out an investigation as required under the Code provisions in clause 6.2.1. The Respondent position was that the procedural irregularities in this case were thus sufficient to vitiate disciplinary proceedings. Respondent had also referred to Nyahuma vs. Barclays Bank of Zimbabwe SC 67/05. Mrs Zvenyika further submitted that contrary to Appellant position, there was clear prejudice to the Respondent in that he had been hauled to a disciplinary hearing in the absence of a proper investigation. With regards she to the view that should this court establish that there were indeed procedural irregularities sufficient to vitiate proceedings the remedy would not be a   remittal for a hearing de novo as the fact would still remain there was no proper investigation conducted before charges were levelled. The provision in the code was couched in peremptory norms. As such the Appellant should

not be given a second bite of the cherry. The court was urged to find that the NEC Appeals Committee properly found the Respondent not guilty on the charges.

In respect of the second ground of appeal Mrs Zvenyika contended that the NEC Appeals Committee was corrected in returning a verdict that proceedings were substantially unfair. In arriving at this conclusion the Committee had to have considered the witnesses’ submission which were to the effect that Respondent was innocent. The Committee had also considered the other evidence in the record. On the aspect of Respondent having conceded to the charge whilst tendering his mitigation Mrs Zvenyika disputed this position. It was her sub mission that it is generally the procedure when one is convicted of the charge to lead evidence in mitigation. This did not by saying any of imagination amount to a concession by Respondent to the charge. The Respondent had maintained his innocence throughout the hearing.

On the last issue of penalty, Mrs Zvenyika maintained that the NEC Appeals Committee was correct by returning a not guilty verdict thus altering the penalty. This was clearly in view of there being no opposition from the Appellant to the submissions made by the Respondent that the penalty was unduly harsh. The principle of law that “What is not opposed is taken to be admitted’’ applied to the circumstances. The Respondent had also referred to authorities in Hama vs National Railways of Zimbabwe 1996(1) ZLR 664(S) and ZINA vs Mwoyounotsva SC 28/15 in support of his position that a dismissal penalty was not appropriate in the circumstances.

EVALUATION

I shall address the issues as arising in this case.

WHETHER	THE	PROCEDURAL	DEFECTS	WERE	SUFFICIENT	TO	VITIATE PROCEEDINGS

It is trite that an appellate tribunal will, only in limited circumstances, interfere with the excise of a judicial discretion by a lower tribunal. In Barros and Anor vs. Chimphonda 1999(1)ZLR158(s) the court expressed itself thus;

“it is not enough that the appellant Court would have taken a different course from the trial Court. It must appear that some error had been made in exercising the discretion, such as acting on a wrong principle, allowing extraneous or irrelevant considerations to affect its decision, making mistakes of facts or not taking into account relevant considerations”

The NEC for Welfare and Educational Institutions Appeals in their decision to overturn the Respondent’s conviction and dismissal from employment made several critical findings; firstly, that the verdict was made by the chairperson instead of the disciplinary committee in violation of clause 7.2 and 9.1 of the NEC Code of Conduct, secondly, that the supervisor had admitted that he had not carried out the necessary investigations so as to establish the alleged misconduct and the circumstances. The relevant part of the decision reads as follows;

“The committee finds Appellant claim that the disciplinary proceedings had some procedural defects being meritorious. The minutes of the record of proceedings indicate that the verdict was made by the chairperson instead of the disciplinary committee. This was a direct violation of clauses 7.2 and 9.1 of the mentioned code of conduct. The minutes also indicate that the supervisor admitted that he had not carried out the necessary investigation so as to establish the alleged misconduct and its circumstances. The supervisors conduct was a clear breach of clause 6.2.1 of the above highlighted code of conduct.

The committee also finds the Appellant contention that the dismissal was substantively unfair because the facts of the matter in the circumstances of the alleged offense were not established holding true. The minutes of the record indicate that all witnesses were called to testify as well as the supervisor stated that the Appellant was innocent of the alleged conduct.

In the absence of opposing submissions from the Respondent, the committee cannot make any otherwise assessment of the matter similarly; the Appellant argument that the penalty was harsh under the circumstances cannot be assessed otherwise without any opposing submission from the Respondent.

In view of the following the tribunal cannot make a finding of misconduct against the Respondent.”

The Appellant submission is that the Appeals Committee erred in failing to establish if indeed the Respondent was prejudiced by the procedural irregularities and then proceeding to determine whether in actual fact the Respondent was guilty or not.

The Respondent submission is that the Appeals Committee was correct in the conclusion reached that there were procedural irregularities and that there were sufficient to vitiate the proceedings. In the court’s findings it is indeed the position of the law as laid out in Nyahuma vs Barclays Bank of Zimbabwe SC 67/05 that it is not all procedural irregularities that vitiate proceedings, in order to succeed it must be shown that the party concerned was prejudiced by the irregularity. The Supreme Court stated words as follows;

“……..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.’

