T. Kaseke v Zimbabwe United Passengers' Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/236/2013
HARARE, 24 MAY 2013
CASE NO. LC/H/405/2011
JUDGMENT NO.LC/H/236/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/236/2013

HARARE, 24 MAY 2013			                     CASE NO. LC/H/405/2011

In the matter between

T. KASEKE				-		Appellant

And

ZIMBABWE UNITED		-		Respondent

PASSENGERS’ COMPANY

Before The Honourable B.T. Chivizhe: President

For Appellant 	-	Mr B. Svasvikiro - (Trade Unionist)

Transport and General Workers’ Union

For Respondent	-	Mr C. Daitai – (Legal Practitioner)

Magwaliba and Kwirira

CHIVIZHE, B.T.:

The appeal is noted against the determination handed down on 24 March, 2011 by Respondent’s Disciplinary Committee which found the Appellant guilty of reselling tickets and consequently imposed a dismissal penalty.

The Appellant was employed by the Respondent as a conductor.  The Respondent’s case was that on the 5th of December 2010 a Risk Controller, Mr Mutizwa upon checking tickets found 4 passengers with resold tickets in a bus Appellant was operating as Conductor.  The Appellant was suspended verbally on the same day 5th of December, 2010.  He was then notified on 24th March, 2011 of the date of Disciplinary Hearing, which was the same day i.e. 24th March, 2011.  At the hearing the Respondent leveled the charge of reselling tickets.  He was found guilty and consequently a penalty of dismissal was imposed.  Aggrieved by this decision the Appellant lodged the present appeal with the court.

The Appellant filed a three page winded document to cover the facts, grounds of appeal and prayer.  The court is inclined to condone this considering the Appellant is represented by a Trade Unionist.

The issues raised in this appeal can however, from the papers, be summarized to be the following;

That the Respondent breached its own code by unlawfully suspending the Appellant for a period in excess of 14 days.

That the Respondent breached its own code by giving the Appellant in adequate notification for the hearing.

The Respondent unlawfully convicted the Appellant on a charge that was different to the grounds of suspension.

The Respondent in violation of its code denied the Appellant an opportunity to call for witnesses in support of his case.

The Respondent unlawfully found the Appellant guilty of the charge of reselling tickets where there was no evidence to prove the charge.

The Appellant has raised both procedural and substantive issues.  I shall address the procedural issues initially.

The first issue is that of suspension.  It has been contended by the Appellant that the Respondent having placed him on suspension on the 5th of December, 2010 failed to conduct and conclude the matter within 14 working days as required under the Code.  It has further been contended by the Appellant that he was as a result prejudiced as he was on suspension without salary and benefits.  The Appellant submitted that suspension was consequently a nullity and he ought to be reinstated without loss of salary and benefits.

The Respondent’s position is although admittedly it did breach the Code it is of the view that the Appellant did not suffer any prejudice by the delay in hearing of the disciplinary matter outside the 14 day prescribed period in the Code.

The Code of Conduct provides clearly in Part I; Part A; paragraph 3.  “The Need for Prompt Action” that disciplinary action once commenced should be concluded within 14 days except in exceptional cases.  The Respondent has not raised any exception.  No sufficient reason has been tendered for the delay which amounted to four months.  It follows that the Respondent did indeed breach its own code.  The delay between suspension and the notification of hearing rendered the suspension unlawful and inoperative.  It is a complete nullity and according to case precedent the Appellant ought to be reinstated immediately without any loss of salary and benefits.  See Mugwebi vs Seed-Co Limited and Another 2000 (1) ZLR 93 (5).  The Respondent can always exercise the option after reinstatement to re-suspend and conduct fresh hearing.

That should really be the end of the matter but I need to also address the other procedural irregularities raised in this appeal which in my view are also valid.  The Appellant has also raised the fact that he was notified on the disciplinary hearing on the 24th of March, 2011 the same day the hearing was to be conducted.  The Respondent explanation is that the Appellant should have requested for time to prepare his defence if he felt he needed more time.  The fact that he had agreed to proceed with hearing he waived his rights.  That explanation is totally unacceptable.  The Respondent was clearly in violation of the Code under Procedures In The Administration of Disciplinary paragraph 5.5 (ii) Investigations of Offences.  It provides that the employee shall be formally charged in writing providing details of charge at the date, venue and time of the disciplinary hearing.  The notice period for the hearing should be at least 2 days before the hearing date.

Codes of Conduct are meant to be complied with.  The principle is established where an employer fails to comply with the provisions of the Code of Conduct the deviation from the provisions of the Code constitutes a procedural irregularity which renders the proceedings voidable at the instance of the employee.  See Madoda vs Tanganda Tea Company Limited 199 (1) ZLR 374 (S)

The Appellant has also alleged that the Disciplinary Committee returned a conviction on a different charge to the original charge leveled against him on suspension.  The Respondent’s counsel explained that initially the Respondent had leveled the charge of ‘failure to carry out satisfactory work’ but after the disciplinary hearing the Disciplinary Committee upon consideration of the facts returned a verdict on the on the more appropriate charge of ‘reselling ticket’s.  The principle is established that it is incompetent for an employer to order termination of employment on a ground that was relied on or arose after the date of suspension and is different from the original ground of suspension.  See Standard Chartered Bank vs Matsika 1996 (I) ZLR 123 (S) and Brake and Clutch vs Nyama.  In the latter decision the Supreme Court nullified dismissal and ordered reinstatement.

The court having found the Respondent committed not one but several fatal procedural irregularities it follows that the disciplinary proceedings ought to be set aside and the Appellant reinstated into employment.  Having come to that decision it will not be necessary for me to consider the other ground of appeal which is based on the merits.

It is accordingly ordered as follows;

That the Appellant’s dismissal be and is hereby set aside.

The Respondent is directed to reinstate the appellant without any loss of salary and benefits with effect from the date of suspension.

In the event that reinstatement is no longer an option the Respondent shall pay Appellant damages in lieu of reinstatement the quantum of which shall be agreed upon by the parties, failure of which either party can approach the Labour Court for quantification.

The Respondent may at its discretion re suspend the Appellant upon reinstatement.

There is no order as to costs.