Tsitsi Murahwa v Willard Zidyambanje & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/ H/255/25
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 28th NOVEMBER, 2024 AND

24TH JULY, 2025

JUDGMENT NO. LC/ H/255/25

CASE NO. LC/H/367/23

TSITSI MURAHWA	APPLICANT

AND

WILLARD ZIDYAMBANJE NO.	1ST RESPONDENT TOBACCO INDUSTRY MARKETING BOARD	2ND RESPONDENT

Before the Honourable Chivizhe, Judge:

For Applicant	- Mr. T. L. Mapuranga (Legal Practitioner) For Respondent	- Miss. H. Madzongwe (Legal Practitioner)

CHIVIZHE, J:

The delay in the hand down of the judgement is sincerely regretted.

This is an application for review in terms of section 92EE (1) of the Labour Act [Chapter 28:01] as read with Rule 20 of the Labour Court Rules, 2017. The application is against the whole determination of the Second Respondent handed down on the 14th of April 2023.

BACKGROUND FACTS

The Applicant was, an employee of the Second Respondent, a company within which she held the position of Head of Human Capital and Administration. The First Respondent served as the chairperson of the Disciplinary Committee during the disciplinary proceedings against the Applicant and the Second Respondent is the employer company.

The Applicant was charged with 3 counts of misconduct under the TIMB Code of conduct, “An act of misconduct in terms of section 2.2.2 (s) of the Tobacco Industry

Marketing Board Employment Code of Conduct; that is to say, any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of her contract.”

On the first count, in December 2021, the Applicant was charged with serious misconduct for bypassing the company’s procurement processes by engaging EPZ Global for psychometric tests without approval. She conducted the tests before receiving the necessary authorization, violating company policies and exposing the organization to compliance risks. The Disciplinary Committee found her actions inconsistent with company policies and guilty of misconduct.

On the 2nd count, in October 2021, the Applicant was charged with misconduct for shortlisting Tendai Taurayi for an interview for the Human Capital Partner position, despite him not applying. This was a breach of the company’s Recruitment and Selection Policy. The Committee found the Applicant guilty of misconduct for failing to adhere to the recruitment procedures.

On the 3rd count, in October 2021, the Applicant was charged with misconduct for recruiting Dorcas Bhebhe for the Human Capital Partner position, despite her not meeting the job qualifications. The Applicant also failed to conduct the necessary reference checks. The Committee found the Applicant guilty of misconduct for not following recruitment policies and hiring an unqualified candidate.

On 15 February 2023, the Acting Chief Executive Officer of the Second Respondent, Mr. Emmanuel Matsvaire, issued a suspension letter to the Applicant. The suspension was followed by the initiation of disciplinary proceedings, with Mr. Matsvaire acting as the Complainant in the matter. The disciplinary hearing was conducted by a committee consisting of three members, Mr. Willard Zidyambanje, the Chief Finance Officer of the Second Respondent, Ms. Tariro Mukoko, the Company Secretary and Mr. Isaiah Hokonya, the Acting Inspectorate Manager.

The Applicant contends that the composition of the Disciplinary Committee was improper. Specifically, she asserts that both Mr. Zidyambanje and Ms. Mukoko were her peers or subordinates, as they reported to Mr. Matsvaire, while Mr. Hokonya was considered to be a subordinate of the Applicant at the time the committee was constituted. The Applicant argues that the involvement of these individuals, who were in various ways answerable to the Complainant, compromised the impartiality and fairness of the disciplinary process.

According to the Second Respondent's Code of Conduct, the Applicant maintains, the Disciplinary Committee should have been composed of senior members, preferably from the Board of Directors, to ensure impartiality, particularly given that the Acting Chief Executive

Officer was the Complainant in the matter. The Applicant further asserts that the Disciplinary Committee, as constituted, violated the principles of fairness and procedural justice, including the right to a fair trial and to be heard, as enshrined in Section 69(2) of the Constitution of Zimbabwe and Section 65(1) regarding fair labour practices.

The Applicant also raises concerns regarding the procedural legitimacy of the disciplinary proceedings, claiming that there was no Board resolution authorizing the initiation of the process. The Applicant submits that this absence of formal approval rendered the disciplinary process invalid. The disciplinary process began with a letter from Mr. Matsvaire dated 27 October 2022, which, according to the Applicant, was not supported by the required resolution from the Board of Directors.

Throughout the disciplinary process, the Applicant’s health became a key issue. The Applicant was unable to attend the hearing scheduled for 2 March 2023 and 20 March 2023 due to illness, supported by medical certificates and sick notes. On 22 March 2023, the Applicant was hospitalized and was unable to attend the hearing. The hearing was rescheduled to 29 March 2023, at 2:30 pm. The Applicant arrived at the agreed time, but was informed that the hearing had already proceeded in her absence. The Applicant asserts that her absence was not intentional but due to medical reasons, and she argues that no medical evidence was provided by the Respondents to indicate that she was fit to stand trial at the time the hearing proceeded.

The Applicant further claims that her written submissions, filed on 30 March 2023, were not considered by the First Respondent, despite being submitted before the determination was made. These submissions, which included a request to cross-examine the Complainant and present evidence, were not considered by the Disciplinary Committee. The Applicant contends that the minutes of the proceedings were not an accurate reflection of what transpired, and that the conduct of the proceedings exhibited signs of bias and irregularities.

On 14 April 2023, the Applicant was served with the determination of the Disciplinary Committee, which found her guilty of the alleged misconduct. The Applicant claims that her submissions, which were made before the determination, were not taken into account. The Applicant asserts that the failure to consider her submissions before the determination, coupled with the subsequent invitation for mitigation submissions after the determination, revealed inconsistencies in the handling of the disciplinary process.

The Applicant now seeks to challenge the fairness of the disciplinary proceedings, including the composition of the Disciplinary Committee, the refusal to consider her submissions, and the overall integrity of the proceedings. She contends that her right to a fair

hearing was violated and that the decision of the Disciplinary Committee was flawed due to procedural irregularities and perceived bias.

GROUNDS OF REVIEW

The First Respondent's decision to conduct the Applicant's disciplinary hearing in the Applicant's absence was grossly irregular and unreasonable in that it violated the employee's right to be heard more so that the decision was made in the face of evidence that Applicant was not medically fir to stand trial.

The First Respondent's decision to conduct the Applicant's disciplinary hearing in her absence in circumstances where she had communicated with the Complainant that she was still considering the "mutual termination proposal" and that the Complainant could exercise its options at law after the 29% of March 2023 was grossly irregular considering that the Applicant was not given a reasonable opportunity to make adequate representations.

The Disciplinary committee chaired by First Respondent was improperly constituted in that it was constituted in that by one of Applicant's peers and subordinate contrary to the dictates, principles and values of Second Respondent's Code of Conduct.

The First Respondent's decision not to consider the Applicant's Submissions which were submitted  before  the  determination  on  the  basis  of  that  she  had waived her rights was grossly unreasonable and irrational.

The Disciplinary Committee chaired by the First Respondent lacked jurisdiction in that there was no board resolution of the Second Respondent approving the disciplinary proceedings against the Applicant, which effectively nullifies the disciplinary processes against the Applicant.

WHEREFORE Applicant prays that:

The application for review be and is hereby granted.

The Respondents’ decision dismissing the Applicant from employment as the Human Resources and Administration Manager be and is hereby reviewed and set aside.

The Second Respondent shall pay the Applicant backpay and benefits from the 14th of April 2023 to the date of judgment.

The Second Respondent shall, within fourteen days of this judgment, decide whether to commence a disciplinary hearing against the Applicant and if no decision is made within this period, the Applicant shall stand reinstated.

If reinstatement is no longer possible the Second Respondent shall pay the Applicant damages in lieu of reinstatement as agreed between the parties, failing agreement the parties may approach this Court for quantification.

The Respondents shall pay the Applicant’s costs of suit.

APPLICANT’S SUBMISSIONS

The Applicant contends that the disciplinary proceedings instituted by the 2nd Respondent were tainted with several procedural irregularities, rendering them null and void. One of the key points in the Applicant's submission is that the Disciplinary Committee was improperly constituted, thus violating both substantive and procedural fairness. According to Section 2.4.2(a) of the Second Respondent's code of conduct, where the employee facing disciplinary action is a managerial employee, all members of the Disciplinary Committee should also be managerial employees. The Applicant argues that the committee was composed of individuals, namely Willard Zidyambanje (CFO), Tariro Mukoko (Company Secretary), and Isaiah Hokonya (acting as Head of Risk), who were either peers or subordinates to the Applicant. As such, she contends that the committee lacked the requisite impartiality and independence to conduct a fair hearing.

The Applicant has cited several cases in support of this point, including Madoda v Tanganda Tea Company Ltd 1998 (1) ZLR 374 (S), which held that any deviation from the prescribed composition of a Disciplinary Committee constitutes a procedural irregularity, rendering the proceedings null and void. Similarly, the Applicant referred to Sable Chemical Industries Ltd v Easterbrook 2010 (1) ZLR 342 (S) and Medical Imesments Ltd v Avenues Clinic v Chingwena SC 2/12, both of which reinforced the importance of adhering to established procedures in disciplinary hearings.

The Applicant also argued that the disciplinary proceedings were improperly convened in the absence of a Board Resolution approving the initiation of the process. The proceedings however commenced without such a resolution; it has to follow that such any actions taken thereafter were invalid. In support o0f this ..the Applicant has cited MacFoy v United Africa Co Ltd (1961) 3 All ER 1169, which established the principle that an act done without jurisdiction is void, and every subsequent proceeding based on it is equally void. The Applicant has also referred to Mugwebi v Seed Co Ltd 2000 (1) ZLR 93 (S) to further substantiate their argument that the disciplinary process was fatally flawed due to lack of authority at its inception.

Furthermore, the Applicant claims that her right to be heard was violated during the disciplinary process. The Constitution of Zimbabwe, under Section 68, guarantees the right to administrative justice, including the right to be heard. The Applicant argues she was denied this right, as she has not given an adequate opportunity to present their case before the Disciplinary Committee. The Applicant has cited the case of Mabuto v Women's University in Africa HH 698/15, which affirmed the fundamental nature of the right to be heard in administrative proceedings, as well as Section 3(1) of the Administrative Justice Act, which mandates that administrative authorities act in a lawful, reasonable, and fair manner.

The Applicant has also raised the issue of unreasonableness and irrationality in the proceedings, arguing that the decision by the First Respondent to disregard the Applicant's submissions and continue with the disciplinary hearing despite the Applicant's offer of mutual termination was irrational. The Applicant contends that the First Respondent’s actions were irrational and amounted to mala fides. In support of this claim, the Applicant has cited Clover Consultancy (Pvt) Ltd v Minister of Lands and Rural Resettlement SC 60/23, which recognized that unreasonableness and irrationality are grounds for reviewing administrative action. The Applicant has also referenced several cases, including Silver Trucks (Pvt) Ltd & Another v Director of Customs and Excise (2) 1999 (2) ZLR 88 (H) and Affretair v MK Airlines 1996 (2) ZLR 15 (S), to underscore the point that decisions must be based on sound reasoning and not arbitrary or irrational factors.

Finally, the Applicant sought an award of costs on a legal practitioner and client scale. The Applicant argues that the Respondents’ actions, including the improper conduct of the disciplinary proceedings and the subsequent opposition to this application, had caused unnecessary litigation and inconvenience. The Applicant has referred to Mutiniu v Crest Poultry Group (Pvt) Ltd HH 399/17, where the court awarded costs on a legal practitioner scale and clearly on the basis of the respondent’s abuse of the court process. The Applicant has also cited Nel v Waterbuung Landbovers Kooperative Vereenining 1946 AD 54 and Muduma v Municipality of Chinhoyi and Samurito 1986 (1) ZLR 12 (HC), which established that punitive costs may be awarded when one party's conduct unnecessarily increases the costs of litigation. The Applicant further argues that punitive costs were justified in this case due to the 2nd Respondent’s blatant disregard for the Applicant’s constitutional, labour, and administrative rights.

The Applicant thus seeks the nullification of the disciplinary proceedings and the award of costs on a legal practitioner and client scale due to the Respondents’ conduct.

RESPONDENTS SUBMISSIONS

The Respondents submits that the Disciplinary Committee was properly constituted and in compliance with the Tobacco Industry and Marketing Board (TIMB) Code of Conduct. According to Section 2.4.2 of the TIMB Code, where the employee is a managerial employee, all members of the Disciplinary Committee must also be managerial employees. The Respondents emphasized that the Applicant, being the Human Resources and Administration Manager, were also managerial employees and therefore, all members of the Disciplinary Committee were appropriately managerial. The committee comprised Willard Zidyambanje (CFO), Tariro Mukoko (Company Secretary), and Isaiah Hokonya (Acting Inspectorate Manager). The Respondents argues further that it has not been disputed by the applicant that Zidyambanje and Mukoko were senior employees as per the code and Isaiah Hokonya, though an Acting Inspectorate Manager, also qualified as a managerial employee.

The Second Respondents further contends that the Applicant did not challengE the constitution of the Disciplinary Committee during the hearings on 27th February, 1st March, and 2nd March 2023. It was only after failing to attend the hearing on 29th March 2023 that the Applicant raised the issue of improper constitution. In support of their position, the 2nd Respondents has cited the case of Stella Nhari v Zimbabwe Allied Banking Group Limited SC 6/20, where the appellant challenged the constitution of the committee based on the chairman being a subordinate of the CEO. In that Supreme Court case dismissed the challenge, stating that the fact that the member was a subordinate did not necessarily imply bias on his part. The Second Respondent contends that the Applicant has failed to prove any bias or unfairness in the committee’s composition, and any allegations of bias are merely speculative. The Respondent has placed reliance on Leopard Rock Hotel Co (Pvt) Limited v Walenn Construction (Pvt) Limited 1994 (1) ZLR 255 (S), which stated that suspicion of bias must be based on reasonable evidence, not vague or far-fetched fears.

`	Regarding the jurisdiction of the Disciplinary Committee, the Second Respondent has rejected the Applicant's claim that the absence of a Board Resolution at the time the disciplinary proceedings began rendered them invalid. The Second Respondent has pointed to the TIMB Code of Conduct, specifically Section 2.5.2, which permits the suspension of an employee by the immediate supervisor or manager without requiring prior Board approval. The Second Respondent also contends that the suspension letter issued by the Acting CEO, who was the Applicant’s direct supervisor, was in compliance with the Code, and therefore, the disciplinary process was valid from the outset.

On the issue of the Applicant’s right to be heard, the Second Respondent submits that while the right to be heard is fundamental, it is not absolute and can be waived. The Second Respondents referred to the case of ZESA Enterprises Pvt. Ltd v Aloyce Roy Stevawo SC 29/2017, where the Supreme Court recognized that the right to be heard could be waived if a party fails to attend a hearing despite being properly notified. The Second Respondent contends that the Applicant in this case was properly notified of the hearing on 29th March 2023, but failed to attend. The Applicant’s legal representative had acknowledged receipt of the notice but did not attend the hearing or request a postponement. The Second Respondent further submits that the Applicant later started to claim illness, this position was contradicted by her attending other judicial proceedings the day before the hearing. The Second Respondent has cited PacPrint (Private) Limited v Pilani Kumbula SC 67/17, where the court held that failure to attend a hearing constitutes a waiver of the right to be heard, and the employer is entitled to continue with the proceedings in the absence of the employee.

The Second Respondent also contends that the Applicant’s failure to attend the disciplinary hearing was not due to any fault of the Disciplinary Committee, but rather the Applicant’s absence. The Disciplinary Committee had also clearly acted in accordance with the TIMB Code of Conduct, which permits proceedings to continue in the absence of the employee if they fail to attend after being properly notified. The Second Respondent has cited Zimbabwe United Passenger Company Pvt. Ltd v Packhorse Pvt. Ltd SC 13/17, which established that the onus is on the party alleging an agreement to prove it. The Applicant in this case had failed to prove that an agreement had been made to reschedule the hearing.

Regarding the decision of the Disciplinary Committee not to consider the Applicant’s late submissions, the Second Respondent has argued that the Applicant’s defence outline should have been submitted before the hearing began in February 2023. The defence outline was only presented after the hearing had been concluded. The Second Respondent submits that the disciplinary committee was well within its rights to decline to reopen the proceedings, as this would have been contrary to the Code of Conduct. The Second Respondents also points out that the Applicant’s submissions were based on hearsay, as the evidence had already been presented, the witnesses could not be recalled for further testimony. The Second Respondent notes that the Disciplinary Committee’s decision to proceed based on the evidence already submitted was clearly reasonable and in line with the Code.

Finally, the Second Respondent’s prayer is that the application be dismissed with costs on a legal practitioner and client scale, arguing that the Applicant’s actions are an abuse of the process. She failed to on the basis attend the disciplinary hearings and comply with the Code

of Conduct the law is however clear where an employee wilfully absents herself at a disciplinary hearing. She has however chosen to unnecessarily prolong litigation.

EVALUATION

The 1st ground raised by the Applicant is that the disciplinary hearing conducted in her absence violated her right to be heard, especially given her alleged medical unfitness to stand trial. The right to a fair hearing is enshrined in the Constitution of Zimbabwe, particularly in Section 68, which guarantees that every person has the right to administrative conduct that is lawful, reasonable, proportionate, impartial, and both substantively and procedurally fair. The Applicant’s contention that the hearing conducted without her constituted a gross irregularity misapplication of the law. It is settled that every person has a right to be heard before adverse action is taken, but this right is not absolute, it may be waived by the person’s own default. In ZESA Enterprises (Pvt) Ltd v Stevawo SC 29/17 the Supreme Court reaffirmed that “no one shall be condemned without being heard” holds sway in our law, but the right may be forfeited if the party fails through his own fault to attend after proper notice. In this case at p.4 the Supreme court stated that;

“The right to be heard is a fundamental cornerstone of our law. It is a fundamental principle of the rules of natural justice forming the backbone of a fair hearing enshrined in our constitution as read with the Administrative Justice Act [Chapter 10:28]. The maxim that no one shall be condemned without being heard holds sway in our law.

The right to be heard is however not an absolute immutable rule of law. It can be waived or forfeited where the beneficiary is at fault. It is now necessary to ventilate the law and apply it to the undisputed established facts as narrated above.

Professor G Feltoe in his booklet, A Basic Introduction to The Administrative Law of Zimbabwe, states at p 18 that the principle of natural justice can be waived when he says: “Clearly when a person is offered the chance to exercise one of the rights recognized as being part of the principles of natural justice and he declines to avail himself of this right, then he has waived his right.”

In this case the employee had been duly notified of the hearing date he however absented himself. The court held that by deliberately defaulting he “irrevocably waived his right to be heard,” and the discplinarycommittee was entitled to proceed in his absence. In casu, the Applicant does not dispute receipt of a notice to attend on 29 March 2023. Her legal practitioner acknowledged having received and in fact rescheduled the date once, but ultimately failed to attend the hearing despite further notification and the offer of a legal representative. Her non- attendance cannot now be turned into a ground of review. In the absence of any contrary

evidence, the hearing proceeded with full knowledge that she had been given opportunity to appear and had declined. In those circumstances there was no denial of audi alteram partem and no procedural unfairness.

