Vanzai Majada v Health Services Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/410/2016
HARARE, 16 MAY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/410/2016

HARARE, 16 MAY 2016				          	CASE NO. LC/H/REV/147/15

AND 8 JULY 2016

In the matter between:-

VANZAI MAJADA							Applicant

And

HEALTH SERVICES BOARD					Respondent

Before The Honourable F.C. Maxwell, Judge

For Applicant		Mr W.P. Zhangazha (Legal Practitioner)

For Respondent		Mr W. Matsika (Legal Officer)

MAXWELL, J

This is an application for review of the proceedings of the Health Services Board Disciplinary Committee.  Applicant was a principal tutor at Mpilo Central Hospital.  She was charged with acts of misconduct in terms of the Health Service Regulations SI 117/06.  A disciplinary hearing was conducted on 2 December 2013 and she was found guilty and was discharged from service.  Applicant appealed to the respondent against conviction and penalty.  He respondent ruled that the matter be reheard with it assuming the role of the Disciplinary authority.

On 10 and 11 June 2015 the rehearing was conducted and applicant was found guilty of unlawfully charging and collecting fines from Trainee nurses and abusing such funds.  As penalty applicant was ordered to go on early retirement with effect from after duty on 31 December 2015 failing which she would be deemed discharged from the service with effect from 31 December 2015.  On 29 December 2015 applicant filed the present application.  The grounds for review are;

The Heal Services Board grossly erred and misdirected itself in conducting this disciplinary hearing despite being biased and impartial with an interest in the matter having adjudicated over the same in an earlier appeal where the Health Services Board clearly ruled an applicant’s guilty (sic) but only conducted the hearing de novo to correct previous irregularities.

The second hearing of the same matter against applicant by an entity that had heard the matter on merits before denied the applicant a fair hearing and breached rules of natural justice.

The Health Services Board committed gross irregularities in not following clear provisions of the disciplinary procedure in the applicable Code of Conduct being SI 177/06.

Applicant prayed for the setting aside of the determination as grossly irregular and against principles of natural justice.

Respondent denied that there was any misdirection and stated that it had no interest in the matter.  Further that the second hearing was conducted by members of the Secretariat who did not have anything to do with the Appeal when it was considered by the Board.  Respondent challenged the applicant to prove the alleged irregularities and prayed for the dismissal of the application for review.

Applicant filed heads of argument on 4 February 2016 and served a copy on respondent the same day.  Respondent only filed heads of argument on 26 April 2016 without seeking condonation.  Although there was no obligation on respondent to file heads of argument as it was not represented by a registered and practicing legal practitioner, once the legal officer decided to file heads of argument, the obligation to do so within the prescribed time frame arises.  Respondent’s heads of argument should have been filed within 14 days from 4 February 2016.  Respondent is therefore barred in terms of rule 19 (3) (b).  The Court will however proceed to deal with the matter on the merits.

Whether or not the Disciplinary Committee of the Health Services Board was biased

Applicant’s counsel argued that a board that had prior knowledge of the case presided over the hearing de novo.  The record of proceedings shows that the decision to refer the matter for hearing de novo was taken at a board meeting held on 17 December 2014.  The members of the board are listed as Dr O.L. Mbengeranwa Dr E. Xaba, Mrs T.J. Watungwa, Mrs E.Y. Mangwende, Mr S. Gula-Ndebele and Mrs R.P. Smith.  The decision of the board was communicated to the applicant’s legal practitioners by Ms R.R. Kaseke.  The committee for the rehearing was constituted by Mr J. Marambe, Mr C. Mudimu and Dr J.Z. Chiware with Ms A. Masenda minuting. The record does not indicate that any one of the newly constituted committee had prior knowledge of the initial proceedings. It was stated in Jerry Musarira v Anglo – American Corporation SC 53/05 that as long as a charge of misconduct is preferred by an employer against an employee there is always a certain element of institutional bias, as the employer is the offended party.

