Tichahleyi Mpofu v Zimbabwe Manpower Development Fund & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/181/23
HARARE, 22 MARCH 2022
CASE NO. LC/H/469/21
AND 30 JUNE, 2023
TICHAHLEYI MPOFU
Applicant
vs
---------


==============================

IN THE LABOUR CO URT OF ZIMBABWE
HARARE, 22 MARCH 2022
AND 30 JUNE, 2023

TICHAHLEYI MPOFU
vs
ZIMBABWE MANPOWER DEVELOPMENT FUND
EDIAS EDSON HOMERA N. O

Applicant
1st Respondent
2nd Respondent

Before the Honourable Chivizhe, Judge;

For Applicant:
For 1st Respondent:
For 2nd Respondent:

Mr T. Chagudumba (Legal
Practitioner) Mr M. Moyo (Legal
Practitioner) No appearance

CHIVIZHE, J:

The application was placed before me as an application for review made in pursuance of Section 92EE of the Labour Act [Cap 28:01]. The application was opposed by the 1st Respondent, the former employer of the applicant. The 2nd Respondent having been cited in his official capacity as the Disciplinary Authority responsible for conducting the disciplinary hearing convened by the 1st Respondent did not respond to the application.

Background

The material background facts to the matter are as follows;

The Applicant is a former employee of the 1st Respondent. He was employed in the capacity of ICT Manager in April 2012. On the 5th of July 2021 the 1st Respondent served him with a suspension letter and a charge sheet. The 1st Respondent levelled a charge of breach of section 4(a) of the Labour (National Employment Code of Conduct) Regulations 2006 (Statutory Instrument 15 of 2006) i.e. (a) any act or conduct or omission inconsistent with the fulfilment of the express or implied conditions of (your) contract. The allegations levelled were that;
 (i) He was suspected to have acted or made comments to a Tender No. ZPC 02/2021 known very well that such comment/query did not fall part of his employment contract which only allowed him to make comments/queries and or develop matters of a technical nature.

(ii) Secondly, as a result of the above, after his query had been turned down by the Chief Executive Officer, he was suspected to have communicated the disputed position to the print media as reported by Opera News Official of 17th May 2021.

The Applicant was arraigned for a disciplinary hearing on 14 July 2021. On the date Applicant being legally represented at the time tendered a plea of not guilty. He presented a defence outline to the charge. In his defence he raised a point in *limine* that the charge as levelled was vague and embarrassing to the extent that he was unable to respond to it. He also further alluded to the fact that in so far as the charge related to a tender that was non-existent at the time the charge was also unsustainable. On the merits of the matter Applicant submitted that it was within his mandate to provide input on any aspect of ICT products and services, technical and non-technical. There was therefore nothing improper in his request for confirmation on a charge in a tender document for ICT services. His contract did not restrict him at all as suggested by 1st Respondent. There was in any event evidence on all the tender specification he had prepared and sent to procurement over the years to support his position. The Applicant also alleged that contrary to the evidence of Procurement Manager he had only sought confirmation as to the charge and did not challenge the inclusion of the tender document. He also did not seek any changes to the document as evidenced by his email to the Procurement Manager. The Applicant denied any communication with the print media on the subject the article having been published two months after the tender document had been already finalised and made public. It was Applicant’s position that there was no evidence to demonstrate that it was him who had gone to the press. The information could have been leaked by anyone, including, members of the public as the tender document had been made public, any aggrieved bidders by the requirement in the tender document, anyone of the staff members including procurement staff.

The Respondent led evidence in the form of two witnesses, its Chief Executive Officer and the Procurement Manager. The Applicant was granted an opportunity to cross-examine the witnesses. At the end of employer case Applicant made an application for absolution from the instance which application was opposed by the 1st Respondent. The application was dismissed by the Disciplinary Authority.


The Applicant presented evidence in rebuttal. He was subjected to cross examination. The Disciplinary Authority after considering the submissions by both parties and the evidence led handed down a judgment on $15^{\text{th}}$ of September 2021, finding Applicant guilty of the charges as levelled. A determination to dismiss him from employment was then issued on $23^{\text{rd}}$ September 2021.

**Grounds for review**

1. The $2^{\text{nd}}$ Respondent had interest in the cause and was biased in that:
   (a) the $1^{\text{st}}$ Respondent is his client and he had prepared an opinion advising the $1^{\text{st}}$ Respondent to bring the disciplinary proceedings against the Applicant, which proceedings he presided over and refused to recuse himself.
   (b) he was assisting the employer in making its case and disregarded any submissions/objections by the Applicant as employee.

