Tendai Patricia Zambe v Grain Marketing Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/54/13
HELD AT HARARE 22ND FEBRUARY 2013
CASE NO
JUDGMENT NO LC/H/54/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/54/13

HELD AT HARARE 22ND FEBRUARY 2013		CASE NO LC/REV/H/10/12

TENDAI PATRICIA ZAMBE				Applicant

GRAIN MARKETING BOARD				Respondent

Before The Honourable G Musariri, President

For Applicant		Ms T.P. Zambe, Applicant

For Respondent		Mr P Makuwaza, Attorney

MUSARIRI, G:

On 25th January 2012, Applicant filed an application for review by this Court.  Her founding affidavit, as amplied by her submissions show, the following facts:

1.

She worked for Respondent as a Handling Supervisor based at Norton.

2.

On 26TH January 2010 she was suspended without pay.

3.

On 27th January 2010 she was charged with misconduct.

4.

On 4th and 11th February 2010 a disciplinary hearing was held.

5.

On 22nd February 2010 she was informed of the outcome of the hearing through a letter of dismissal.

6.

On 1st March 2010 she appealed against her dismissal.

7.

On 11th March 2010 Respondent’s General Manager dismissed the appeal.

In due course Applicant filed the present application for review.

I will deal with her grounds for review seriatim

Failure by the Chairman of the Disciplinary Committee to inquire on

whether I understood the charge against me:

Indeed the minutes of the disciplinary hearing do not show a specific inquiry as to whether Applicant understood the charge.  However after complainant laid out the charges, Applicant’s response was recorded thus,

“Mrs Zambe’s response

I deny all the charges.”

Such a response suggests that she understood the charges.  She went on to give her narration of the events in question.  This gives the picture of an employee who understood the charge, gave her detailed defence and thus needed no explanation of the charges.

Bias:

Applicant stated that her superior, Mr Sakutukwa, told her that she had been dismissed before the hearing.  Sakutukwa replaced the initial complainant at the hearing.  Thus he was not part of the decission-makers at the hearing.  His role was to present and prove the charges.  Whatever bias Sakutukwa had was immaterial because he did not determine the matter.  Bias on the part of the decision-maker/s is what will taint proceedings.  Applicant also speculated about a deadlock within the disciplinary committee over the verdict.  Such speculation remained specious seeing as it was not supported by minutes of the hearing.

Failure by the disciplinary committee to advise me of my right to a Legal Practitioner:

The record shows that Respondent informed Applicant of her right to choose “one person of your own choice to represent you…”  Applicant’s complaint was that she was not informed that the representative could be an attorney.  Respondent’s Code of Conduct permitted representation by, amongst others,  an attorney.  However it was not the duty of Respondent to explain this detail to Applicant.  The Code is an agreement reached by members of Respondent’s Works Council.  Indeed the copy filed of record bears signatures of these members. They comprise employer and employee representatives.  It is the latter who had a duty to inform their  constituency, including Applicant, of the meaning and implication of the terms of the Code.

Denial of opportunity to call witnesses:

Applicant complained that she was denied the opportunity to call Ms Susan Mudavanhu and her farm manager Mapiye to give evidence on her behalf.  Firstly the minutes do not show that she asked to call any witness.  Neither does it show that such request was denied.  In any event the evidence sought from the witnesses was largely immaterial.  It did not go to the heart of the matter which was the unauthorised release of merchandise to a person not on the distribution list and whose payment had not been verified.

Complainant’s witnesses gave evidence whilst I was outside the hearing:

Applicant alleged that witnesses gave evidence in her absence.  She was only called in to cross examine the witnesses.  Again the allegation is not supported by the minutes.  In any event she was at liberty to ask the witnesses to say or summarise what they had said in her absence.

Respondent refused to give me minutes of the disciplinary hearing:

Applicant stated that the disciplinary committee refused to give her minutes of the hearing.  She further stated that she only got a copy from this Court’s record.  Irregular though the refusal might be, it per se cannot nullify the entire proceedings.

Denied the opportunity to mitigate:

Applicant claimed that she was denied the opportunity to mitigate prior to the imposition of the penalty of dismissal.  On the other hand, the minutes show the following sequence,

“  .  Uphold the charge.

Mitigation

Mrs Zambe

.  I over looked the fact that I loaded a truck during the night.

.  When I noticed that I had given F Mashonganyika fertilizer, 1 quickly made investigations to find out if the cheque was genuine.”

This shows that Applicant was given the opportunity to mitigate.  Indeed she made submissions in mitigation.  Unluckily for her, the disciplinary committee was unmoved by her mitigation.  In the circumstances I find that none of the irregularities raised, singly or cumulatively warrant interference with the proceedings.  I am persuaded by Respondent’s prayer for dismissal of the application “for lack of merit.”

Wherefore it is ordered that,

The application is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT