Wilfred Jaure v Women’s University in Africa

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/354/24
HELD AT HARARE 23RD JULY 2024 AND
CASE NO. R-LC/H/1037/23
In the matter between
WILFRED JAURE
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE
Held at Harare 23rd July 2024 and

In the matter between
Wilfred Jaure
And
Women’s University in Africa

BEFORE THE HONOURABLE MAKAMURE, JUDGE.

FOR THE APPLICANT : E. T. Mandaza
FOR THE RESPONDENT: R.T. Mutero

MAKAMURE J:

This is an application for review. The following are grounds for review.

‘1.The Disciplinary Authority lacks jurisdiction to preside over the matter since the applicable code of conduct sets up an appropriate disciplinary committee with jurisdiction and which is different from this disciplinary authority.

2. The Disciplinary authority was biased against the Applicant in the hearing de novo because the same disciplinary authority had previously presided over the same case albeit using the wrong procedure and had already convicted him of the same charges.

3.The proceedings and decision of the Disciplinary Authority are grossly irregular since they were conducted in the absence of the Applicant without serving him with a notice to attend the hearing.

4.The proceedings of the Disciplinary Authority were also grossly irregular in that they did not use the peremptory procedure in the applicable code which prescribes the applicable forms and procedures of its own creation which are in the applicable code of conduct.

5.The Disciplinary Authority’s decision convicting and dismissing Applicant is grossly irregular since there is no competent charge in the charge letter and there were other new charges he was convicted of without having been charged with them first.’

Preliminary Issue

At the commencement of the hearing a preliminary issue was raised on behalf of the applicant. The preliminary issue was to the effect that the notice of response was defective in that a wrong form was used contrary to the provisions of Rule 20(2)(a) of the Rules of this Court Statutory Instrument 150 of 2017 (the Rules/ S.I.150/17). It was argued that in view of this the respondent is barred and there is therefore no notice of opposition and judgment should be entered in favour of the applicant.

In response Mr Mutero who appeared on behalf of the respondent admitted the use of a different form went to aver that there was a typographical error of some sort. He averred that the appropriate form in an application for review was Form LC5. However, he used Form LC3 as there is a typographical error in the Rules. He argued that under the circumstances the point in *limine* had no merit and should be dismissed. In response Ms Mandaza who appeared for the applicant submitted that there were no typographical errors in the Rules and as such the respondent remained barred.

It is trite that rules of court must observed. Non-observance of rules of court is discouraged. It is also an established principle in this jurisdiction that it is undesirable for labour matters to be decided on the basis of technicalities and that where there are technicalities, they ought not to be ignored but should be put right. **Dalny Mine v Banda 1999(1) ZLR 220.** Equally important is the need for the Labour Court to ensure that industrial justice is dispensed between parties without being bogged down by technicalities. **Mapondera and Fifty Five Others v Freda Rebecca Gold Mine SC81/22.** Further, when papers are being filed parties are free to approach the Registrar for confirmation of whether or not a form which may have been modified is compliant. In terms of R47(3) a litigant is allowed to modify a form and the Registrar may refuse such modified form where the Registrar is of the opinion that the form is not compliant. While the present matter does not raise the question of modification of forms, I think parties should always consult with the Registrar of this Court whenever they are in doubt. Now going back to Rule 20 which provides for reviews, the relevant part reads as follows:

'(1) A person wishing to seek review of proceedings referred to in terms of the Act shall, within twenty-one days from the date when the proceedings are concluded, do the following—

(a) complete in three copies a notice of review in **Form LC 5**; and

...(2) The respondent shall, within ten days of receiving a notice of review—

— (a) complete in three copies a notice of response in **Form LC 2**;

...(‘Emphasis added).

In the present matter the applicant used Form LC5 and the respondent in his ‘Notice of Opposition’ used Form LC3. According to the “ARRANGEMENT OF FORMS” listed under the SCHEDULE (RULE 47) (the schedule) to the Rules, **FORM LC3** is the prescribed form for a NOTICE OF OPPOSITION in an application for review. From LC 2 is indeed for the NOTICE OF RESPONSE, but then the form stipulates: ‘Take notice that the Respondent intends to oppose **the appeal**’. (Emphasis added) So while Rule 20(2)(a) requires a respondent in an application for review to complete Form LC2, the schedule refers to the same form as an opposition to an appeal. This is something that the respondent cannot do anything about. The respondent is therefore in compliance with the rules. There appears to be a typographical error in the rules themselves. Where Rule 20 provides that the respondent ‘completes in three copies of response in Form LC2’, the form listed in the
 Schedule is Form LC3. The respondent can therefore not be blamed for using the forms prescribed in the schedule. Bhunu JA in the **Mapondera case (above)** cautioned both judges and legal practitioners against being unduly technical. This is clearly contrary to the purpose of the Labour Act, Chapter 28:01 (the Act). Raising an issue which the other party cannot change is clearly contrary to the principle of equity. It is obviously important that issues like this be dealt with but I do not think that they should disadvantage litigants or stall proceedings. In view of this, the preliminary issue has no merit. It amounts to an abuse of the Court. The preliminary issue is dismissed.

**Merits**

The facts of this matter which appear not disputed are as follows. The applicant was employed by the respondent as a Procurement Officer. He had during the course of his duties, occasion to associate with a young woman intern attached to the respondent. The allegations are that on ten separate occasions he conducted himself before the young in a manner which was sexually coloured resulting in a charge of sexual harassment being raised against him. The conduct included: touching her leg in an untoward manner causing the young lady discomfort; proposing love to the young lady which she turned down but that he persisted and while so he persisted she broke down and cried; sending the young lady ‘whatsapp’ messages. As a result of his conduct towards this young lady, he was suspended from duty and disciplinary proceedings were conducted against him for ‘any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of their contract’. This was in terms of the Labour (National Employment Code of Conduct Regulations, 2006) Regulations Statutory Instrument 15 of 2006 (S.I.15/06). He was convicted. He appealed on the basis that the respondent used the National Code of Conduct and yet it has got its own code. The appeal was successful. Applicant was reinstated. This was on 1st November 2023.

He was on 3rd November 2023 suspended for allegedly sexually harassing a female student intern in terms of the appropriate code, that is the Code of Conduct for National Employment Council for the Welfare and Educational Institutions (NECWEI). The letter of suspension reads thus (in part):

‘We refer to the above subject.

You are hereby suspended from duty for twenty-one (21) days with effect from the 3rd of November 2023 to the 26th of November 2023, in terms of section 6.2.6 of the Employment Code of Conduct for the Welfare and Educational Institutions. The basis for the suspension is to allow the University to complete investigations and conclusively deal with allegations against you of sexually harassing Miss Chiedza Nicole Senah, Student Intern in the Procurement Section.

...(Counts 1to 10 are then listed)

Your actions highlighted above, if proved to be true, are clear that you did not act as required in terms of your position as Procurement Officer as well as your employment regulations. In light of the above allegations, you are hereby requested to respond to the allegations being laid against you by Miss Senah .Attached is the report from Miss Senah for your perusal.
 Your written response should be submitted to the Deputy Registrar, Human Resources and Administration not later than 8th November 2023.

(Signed)

The applicant responded to the above letter. Part of his response reads:

‘PROCEDURAL ISSUES

The response being asked for is unprocedural for the reason that no charge has been preferred against me. The applicable code does not provide for this. I therefore except to this process being used in the disciplinary procedure. My response cannot be used as a response to a charge that has not been made.

The clause under which I am charged as well as the particulars of the charge have not been made known to me.

The following responses are therefore being made out of abundance of caution and in the alternative to the above exception.