2. The gross irregularity in the proceedings in that:
   (a) despite the disciplinary authority being composed of two people, the $2^{\text{nd}}$ respondent excluded the other panel member and made decisions single-handedly.
   (b) the $2^{\text{nd}}$ Respondent relied on documentary evidence, in particular a contract of employment, that was not tendered and was not before him.

3. The gross irregularity in the decision of the adjudicating authority in that:
   (a) once there was an acceptance that there was an error on the charge and no application for amendment was made, the charge had to fall away.
   (b) the decision was arrived at without $2^{\text{nd}}$ Respondent considering the submissions made by the parties. The decision betrays a total disregard of the principles applicable to the judgement making process.

**A. Alleged interest in the cause and bias**

The Applicant contends under this ground that the $2^{\text{nd}}$ Respondent was automatically disqualified from seeking to determine the matter in view of his direct relationship with the $1^{\text{st}}$ Respondent. The $1^{\text{st}}$ Respondent was said to be a client of the $2^{\text{nd}}$ Respondent’s law firm. $2^{\text{nd}}$ Respondent thus had financial interest in the cause as he would be paid for the service he was rendering. The Applicant further contends that the $2^{\text{nd}}$ Respondent also prepared the opinion which culminated in the disciplinary proceedings convened against him. In that opinion $2^{\text{nd}}$
 Respondent had expressed his definitive opinion on the outcome of the matter. The Applicant further submits that $2^{\text{nd}}$ Respondent’s bias was also evident from the judgment he eventually handed down which amounts to a regurgitation of his original opinion to the $1^{\text{st}}$ Respondent. It is also apparent that it was $2^{\text{nd}}$ Respondent who drafted the suspension letter as well as the disciplinary charge.

The Applicant further contends that $2^{\text{nd}}$ Respondent actions during the disciplinary hearing also pointed to bias. He has referred the court to the appropriate pages in the record. $2^{\text{nd}}$ Respondent’s partiality was evidenced by the attitude he adopted when he refused to recuse himself when so requested by the Applicant. $2^{\text{nd}}$ Respondent had also in his possession the Applicant’s contract which was never tendered in the hearing but which he had attached to his determination. The Applicant submits that on the basis of all the above he formulated a reasonable apprehension of bias on the part of the $2^{\text{nd}}$ Respondent. The ground of review ought therefore to succeed and the proceedings set aside.

The $1^{\text{st}}$ Respondent in its opposition papers submitted that the ground of review had no merit. The relationship between it and $2^{\text{nd}}$ Respondent did not prejudice in any way the Applicant. $1^{\text{st}}$ Respondent was at liberty to elect who would preside over the disciplinary hearing it did choose $2^{\text{nd}}$ Respondent to hear and determine the matter. The fact that $2^{\text{nd}}$ Respondent had prepared the opinion did not derogate from the fact that as a Disciplinary Authority $2^{\text{nd}}$ Respondent had conducted an inquiry into allegations of misconduct as raised against the Applicant. The important thing is that Applicant was granted a fair hearing. $1^{\text{st}}$ Respondent emphasised the fact that Applicant was given an opportunity to present his case and was granted all his other procedural rights. The $1^{\text{st}}$ Respondent denies that $2^{\text{nd}}$ Respondent had an interest in the matter and was biased.

Both parties filed extensive heads on this point. The parties also made oral submissions that were largely based on the same lines as their heads of arguments. Based on the submissions made by the parties and a perusal of the voluminous record it is the court’s finding that the ground of review is clearly merited.

With relation to the interest in the cause the Applicant succeeded in establishing the direct relationship that existed between the $1^{\text{st}}$ and $2^{\text{nd}}$ Respondent. It was not contested by $1^{\text{st}}$ Respondent that $2^{\text{nd}}$ Respondent’s firm routinely obtains work from $1^{\text{st}}$ Respondent. It was also not disputed that $1^{\text{st}}$ Respondent had also prepared an opinion which had culminated in the institution of disciplinary proceedings against Applicant. In the opinion $2^{\text{nd}}$ Respondent had stated why he believed Applicant had to be disciplined as follows:

“CONCLUSION
 15. In conclusion and have gone through the respective reports provided, the circumstantial evidence against Mr Mpofu is so overwhelming and further strengthened by him acting ultra virus the scope of his employment contract. A reasonable inference may be drawn that he leaked the information for some personal benefit.