Section 3(2) of the Administrative Justice Act [Chapter 10:28] requires an administrative authority to give a person “adequate notice of the nature and purpose of the proposed action” and “a reasonable opportunity to make adequate representations.” The Applicant in fact had ample notice of the charge and hearing. She was explicitly advised per correspondence of the hearing date and the consequence of non-appearance. The only “representations” she made were informal discussions about a possible mutual termination, which are not equivalent to formal defence submissions at a disciplinary hearing. Those discussions did not bind the employer .There was also no postponement. The Applicant cannot be invoked to invalidate a duly convened hearing. Indeed, by remaining absent despite notice, the Applicant waived any further right to make representations. As the courts have long held, once an employee declines to avail himself of the opportunity to be heard, she/he has waived that right. The Applicant did not challenge the notice or seek a postponement before or during the hearing. Therefore, the disciplinary proceedings were conducted in accordance with the law, and the 1st ground of review is dismissed.

The 2nd ground of review is essentially an extension of the first. The Applicant argued that because she was engaged in negotiating a mutual termination she was deprived of a reasonable opportunity to make adequate representations due to the ongoing negotiations regarding a mutual termination proposal. However, the law does not mandate that negotiations for mutual termination preclude a disciplinary hearing from proceeding, especially when the employee has been properly notified of the hearing date. The Administrative Justice Act expressly entitles a person to a reasonable opportunity to make representations. Section 3(2) of the Administrative Justice Act provides as follows;

“(2) In order for an administrative action to be taken in a fair manner as required by paragraph (a) of subsection (1), an administrative authority shall give a person referred to in subsection (1)—

(a)adequate notice of the nature and purpose of the proposed action; and (b)a reasonable opportunity to make adequate representations; and

(c)adequate notice of any right of review or appeal where applicable.”

In casu the requirement was satisfied by service of notice and the chance to appear or submit written defence at the hearing. The mere fact that the Applicant and employer discussed an exit package does not substitute for participating in the disciplinary process or give the Applicant

carte blanche to miss the hearing. In fact, she was repeatedly invited to make her case but chose not to attend or request a formal postponement in time. Having been duly notified and having ignored the hearing dates, she cannot now claim lack of representation. There is no authority for the proposition that preliminary negotiations negate the duty to hold a hearing once convened, especially when the Employee herself failed to attend. The case of ZESA Enterprises Pvt Ltd v Stevawo supra reinforces that the right to make representations does not grant a party the power to unilaterally delay or cancel hearings. The Applicant received all the opportunities guaranteed by the Act and code, and thus this ground also fails.

The 3rd ground of review concerns the composition of the Disciplinary Committee. The Applicant contends that the Disciplinary Committee was improperly constituted because two of its members were the Applicant’s peers and one her subordinate. However, the composition complied strictly with the TIMB Code, which required that all committee members be managerial employees when the charged employee is in a managerial position. The committee was chaired by the Chief Finance Officer (a managerial post) with the Company Secretary and an Acting Inspectorate Manager as members. Each of these held a managerial rank comparable to or above the Applicant, satisfying clause 2.4.2(a) of the Code. Therefore, there was no deviation from the prescribed composition. In Madoda v Tanganda Tea Co Ltd SC 97/02 the Supreme Court held that if a code specifies a committee’s makeup and the employer departs from that, the proceedings are tainted by procedural irregularity and are null and void. Here, however, there was no such deviation: the Code’s requirement that managers be tried by managers was adhered to. Thus, the rule in Madoda and its progeny do not render these proceedings void. Moreover, in the case of MMCZ v Mazvimavi 1995 (2) ZLR 353 (S) that it must be shown that the employee concerned was prejudiced by the procedural irregularity. The basis of this position has been that an employee must not escape the consequences of their misdeeds simply because of a failure to conduct proceedings properly.