ON THE ALLEGATIONS IN DETAIL

I have read the allegations against me in the letter of suspension and would like to respond as follows:

a) I deny all allegations of sexual harassment against me by Miss Senah. I have never made any sexual advances towards her and have never harassed her in any way. None of the alleged “factual allegations” constitute sexual harassment in any way.

b) I deny that I ever called Miss Senah at night asking her about personal issues.

c) I deny touching her right leg while driving to Bulawayo on 18th August 2023. I was concentrating on driving and no contact took place. Mr Nyambalo from the Finance department is a witness to the whole trip. He will testify that there was no such contact.

d) I deny ever verbally assaulting Miss Senah at any given point, more specifically on 18th August 2023 as I was trying to locate the lodge in Bulawayo. I sought her help as I was driving trying to locate the lodge but she failed to assist me because she was preoccupied on her phone during the trip.

e) I did not tell her that I loved her on 18th August 2023 in my booked room and I certainly did not persist until she started crying. I had mentioned to her that I was not happy with the way she failed to help me while I was driving to the lodge and she was on her phone and this made her cry because she does not like being criticized in any way.

f) I have never attempted to hug Miss Senah at any point.

g) I did take pictures of himself and Miss Senah during the trip as a record of the trip we had taken. She also took a number of pictures with her cellphone as well. All of these pictures are available for examination and I confirm that none of them were taken in an inappropriate position. **They were simply a record of their(sic) trip as workmates and nothing more.**

h) I did not attempt to kiss Miss Senah on the hand on 19th August 2023.

i) With regard to the messages which I allegedly sent to her on Whatsapp on 19th August 2023, **I did offer to buy her a gift in an attempt to flirt with her as a workmate, but she refused the gift and did not flirt back with me.** As a result, I made it clear that I respected her decision and would stop flirting with her. This did not develop to the level of harassment because as soon as she expressed that she was not interested in him, I immediately stopped flirting with her(sic).

j) **On 24th August 2023 I advised her that I would be going to South Africa as she had once expressed an interest in going. I asked her if she would like to go as well and she did not respond.** Nothing ever came of that discussion and he never persisted with the issue.

k) She lives close to the office so I gave her the keys to the office. I live in Chitungwiza so it was more convenient for her to have the keys. She refused to walk to the office and this resulted in delays so I advised her to give the keys back.

2. We would also like to put the following issues forward for your attention:

a) Miss Senah was introduced to our department by the Pro Vice-Chancellor, Professor Madzivire, who asked the department to assist her by giving her a job. She has the backing of someone who is more senior to our client as a result. I never promised to give her the job since I was under the impression that she had already been given the job.

b) There have been incidences in which I criticized Miss Senah’s failure to correctly perform her duties. One such incident is when she signed a cost comparative schedule without authority to do so. This happened 3 separate times which are recorded. She however reacted negatively to every criticism levelled against her. I believe this is what has led to the current proceedings. I was the acting manager in the department and as a result I have to ensure that everything is done correctly. However, she is under the impression that she is above criticism, most likely because she knows she has the backing of the Pro-Vice Chancellor who brought her to the department.

...’(Emphasis added)

On 20 November 2023 the respondent invited the applicant for a hearing along the following lines:

‘Dear MR JAURE

RE : CHARGE SHEET AND NOTIFICATION TO ATTEND A DISCIPLINARY HEARING IN TERMS OF EMPLOYMENT CODE OF CONDUCT FOR THE WELFARE AND EDUCATIONAL INSTITUTIONS

The above matter refers.

You are hereby invited to attend a disciplinary hearing before a Disciplinary Authority to be convened as follows:

Venue: Women’s University in Africa


Time: 1000 hours

Date: 24 November 2024

1. Charge
   Following investigations carried out with regard to allegations of sexual harassment raised by Miss Chiedza N. Senah against you, you are hereby charged in terms of schedule 4(22) of the Employment Code of Conduct for the Welfare and Educational Institutions which states that an employee commits gross misconduct if they commit “sexual harassment (where there are no extenuating circumstances)”.

On 24th November 2023 a hearing was conducted against the applicant for sexual harassment in violation of paragraph 22 of Schedule 4 of the NECWEI. The paragraph reads:

“Sexual harassment (where there are no extenuating circumstances)”.

The factual basis of the charge are as follows:

…(Ten counts of allegations are listed).’

At page 53/77 of the consolidated record there are Whatsapp messages sent to the applicant. These include one which shows that Matongo: ‘dropped a file at your residence for tomorrow’s meeting as per the notice I sent you on Monday. The file was received by Mrs Jaure.’ The message is dated 23 November 2023.