16. ZIMDEF must therefore proceed as provided by section of the (National Employment Code of Conduct) Regulations 2006, SI 15 of 2006 and a disciplinary hearing held to ascertain all facts that are already before us.

The Applicant has ventured to submit that the 2nd Respondent, apart from giving a damning opinion, is also the person who was behind the crafting of the suspension letter as well as the charge sheet. The Respondent however disputed the submissions as being unsubstantiated. The court agrees and shall not make any finding based on this point.

The court’s finding is that in view of the 2nd Respondent financial interest in the case, and also the extensive role he played in the investigation of the matter which resulted in him penning an opinion in which he recommended disciplinary proceeding against Applicant he was clearly disqualified to conduct the disciplinary hearing. As can be seen from the opinion he had formulated a strong view that Applicant was guilty such that he would seek to defend that position taken This point however, as submitted by the 1st Respondent is no longer relevant as the disciplinary proceedings did proceed with him sitting as part of the Disciplinary Authority. The 1st Respondent contends that the only issue at stake now is whether the 2nd Respondent was biased in the conduct of the disciplinary proceedings and the ultimate decision handed down in the proceedings. The court agrees entirely. This indeed is the approach as adopted in Mupandasekwa vs Green aptly referred to by Respondent where GWAUNZA JA (as she then was) stated as follows;

“I find little to fault the Judges reasoning. The question of likelihood of bias, can only logically be raised before or perhaps, during the proceedings in question. In such cases an affected party would normally be expected to request that the person suspected of such bias recuse him or herself from participation in the proceedings in question. There is no record that in casu such a request was made by the Applicant in respect of the Chairperson of the disciplinary proceedings. Consequently proceedings continued to finality. The Applicant could, only after trial, have relied on demonstrated bias to request that the proceedings be set aside.”

The Applicant in this case requested for 2nd Respondent to recuse himself but the application was turned down. The proceedings having proceeded to finality the Applicant can only at this stage rely on demonstrated bias.


The Applicant has in his papers submitted that $2^{nd}$ Respondent conduct during and after the disciplinary proceeding pointed to actual bias on his part. The Applicant has pointed to various instances in the record including the fact that the $2^{nd}$ Respondent curtly dismissed his application for recusal; that he appeared to be taking employer’s side at every opportunity, was essentially assisting the employer; that he was provided with evidence and documents prior to the hearing in circumstances where he had not being granted an opportunity to peruse and comment upon, $2^{nd}$ Respondent had confirmed possession of documents in the absolution from instance ruling; $1^{st}$ Respondent had also confirmed providing documents in particular contract of employment to $2^{nd}$ Respondent, $2^{nd}$ Respondent purported to attach the copy the contract of employment to his determination in circumstances where Applicant had not been given an opportunity to comment upon; $2^{nd}$ Respondent had also been given Applicant’s defence outline by $1^{st}$ Respondent before the hearing; $2^{nd}$ Respondent had preconceived ideas as shown by his judgment which replicated his opinion given to $1^{st}$ Respondent; finally, he had proceeded to draw up a judgment in the matter without inviting his fellow panel member to participate in the decisions.

The first Respondent’s position in counter is that on the basis of the authority in Mupandasekwa vs Green Motor Services which is referred to supra actual bias has to be proved. The Supreme Court in that case had stated as follows;

> “It is not denied by the respondent that the chairperson concerned was part of the team mandated to investigate the multiple charges levelled against the appellant. Nor is it disputed that she caused a notice to be published in a newspaper before the hearing, informing the public that the appellant was no longer employed by the respondent. The respondent however argues that, this notwithstanding, the appellant had failed to demonstrate actual bias on the part of the chairperson of the disciplinary hearing. In any case, the respondent further argues, any possible irregularity in this respect was cured by the arbitrator’s award of payment of salary and benefits to the appellant.