In any event the record of proceedings indicates that applicant was comfortable with the composition of the disciplinary committee. Counsel for applicant referred to a case that states that prior knowledge of a case is a basis for bias.  I find that no proof has been tendered that any of the members of the disciplinary committee had prior knowledge of the case.  I therefore find no merit in the first ground of appeal.

The second ground of appeal alleges that applicant was denied a fair hearing and rules of natural justice were breached as a result of the hearing of the same matter by an entity that had heard the matter on the merits before.  As stated above there is always institutional bias in labour matters.  Appellant has not demonstrated in what way the rules of natural justice were breached.  The newly constituted disciplinary committee did not include Board members who had deliberated on the appeal but members of the Secretariat.  The record indicates that applicant was advised of the right to legal representation but opted to proceed without counsel.  I find no merit in the second ground of appeal.

Whether or not the provisions of the disciplinary procedure in the Code of Conduct, SI 177/06 were followed

Counsel for applicant pointed out a number of issues that he alleged point to non-compliance with the Code of Conduct.  Firstly, he submits that the remittal should have been to the relevant disciplinary authority instead of the respondent itself.  He made reference to section 51 (2) of SI 117/06 which states that the board may refer the matter back to the disciplinary authority.  It is common cause that a remittent of a matter to be heard de novo pre-supposes a situation where the previous hearing is disregarded.  The disciplinary proceedings will be commencing afresh.  In terms of the proviso to section 42 of SI 177/06, the Board may determine that it shall be the disciplinary authority in a particular case.  In this case the Board decided to be the disciplinary authority for the hearing de novo.  There is nothing irregular about that decision as it is allowed by law.

Secondly, it is pointed out that in the rehearing the respondent did not conduct its own investigations and therefore started proceedings in the middle.  Counsel submitted that they should have started at the beginning of the process.  I do not find merit in that submission.  The remittal did not say that there was to be a fresh investigation but a fresh hearing.  In my view the reason is simple.  A hearing panel can be reconstituted whereas the witnesses may remain the same, especially in the circumstances of this case.  I find no merit in the criticism of the procedure taken.

Thirdly, Counsel for applicant argues that in the redetermination the respondent omitted to prefer a charge or charges of misconduct against the applicant.  Page 4 of the minutes of the disciplinary hearing on record shows that the committee used the charges that were preferred by the Chief Executive Officer on 14 August 2013.  The allegations were read to applicant and she was asked her response to the allegation.  Counsel seems to be pursuing the argument above that the whole process should have been started afresh.  What was to be done afresh was the hearing, not the preferring of charges.  I therefore find no merit in this argument.

Fourthly Counsel submits that applicant was not presented with an opportunity to present a written reply.  Again that is reference to the investigation stage.  The disciplinary committee was constituted not to investigate allegations but to hear a matter which had already been investigated.  I therefore find no merit in this argument also.

Lastly, Counsel submits that applicant was not given adequate notice before the hearing.  The purpose of adequate notice is to afford a party enough time to prepare as stated by Counsel.  However there is no indication that applicant was prejudiced.  The minutes of the hearing actually indicate  that the committee was prepared to afford applicant the opportunity to be legally represent, which would have meant a postponement of the hearing.  Applicant was prepared to proceed.  Applicant did not object to the short notice.  In Duly Holdings v Chinaiwa 2001 (2) ZLR 1 it is stated that it is not enough to allege procedural irregularity.  The party so complaining must go further and demonstrate that was it not for the irregularity the outcome would have been different.  I therefore find no merit in this submission as well.

In conclusion, Counsel for applicant submitted that applicant’s grievance is that the disciplinary committee simply took the old record and tried to correct it without creating a new record and a new process as required.  The submission is without basis.  The record of proceedings of the impugned process was signed off as a true reflection of what transpired between February and April 2014.  The new committee was reconstituted in 2015.  They confirmed the accuracy of their record in September 2015.  Applicant has not substantiated the allegation that the old record was corrected without creating a new record.

In the final analysis the application has no merit and it cannot succeed.  Accordingly the following order is appropriate;

The application for review be and is hereby dismissed for lack of merit.

Chinogwenya & Zhangazha, applicant’s legal practitioners