On the 24th of November 2023 a meeting to conduct a disciplinary hearing against the applicant was convened. The applicant was in default. It was established that he was duly notified about the date of the hearing at his home address. There was no reason given for his absence. It was also noted that the applicant’s wife was verbally advised about this by the respondent’s Deputy Registrar, Human Resources, a Mr W. Matongo( Mr Matongo/Matongo). The disciplinary hearing was conducted. It was found that the applicant’s conduct towards the intern amounted to unwelcome sexually determined behaviour as defined in the Labour Act, Chapter 28:01 (the Act). After the deliberations the applicant was found guilty as charged. He was penalized with dismissal. He appealed internally. The appeal failed with the appellate body noting among other things, that a litigant had no right of appeal to an outcome of a hearing which took place in his absence.

In his founding affidavit(8/77) the applicant averred that the disciplinary hearing which was conducted in his absence was unprocedural, because he was never served with a notice of hearing. He further stated that the Disciplinary Authority which conducted the proceedings had no jurisdiction to do so but that a disciplinary committee ought to have conducted the hearing as provided for in the applicable code. He stated further that the forms inviting him for the hearing as prescribed in the applicable code were not used making the proceedings grossly irregular. He also stated that the charge letter did not contain a competent charge and therefore he was convicted of an offence with which he was not charged with in the first place. He stated further that none of the ten(10) counts he was charged with stands on its own. He also stated that the letter which he wrote responding to the charges was not considered. He further stated that there was no legal basis for the hearing authority to have concluded that the intern did not consent to the love proposals which he allegedly made. He was also aggrieved that when the matter was heard afresh or for the second time no new evidence was led against him. Applicant also alleged that the hearing committee was biased against him because it is the same which conducted the first hearing unprocedurally. For this reason, the applicant stated that the hearing committee simply endorsed their previous decision.

It was argued on behalf of the applicant that the respondent’s hearing body lacked jurisdiction because they did not comply with provisions of the applicable code. It was argued that the respondent relied on a clause of the code which empowered it to constitute a disciplinary authority where it was not able to constitute a quorum. It was argued further that the respondent institution has got a workers committee and as such that should have been utilized. It was submitted under the circumstances that this was a fatal irregularity. The cases of **Madoda v Tanganda 1999(1) ZLR ZLR 374 (SC); Mugwebie v Seedco Ltd & Anor 200(1) ZLR 93** were cited in support of this submission.

On the question of bias it was argued that the applicant was served but the hearing was conducted to conclusion without evidence. It was then argued that there was no proof of service. It was submitted that because the hearing was conducted without any evidence being led, that was proof of bias.

During the course of the hearing the applicant abandoned the fifth ground for review.

In response, in the opposing affidavit deposed to on behalf of the respondent by its Deputy Registrar (Matongo), it is stated that service of process was physically made at the applicant’s homestead in Chitungwiza. Further it was stated that the applicant’s wife accepted the documents but refused to sign for them. The Deputy Registrar also stated that his efforts to reach the applicant by cellphone did not yield any positive results as the cellphone was not answered. The Deputy Registrar also referred to ‘Whatsapp’ messages which show that the messages informing the applicant about the hearing were delivered and read. As regards the appointment of the hearing body Matongo stated that this was done in terms of s8 of the NECWEI.

On the contrary it was argued on behalf of the respondent that there was no workers committee at the respondent institution and that is why Clause 8 was used in setting up the hearing body. It was also argued that since the applicant asserted that there was a workers committee, this should have been proved. On the question of bias, it was argued that bias must be proved. On the question of the proof of service it was argued that the contents of the opposing affidavit were not disputed and neither were the ‘Whatsapp’ messages challenged. There was also no affidavit from the applicant’s wife disputing that the papers were served.

I will now turn to the law and what it says and also refer to definitions of some of the terms which have been used in these proceedings.

Paragraph 8 of the NECWEI which the respondent relied on in disciplining the applicant provides as follows:

‘8 DISCIPLINARY AUTHORITY

Where the Institution is incapacitated because of the size of the establishment or where there is no Workers Committee there shall be a Disciplinary Authority to administer disciplinary proceedings.’