The Labour Court, in dismissing the appellant’s appeal, in effect upheld the arbitrator’s decision on this point. The court addressed the question of whether or not, apart from the irregularity occasioned by the chairperson’s role in chairing the proceedings, the appellant had demonstrated actual bias against him, or her part. The Judge expressed the view that the adjudicator is required to execute his duties impartially, and a ‘showing’ of bias is required to nullify proceedings already concluded. The court found that the appellant had failed to show any bias or prejudice. It held as follows in its judgment:

> “Appellant queried why the arbitrator did no use that finding (of bias) to nullify the proceedings. In my view the question is considered differently before and after a hearing. The adverts complained of may be taken to show bias. Indeed I would, on that basis, have interdicted the official from hearing the matter. However, after a hearing has already been conducted the situation is different
 ... A showing of bias is required to nullify proceedings already concluded. It is not enough to show a possibility of bias as is the case prior to the hearing. In casu appellant failed to show bias or prejudice arising from such bias”

I find little to fault in the Judge’s reasoning. The question of likelihood of bias can only, logically, be raised before or perhaps during the proceedings in question ….”

The 1st Respondent further contends that the Applicant in this case was in any event accorded a fair hearing. Once a fair hearing is established the issue of bias cannot arise. This position was also according to the Mupandasekwa judgment referred to supra and Musarira vs Anglo American Corporation SC 53/105.

The 1st Respondent submits that applicant was accorded a fair hearing as evidenced by the following; he was afforded adequate notice of the disciplinary hearing; he was also afforded an opportunity to present his defence and he did submit; he raised preliminary issues which 2nd Respondent had dismissed with adequate reasons given for the decision; Applicant was granted an opportunity to apply for absolution from the instance although the application was dismissed by 2nd Respondent and reasons were tendered; 2nd Respondent during the course of hearing would also interject in favour of Applicant, (examples cited); the Applicant was accorded an opportunity to present his evidence in chief; both parties were invited to file written submissions based on which 2nd Respondent had then made his judgment. 1st Respondent also contends that Applicant has failed to establish the crucial issue as to whether he was prejudiced.

The court’s findings is that there were indeed instances in the hearing where bias was exhibited. This was clear when the 2nd respondent curtly dismissed the application for recusal. In so doing he gave no due regard to the reasons proferred by applicant. He also did not seek the complainant’s attitude to the application. He also made that ruling in the absence of the input of the other panel member. There is also evidence in the record that he had received evidence and documents prior to the hearing. This he did confirm himself in his ruling on the absolution from the instance application on page 79. He also had the contract of employment which was never tendered in the hearing. He proceeded to attach it to the judgement. It is also not disputed that he proceeded to hear the matter in the absence of the fellow panel member he also handed down a judgment without the input of the other panel member that judgment also clearly replicated his opinion rendered at the commencement of proceedings.

B. Gross irregularity in the proceedings – improper composition of disciplinary authority
 The Applicant has also raised the issue of gross irregularities in the disciplinary proceedings convened by the 1st Respondent. He has raised as a first issue, under this head, the fact that despite the Disciplinary Authority being comprised of two people i.e. the 2nd Respondent and another panel member, Engineer Siyaketshana the 2nd Respondent had proceeded to make decisions single-handedly to the exclusion of the other panel member. The Applicant has referred the court to pages in the record, where Engineer Siyaketshana was appointed as the second panel member. The Applicant has also drawn the court attention to the fact that the interlocutory rulings/decisions made in the disciplinary hearing were made by 2nd Respondent exclusively. This was said to be clear as they were written in the 1st Person language.

The Applicant has also raised the fact that the second panel member was also not present during the presentation of his defence case. The Applicant submits that 2nd Respondent had on that occasion ventured to proceed on his own. Upon being requested by Applicant’s counsel 2nd Respondent just responded with words to the following effect “he is not here let’s proceed”. Applicant contends that the actual reason why the second panel member was not present was that he no longer wanted to be associated with the sham of a hearing. This much was clear from the questions the second panel member had been asking prior to his departure from the panel. (Specific pages 157, 158 and 160, 161).

The 1st Respondent in response concedes that Engineer Misheck Siyaketshana participated in the proceedings only during the 1st Respondent’s case but not during the Applicant’s case. The 1st Respondent however contends that this is not sufficient to vitiate the proceedings because 2nd Respondent had advised parties from the onset that he was the Chairperson of the Disciplinary Authority appointed to hear and determine the matter. This was clear from page 137 of the record. The 1st Respondent further contends that 2nd Respondent at all times remained competent to hear and determine the matter without the involvement of Engineer Siyaketshena. In respect to the incident of the absence of Engineer Siyaketshena 1st Respondent position is the 2nd Respondent had not objected to the matter proceeding in the absence of Engineer Siyakatshena. He could not be heard to be raising the complaint at this stage.