The facts, in casu, indicate that indeed it is the Chairperson who came up with the verdict. This is apparent from a reading of the record. The Appellant does not contest the position. Appellant position is that the NEC Appeals Committee before finding that the irregularity was sufficient to vitiate the proceedings ought to have looked into the issue of prejudice and secondly establish whether the Respondent was guilty or not. With respect this is not the approach as laid down in authorities.

It is indeed correct that Respondent had a duty to prove/establish prejudice but it is the court’s view that the circumstances on their own were clearly prejudicial to the Respondent. The fact that he had not specifically pleaded prejudice would not alter the position that the irregularity was clearly prejudicial. The Code in its clauses 7.2 and 9.1 laid a requirement for the verdict to be reached by a Committee and not by the Chairperson on his own.

The Appellant has further submitted that the NEC Appeals Committee should have considered whether Respondent was in actual fact guilty or not. No such requirement is laid in the authorities. The authorities instead point to the need for the Appeals Committee to carry out an assessment as to whether the procedural irregularity is fatal or not. Where the irregularity was not fatal the NEC Appeals Committee would have directed a remittal for the proceedings to be conducted afresh. Where however the irregularity was fatal the NEC Appeals Committee was duty bound to direct the setting aside of the whole proceedings. It is clear in casu the NEC Appeals Committee’s view was that there had been a violation of the Code provisions in clauses 7.2, 9.1 and 6.2.1 and this was fatal. Can this finding be said to be an error and therefore a gross misdirection. Certainly not. The ground of appeal must clearly fail.

WHETHER THE APPEALS COMMITTEE ERRED AND MISDIRECTED IN FINDING AN UNFAIR DISMISSAL

With respect to the second ground the Appellant contends that the NECFI Appeals Committee Appeals Committee erred and grossly misdirected itself in coming to the conclusion that dismissal was substantially unfair in view of the factual circumstances surrounding the alleged misconduct. The record shows that the Appeals Committee after

finding that there were fatal procedural irregularities proceeded to make another finding based on the issue of conviction. The Appeals Committee as indicated above found that both the conviction and the penalty of dismissal imposed were unfair taking into account the factual circumstances as placed before the Disciplinary Committee. The NEC Appeal Committee also relied on the evidence in the record such as the testimony of the witnesses.

The Appellant is challenging the findings of the Appeals Committee on the basis, firstly, that it is not correct that all witnesses stated that Respondent was innocent of the charges. Secondly, the Respondent himself had in mitigation apologised and sought forgiveness from the employer, The Appellant also alleges the Appeals Committee, improperly relied on witness testimony to find Respondent innocent thus falling into an error. In the court’s finding the ground has no merit. As indicated above the Appeals Committee was not obliged to proceed to determine the issue of guilt after finding there were procedural irregularities which were fatal and thus sufficient to vitiate the  proceedings. Having found that there had not been any proper investigation of the matter it would not have been proper for the NEC Appeals Committee to proceed itself to consider the evidence in the record including that of the witnesses. The proper course would have been to direct setting aside of the disciplinary proceedings, reinstatement of the Respondent without any loss of salary and benefits. The Appellant would then exercise the option of instituting fresh disciplinary proceedings provided it complied with the relevant Code of Conduct. This would mean proper investigations had to be carried out in compliance with the code and there will be need to ensure that there was proper participation in the decision making by the whole Disciplinary Committee not by just the Chairperson.	The Appellant in paragraph 12 concedes to this approach which is the first approach as laid down in the celebrated judgement in Dalny Mine vs. Banda 1999(1) ZLR 220 where McNally JA stated as

follows;

“As a general rule it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored I mean that procedural irregularities should be put right. This can be done in one of two ways;

By remitting the matter for hearing de-novo and in a procedurally correct manner.

By the tribunal hearing the evidence de-novo.

Reference has also been aptly made by Appellant to Unifreight Limited vs. Leighton Madembo SC 6/18. Whilst indeed the Appeals Committee acted upon a wrong principle in

proceeding to determine the issue of Respondent guilt the Appeals Committee was however correct in the first finding made that there were fatal procedural irregularities in the disciplinary proceedings. Having come to this conclusion it is no longer necessary for the Court to proceed to determine the issue of penalty which is the third ground of appeal. It is also apparent this Court has reached the same decision as the NECFI Appeals Committee Appeals Committee but based on different considerations that the Respondent ought to be reinstated without loss of salary and benefits in order for Appellant to exercise the option to convene fresh disciplinary proceedings in a procedurally correct manner should it be so minded. It is on this basis the appeal cannot succeed.

It is accordingly ordered as follows;

The appeal be and is hereby dismissed with costs.

The determination by the NEC Appeals Committee dated 18 July 2022 is upheld.