The Act was promulgated by the Legislature with a purpose. The purpose is to be found in S2 which provides in part as follows:

‘2A Purpose of Act

(1) The purpose of this Act is to advance social justice and democracy in the workplace by—

(a) giving effect to the fundamental rights of employees provided for under Part II;

(b) …

(c) …

(d) the promotion of fair labour standards;

(e) …

(f) securing the just, effective and expeditious resolution of disputes and unfair labour practices.’

And the Act provides for unfair labour practices as follows:

‘8 Unfair labour practices by employer

An employer or, for the purpose of paragraphs (g) and (h), an employer or any other person, commits an unfair labour practice if, by act or omission, he—

(a) to (g)…

(h) engages in unwelcome sexually-determined behaviour towards any employee, whether verbal or otherwise, such as making physical contact or advances, sexually coloured remarks, or displaying pornographic materials in the workplace.’

The Act provides for review as follows:

‘92EE Grounds of review by Labour Court

(1) Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection with is Act may be brought on review before the Labour Court shall be—

(a) absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

(b) interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned:

(c) gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.’

The dictionary defines ‘sexual harassment’ as ‘unwelcome sexual advances, either verbal or physical, especially by someone with power and authority.’

The applicant admits that he ‘did offer to buy her a gift in an attempt to flirt with her as a workmate., but she refused the gift and did not flirt back with me…This did not develop to the level of harassment because as soon as she expressed that she was not interested in him, I immediately stopped flirting with her.’


And

‘flirt’ is defined as ” to court triftingly or to act amorously with serious intent,” while amorous is defined as ‘inclined or disposed to love, especially sexual love’.

After hearing argument, the Court indicated that if it was necessary, after considering both the record and argument, to call evidence on the question of proof of service, parties would be duly advised. The Court reserved its judgment.

I have now read the record and considered argument, I am satisfied that there is no need to adduce evidence on the question of proof of service. The reasons will follow.

In the present matter the applicant alleges lack of jurisdiction, bias, irregularity based on conducting a hearing in the absence of the applicant without having been served with a notice to attend the hearing and that peremptory provisions of the applicable code concerning the use of the appropriate forms were ignored.

I have consulted the forms which are prescribed by the code. All the forms identify the parties, that is the employer and the employee. I list them below.

1. Form 1 is a ‘Notification of Investigation’. The following are some of the features to be found on the form. The form advises the alleged offender of the allegations against them and requires them to respond to such allegations by a certain date; it identifies the person who served the alleged offender, the witness to such service and the alleged offender.

2. Form 2 is the “Employee’s Response to Allegations’. This form as the title suggests, is for the alleged offender to write their response.

3. Form 3 is the ‘Charge Sheet’. The form notifies the alleged offender of the charge and suspension

4. Form 4 is the “Notification to attend a Disciplinary Hearing.’ The form advises the alleged offender the date, time and venue of the hearing and advises them of their rights.

5. Form 5 is the ‘Determination of Disciplinary Hearing Proceedings”. The form advises the alleged offender of the results of the hearing.

6. There is a Form 6 but it is not applicable to the present matter.

7. Form 7 is an ‘Appeal Form’. It allows the person to appeal against the decision giving the reasons for the appeal.

If consideration is had to how the respondent communicated the allegations right up till the appeal stage, it will be noted that whatever was required to be done at any stage, was done. What may be missing is the notation ‘Form.’ For example, if the letter of suspension dated 3November 2023 is considered, it has all the elements required in Form 3. The same goes for all the correspondence between the respondent and the applicant with respect to the disciplinary proceedings that were conducted against him.