It is very apparent that a gross irregularity occurred in the disciplinary proceedings in regards the composition of the Disciplinary Committee. Contrary to the submissions by Respondent the Disciplinary Authority in this case was composed of two members. This is apparent from a reading of the record on page 1140. There was a debate between the Applicant’s counsel and the 2nd Respondent as to what was the composition of the Disciplinary
 Authority. $2^{nd}$ Respondent’s response was that the Disciplinary Authority was established as per the definition under **Statutory Instrument 15 of 2006** i.e. that it could be composed of more than one person. He categorically stated that in this case the disciplinary authority is composed of himself and Engineer Siyakatshena. The record also clearly shows, contrary to $1^{st}$ Respondent’s submission before this court, the Applicant’s counsel on $2^{nd}$ August, 2021 had raised the issue of the non-attendance by the second panel member Engineer Misheck Siyakatshena. $2^{nd}$ Respondent responded with words as follows “He will not be joining us today he has given an apology”.

The issue that arises is whether the irregularity is sufficient to vitiate the disciplinary proceedings. In my finding the irregularity is sufficient to vitiate the proceedings. It is clear that the Respondent having opted to convene a Disciplinary Authority whose composition was made up of two members that Disciplinary Authority had to proceed as a panel up to the conclusion of the disciplinary hearing i.e. at determination stage and penalty stage. See in this respect **Happison Muchechetere** vs. **ZBC SC 143/21** where GWAUNZA J. stated as follows;

“42. The court finds there is merit in the appellant’s submissions as outlined above. While it is inelegantly formulated, the import of the disciplinary procedure laid out in s 6 of S.I. 15/2006 is that disciplinary proceedings against an employee facing misconduct charges are conducted by the employer, or a disciplinary authority appointed by it. The tone of s 6(4)(b) makes it clear that where a disciplinary authority is appointed, it is expected to conduct the hearing as set out therein, including hearing submissions in mitigation, as well as determining and imposing the ‘ultimate’ penalty. The hearing in other words is only completed after the ‘ultimate’ penalty is imposed”.

It is also important that both members of the Disciplinary Authority had to be seen to be playing the same role. It is accepted that in disciplinary proceedings certain liberties can be taken in conducting hearing. As stated in **Unifreight Ltd** vs **Madembo SC 6 of 2018** such flexibility must however not operate against the rights of an employee to a fair and procedurally just hearing. The facts in this case clearly show only one member of the panel making all the rulings on interlocutory matters and even conducting part of the hearing on his own. The determination he ultimately produced was also his own it did not involve the second panel member. Even if the Applicant can be said to have been accorded all his other rights this fact alone clearly operated against him as $2^{nd}$ Respondent made all critical decisions without the input of the other panel member. Against the background facts of the matter to which the court has already alluded to above that $2^{nd}$ Respondent was also coincidentally the one who had investigated matter and handed an opinion which resulted in the levelling of charges this irregularity was highly prejudicial to Applicant’s case.


C. Gross irregularity – production of documentary evidence

The Applicant under this ground contends that the $2^{\text{nd}}$ Respondent grossly erred in relying on evidence that was not tendered before him. During the actual disciplinary proceedings, the complainant had not tendered any documents in support of the employer’s case. The complainant had not even produced the suspension letter, charge-sheet and all the annexures in the course of her evidence. The Applicant further raised the point that in view of the Disciplinary Authority being composed of external people the only evidence they ought to have been privy to was evidence tendered in the hearing itself. The facts however showed $2^{\text{nd}}$ Respondent had proceeded to, attach a contract of employment to his determination. The contract of employment had not however been produced in the course of hearing. It was not apparent how $2^{\text{nd}}$ Respondent had obtained the contract. The Applicant further submits that the issue of the contents of this contract of employment had been hotly debated in the course of the hearing. It was also imperative for the complainant in any event produced the contract in view of the charge having been centred on breach of express or implied conditions of contract. The Applicant submits that it was therefore improper for $2^{\text{nd}}$ Respondent to have sought to smuggle the contract into his judgment when such contract had not been placed before him in the hearing.

