Telone V Christine Chafanza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/35/2020
HARARE, 28 NOVEMBER 2019
CASE NO. LC/H/35/2020
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/35/2020

HARARE, 28 NOVEMBER 2019		                  	    CASE NO. LC/H/76/19

AND 31 JANUARY 2020

In the matter between:-

TELONE							Appellant

And

CHRISTINE CHAFANZA					Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr A.K. Maguchu (Legal Practitioner)

For Respondent		Mr B Julajulah (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the decision of the National Hearing Committee of the NEC that was handed down on the 18th of March 2019. In its decision the National Hearing Committee

found that the Disciplinary Hearing Committee was improperly constituted.

ordered that the matter be remitted to Tel-One for a denovo hearing in terms of the Code of Ethics and Conduct.

ordered that the Respondent be reinstated without loss of salary and benefits.

The brief facts of the matter are that,

The Respondent was charged with (3) three counts of misconduct.

On the 19th of October 2018 she appeared before the Disciplinary Committee and the matter was postponed to 30 October 2018.

On 30th of October 2018 the Workers Representative did not attend the hearing and the matter was postponed to the 6th of November 2018.

On the 6th November 2018 the Workers Representative and the Respondent did not attend the Disciplinary hearing.

The Respondent was then convicted in absentia and dismissed from employment.

Aggrieved by the decision the Respondent then appealed to the National Hearing Committee.

The Appellant has appealed against the decision of the National Hearing Committee.

The grounds of appeal before this court are as follows,

The National Employment Council Hearing Committee erred at law in finding that either the Disciplinary Committee was not properly constituted and/or that such improper Constitution constituted a fatal irregularity.

The National Employment Council Hearing Committee erred at law in assuming jurisdiction over an appeal by the Respondent who having failed to appear for the hearing had no right to lodge such an appeal.

The National Employment Council Hearing Committee erred at law in disposing of the matter without determining Respondent’s guilty or otherwise.

The National Employment Council Hearing Committee also erred at law in ordering the reinstatement of the Respondent without loss of salary and benefits in the absence of a finding that Respondent was innocent.

In response the Respondent argued that,

The Disciplinary Hearing Committee was not properly constituted as provided by the Tel-One Code of Ethics and thus the finding of the Disciplinary Committee cannot be faulted.

In terms of Section 2.2.2.3 (g) of the Tel-One  Code of Ethics the Respondent had the right to appeal to the National Employment within (3) Three days of the notification of the decision of the Disciplinary Hearing Committee.

It was logical for the National Employment Council to reinstate the Respondent because the hearing by the Disciplinary Hearing Committee was tainted with procedural irregularities.

The decision by the NEC was unanimous and Appellant’s representatives constituted the NEC.

Respondent therefore prayed for the dismissal of the appeal.

It is common cause that the decision by the Disciplinary Committee was made in absentia. Respondent and her representatives were absent. The decision by the NEC amounts to a default judgment. It is a trite principle of law that a litigant cannot appeal against a default judgment. This court agrees with the Appellant’s submission that appropriate recourse for the Respondent was to apply for rescission of the default judgment.

By approaching the National Hearing Committee the Respondent she approached the wrong forum.

To that end therefore the finding by the NEC is a nullity.

It is therefore ordered that,

The appeal be and is hereby allowed.

Respondent shall bear costs.

Dube, Manikai & Hwacha, appellant’s legal practitioners

Julajulah Law Chambers, respondent’s legal practitioners