The applicant says he was not served. The affidavit by Matongo shows that service was done at the applicant’s home. The papers were physically personally delivered and were left with his wife who refused to sign for them. That was not controverted. A follow up was made through messages. That was not challenged. In the case of **David Moyo v Rural Electrification Agency SC 4/14** the Supreme Court dealing with a situation where an employee travelled instead of attending a hearing had this to say:

‘In our view the appellant, by deliberately absenting himself without leave from the hearing, waived his right to challenge the conduct of the disciplinary proceedings. He had the option, which he did not exercise, of seeking a postponement since he knew that he would not be available on the date of the hearing. In these circumstances we do not feel that the failure by the respondent to strictly comply with the Regulations operated to vitiate the disciplinary proceedings.’ Equally in the present matter, the applicant had a choice to communicate with the employer regarding whether or not he would be able to attend the disciplinary hearing. He chose both not to communicate and also not to attend. The applicant can therefore not say that he was not notified about the hearing. He was aware but he chose not to attend. The Supreme Court in **Zimbank v Masendeke 1995 (2) ZLR 400(S)** held that willful default occurs when a party who has full knowledge of the service of notice to attend disciplinary proceedings decides to refrain from attending a hearing even though they are fully aware of the consequences or risks attendant upon such non-appearance. The appellant was fully aware. He deliberately refrained from attending the hearing.

The applicant is challenging the manner that he was convicted in that the Disciplinary Authority simply rubber stamped a previous decision. That is an appealable matter since in essence it touches on the evidence. However, the code is clear on what amounts to sexual harassment and the procedure in the hearing *de novo* followed what was presented before it and not a previous decision. This is because of the following. There were reports which reports he responded to. In his response he admitted to making a suggestion trying to flirt with the complainant. She resisted. He says when he took pictures of him and the intern, they were a record of the trip. It is however curious that when he was on the trip he was in the company of the intern and another person, a man. Applicant does not include this man when taking the picture. He does not explain why. He then invites the intern to accompany him on a trip to South Africa. He does not say whether or not this was sanctioned by the respondent. The intern was disturbed by the applicant’s conduct. She is the one who was at the receiving end of the applicant’s conduct. His remarks were unwelcome to the recipient. It was not for the applicant to say the level was not harassment. He practically admits to the harassment but then qualifies it. The Disciplinary Authority found him guilty on a balance of probabilities, to have sexually harassed the intern. He cannot allege that the Disciplinary Authority was biased against him. Nor can he say that the Disciplinary Authority rubber stamped a previous decision. The Disciplinary Authority was simply narrating what happened. On jurisdiction, the authority was properly appointed in terms of the code. Whether or not the fact that it had previously dealt with the matter (using a wrong procedure) affected its ability to deal with the same matter in the correct manner, the code does not say. Had there been need to specify the question of jurisdiction to hear such matter in the correct way, that would have been specified or provided for in the code. There is no such provision. Thus, the Disciplinary Authority had jurisdiction.

It is trite that he who alleges bears the onus to prove. In **Kudzai Mwatukuya Mubaiwa (nee Chikumba) v Gainmore Mubaiwa SC 19/22** the Supreme Court stated that ‘Thus, her assertions remained bald assertions contrary to the established position that he who alleges must prove’. Similarly, in the present matter the applicant’s grounds for review remain bald assertions in the face of how the respondent followed the letter and the spirit of its code of conduct with unquestioned diligence. Even where the use of Paragraph 8 of the applicable code has been challenged, the Supreme Court in the case of **Air Zimbabwe (Private) Limited v (1) Chiku Mnensa (2) Mavis Mwarveye SC 89/04** stated that: ‘A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee. He should escape such consequences because he is innocent’. In any event it was proper for the respondent to conduct the proceedings in terms of Paragraph 8 of the code. The applicant in the present case has actually failed to prove that the disciplinary proceedings conducted against him were flawed. As shown above none of the four grounds has been proved on a balance of probabilities. This means that there is no merit in all the grounds for review. In the result the application has no merit. It must be dismissed.

In view of the foregoing

IT IS ORDERED THAT:

1. The application for review be and is hereby dismissed.

2. There is no order as to costs.

**CHINOGWENYA & ZHANGAZHA, APPLICANT’S LEGAL PRACTITIONERS.**

**SACHIKONYE-USHE LEGAL PRACTITIONERS, RESPONDENT’S LEGAL PRACTIONERS.**
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