The $1^{\text{st}}$ Respondent in response has dismissed the complaint as baseless. $1^{\text{st}}$ Respondent contends that in the absence of proof that Applicant was prejudiced by the manner documents were placed before the $2^{\text{nd}}$ Respondent that point should simply be dismissed. The $1^{\text{st}}$ Respondent’s counsel also submitted that the rules of discovery are applied differently in labour matters. $1^{\text{st}}$ Respondent referred the court to Watyoka vs ZUPCO decision where the court approach in labour tribunals court is different from courts of law. $1^{\text{st}}$ Respondent again alleged that in the absence of prejudice being established by the Applicant the point ought to be dismissed. On the issue of the contract, it was submitted that although it was not tendered during the hearing it was a document that was before the tribunal as a common cause document. Reference was made to Alpha Madzima v Marange Resources SC 12 of 18. There was therefore nothing irregular in $2^{\text{nd}}$ Respondent referring to the document in his determination.

It is a trite position at law that disciplinary proceedings are not bound by rules of evidence that are ordinarily applicable in courts of law. The presiding officer may ascertain any relevant facts by any means which he thinks fit but which is not fair or unjust to either party. He has to avoid formality in the proceedings and may depart from any enactment or rule of law relating to admissibility of evidence and proceedings before ordinary courts of law. The $2^{\text{nd}}$ respondent in his ruling on the application for absolution from instance correctly referred to Rule 12 of the
 Labour Court Rules 2017 as the source of this position. It is clear on the basis of the facts of this matter that the $2^{\text{nd}}$ respondent indeed received documentary evidence outside the confines of the hearing. He did receive the contract of employment and attached it to his judgment. This position is not contested by the $1^{\text{st}}$ respondent save to state that $1^{\text{st}}$ respondent contends this was not prejudicial to the applicant. Contrary to the 1st respondent position this procedure adopted was manifestly unfair to the applicant. The charge that was laid against the applicant was based on implied/express terms of the contract of employment that document would have been properly tendered in the hearing by the complainant. It is also apparent from the record that there was a dispute as to what where applicant’s duties under that contract where, whether those duties included inputting on any aspect of ICT products and services. The applicant should have been granted an opportunity to comment on the contract of employment. That this was not done was manifestly unfair to the applicant.

D. Gross irregularity in the decision

The Applicant contends in his last ground that the determination handed down by the $2^{\text{nd}}$ Respondent was also grossly irrational. Applicant’s complaint is that there was a disparity between the charge sheet and the suspension letter; that both documents were also not formerly produced through the complainant during the hearing; that it was apparent during the hearing that the charge was not correct a point which $2^{\text{nd}}$ Respondent himself conceded to in his determination; that the charge was not amended by way of an application by the complainant instead the $2^{\text{nd}}$ Respondent in his determination sought to improperly amend the charge on behalf of the $1^{\text{st}}$ Respondent; that the parties had in the course of hearing argued on certain issues which issues however were not captured in the determination; the $2^{\text{nd}}$ Respondent had however in his determination made determination on issues not raised between the parties.

In regards the conviction Applicant argues that it was improper for him to have been found guilty of a charge of commenting on a draft document which document was in any event approved by the Chief Executive Officer. He submits that he ought not to have been found guilty of the charge in the circumstances.

The $1^{\text{st}}$ Respondent in response submits that the Applicant’s complaint is strictly on formalities and secondly the Applicant was properly found guilty on the charge. The $2^{\text{nd}}$ Respondent in his determination had adequately dealt with the issue of the term ‘tender document’ as referred in the charge. He had found that the terms ‘Drafting Bidding Documents’ and ‘Tender Document’ were being used interchangeably even by the Applicant. On this basis the Applicant knew that what was actually being referred as tender document in the charge was a Draft Bidding Document. The $2^{\text{nd}}$ Respondent had also addressed the issue of the inadequacy of the charge in his determination. The $1^{st}$ Respondent also dismissed the complaint that there had been no formal production of documents such as charge shall suspension letter, etc. this was a formality that is not really sufficient to vitiate the disciplinary proceedings.

The $1^{st}$ Respondent also contends that the Applicant is essentially challenging the factual findings made by the $2^{nd}$ Respondent. He has however failed to meet the requirements for this court to interfere with the factual findings in respect of the merits made. Reference was made to **Fraser Munyaka** vs. **BAK Logistics (Pvt) Ltd** SC 39/12. The $1^{st}$ Respondent’s position is at the end of the day the Applicant was properly convicted of the charge, his submissions in mitigation were indeed considered but were found by the $2^{nd}$ Respondent to be overwhelmed by the aggravating circumstances. A penalty of dismissal was therefore properly imposed upon him. The $1^{st}$ Respondent’s prayer is for the dismissal of the application with costs.