Furthermore, the principle of impartiality, as discussed in Chingodza v Minerals Marketing Corporation of Zimbabwe & Others HH 430/18, requires that there be no bias or appearance of bias. No evidence of bias amounting to actual or apparent partiality was placed before the court. The mere fact that some committee members were at the same level or reported to the complainant does not, without more, establish bias. The Applicant failed to demonstrate any actual bias or prejudice during the proceedings. Even if one member reported to the CEO who brought the charge, the mere fact of subordinate relationship does not disqualify a tribunal absent proof of actual or likely bias. Bias must be established by evidence,

not inferred simply from organisational charts. Here, the Committee conducted the hearing openly, allowed multiple postponements, and even requested submissions from the Applicant which she failed to deliver. The minutes show an impartial approach, with indulgences granted for the Applicant’s benefit. No one has pointed to any misconduct by the committee members or unfair rulings in favour of the employer during the hearing. In the absence of proof of partiality, the composition cannot be impugned on this ground and therefore this ground is meritless.

On the 4th ground of review, the Applicant asserts it was unreasonable for the committee to refuse her late-filed submissions on the basis that she had waived her rights. Yet once again the underlying fact is that she absented herself and only thereafter hurriedly compiled submissions. The committee had already concluded the hearing, it had heard all the employer’s evidence and then properly invited both parties to make submissions. After hearing was closed, it would have been procedurally irregular to reopen the case and receive new evidence or submissions that were not tendered during the hearing. This is in line with the TIMB Code of Conduct, which mandates that written defence outlines be submitted before the hearing begins. The Applicant's defense submissions were presented after the hearing concluded, and the Disciplinary Committee acted within its discretion in refusing to reopen the proceedings to accommodate these late submissions. In Clovet Consultancy (Pvt) Ltd v Minister of Lands and Rural Resettlement HH 337/17, the court affirmed that administrative action must be reasonable and based on the facts before the committee at the time.

Moreover, any refusal of post-hearing submissions was not irrational or in bad faith. As required by section 3(1)(a) of the Administrative Justice Act, decisions must be lawful, reasonable and fair. Here, declining the Applicant’s unsolicited after-the-fact affidavits was a reasonable application of the rules. The committee did permit the Applicant and Respondent to make mitigation submissions on sanction, which is standard practice once guilt has been determined. Mitigation deals with penalty issues rather than the facts of the charge; the Applicant did not lose any right, since by her default she had already forfeited her right to contest the charge on the merits. There is no indication that the committee acted in bad faith or failed to apply its mind. In short, refusal to consider the Applicant’s late submissions was not so outrageous as to shock the conscience, and was a reasonable enforcement of procedural rules rather than an arbitrary denial of justice.

On the 5th ground of review, the Applicant contended that the Disciplinary Committee lacked jurisdiction because there was no Board resolution authorizing the disciplinary

proceedings. The Second Respondent argued that the suspension letter, issued by the Acting CEO, was in accordance with the TIMB Code, which allows the immediate supervisor or manager to suspend an employee. The TIMB Code of Conduct specifically permits suspension by the Head of Department when there are reasonable grounds to believe that an offence has been committed.

The case of Macfoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC) at 1172 reinforces the principle that if an act is void for lack of authorization, it is a nullity and all proceedings based on it are similarly void. However, in this case, there was no explicit requirement in the TIMB Code for a Board resolution prior to initiating disciplinary proceedings. The Respondents were within their rights to commence the disciplinary process and the subsequent resolution did not retroactively invalidate the proceedings. There is no incontestable ground to hold the committee a priori lacked jurisdiction. Even if one were to find that the resolution was a technical prerequisite, any such defect could potentially be cured by ratification. Therefore, this ground fails.

All five grounds of review fail to establish sufficient basis for setting aside the disciplinary proceedings. The Applicant’s right to be heard was not violated, the disciplinary committee was properly constituted, and the refusal to consider late submissions was a reasonable exercise of discretion. Furthermore, the lack of a Board resolution did not affect the jurisdiction of the Disciplinary Committee.

It is accordingly ordered; the review is dismissed with costs.