Whilst it is indeed conceded that there is an element of institutional bias in the conduct of disciplinary proceedings there is still need for the disciplinary authority to conduct proceedings in a fairly transparent and fair manner. Evidence still needs to be presented in the hearing otherwise charges of bias will be raised. Whilst the documents such as the suspension letter charge sheet could have been made available prior to hearing. The contract given the nature of the charge and also the fact that there was a dispute as to what were the duties of the Applicant, whether he was allowed to input in any ICT product and services ought to have been produced via the complainant and applicant accorded the right to comment on it. This case is clearly different from Alpha Madzima vs Marange Resources referred to by the $1^{st}$ Respondent. In respect of the issue of the charge the $2^{nd}$ Respondent found as follows;

“(iii) **That the grounds for the charge were vague and embarrassing**

There was a concession that there seemed to be an error on the charge, with particularly respect to exactly which document was the employee being charged for making a comment or query between the Draft Binding document and the Tender Document, however, I took exception to the fact that a ground for exception in a pleading ay not discharge a matter to finality and the employer could make such corrections to reflect which document between the Tender Document and the Draft Binding document did the employee comment or make input to. The complainant indicated that he was going to call witnesses to testify as to which document exactly was commented on”.

It is clear that the second respondent accepted that there was an error on the charge despite this acceptance however there was no attempt to ensure the amendment of the charge. No further witnesses were called to attend to that issue. The $1^{st}$ Respondent suggests that the $2^{nd}$ Respondent found that it was a non-issue given that he found that the term Tender Document was being used interchangeably even by the Applicant. The $2^{nd}$ Respondent had an obligation to ensure that point was clarified by the $1^{st}$ Respondent it was not for him to reach the conclusion without having called for the evidence as he had indicated. That approach no matter how much one feels he is correct and justified as an adjudicator will almost always open accusations of bias and impropriety. He said he would call for evidence he did not This was a gross irregularity.

With regards to the issue that $2^{\text{nd}}$ Respondent did not consider mitigation and aggravation. The record on page 134 clearly shows that the $2^{\text{nd}}$ Respondent did consider submissions in mitigation and aggravation. After considering submissions $2^{\text{nd}}$ Respondent imposed a penalty of dismissal.

In conclusion however there were fatal irregularities in the disciplinary proceedings convened by the $1^{\text{st}}$ Respondent against the $2^{\text{nd}}$ Respondent emanating from the selection of $2^{\text{nd}}$ Respondent to sit to determine a matter where he had extensively been involved as an investigator resulting in him penning an opinion which then influenced the charge levelled by the employer, there was actual bias displayed by the $2^{\text{nd}}$ Respondent during and after the disciplinary proceedings, in the manner he handled the application for recusal and the interlocutory applications made in the proceeding. There were also gross irregularities in the matter proceeding with $2^{\text{nd}}$ Respondent only in the absence of the second panel member and in the judgement handed down exclusively by $2^{\text{nd}}$ Respondent without input from the second panel member. That these irregularities were prejudicial to Applicant is manifestly clear.

In the circumstances the disciplinary proceedings clearly stand to be set aside. The next issue the court ought to consider is the status of the Applicant. On the authority of the Supreme Court decision in **ZUPCO vs Mashinge SC21/21**, the applicant has to be reinstated to his original position without loss of salary and benefits. In view of the fact that, he had been placed on suspension with full salary and benefits on 5 July 2021, his status shall thereafter revert to one of being on suspension on the same terms pending disciplinary hearing.

In the result it is ordered as follows:

1. The application for review is granted with costs.
2. The disciplinary proceedings convened by the 1st respondent from 14 July to 2nd August 2021 and the determination handed down on the $23^{\text{rd}}$ of September be and are hereby set aside.
3. The applicant shall be reinstated to his original position without loss of salary and benefits.
4. His status, once he is reinstated shall revert to being on suspension (on the same terms) whilst awaiting disciplinary hearing.


Atherstone & Cook, applicant’s legal practitioners *Dube-Banda, Nzarayapenga & Partners*, 1st respondent’s legal practitioners
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