No S.C. 108\2002
Appeal No 143\2002
REMOVALS v MICHAEL ZIVAI NYAKUTSIKWA
COURT OF ZIMBABWE
CJ, CHEDA JA & GWAUNZA JA
SEPTEMBER 24, 2002
appearance for the appellant
respondent in person
JA: At the hearing of this matter we made an order that the
appeal be dismissed with costs, and that our reasons would
available on request.
respondent who appeared in person has now written to the Registrar
requesting the reasons.
was no appearance for the appellant and we were only informed late at
the hearing of the notice of withdrawal.
respondent also advised the court that he had just seen the notice of
withdrawal. The respondent himself had not filed his
of the above reasons the matter was not argued.
if the matter had been argued it would not have succeeded on the
merits for the following reasons.
the respondent appeared before a committee for the first hearing he
had not been informed what charges he was facing. It
seems he had
been asked to submit a report about his having absented himself from
work without permission because the Chairman said
he had received the
report that morning.
he was asked to explain to the committee where he had gone the
respondent wanted to know who constituted the committee.
exchange that followed thereafter suggests that the Chairman thought
the respondent was rude and arrogant and did not recognise
member of the Tribunal who heard the matter summed the situation
correctly, in my view, when she said:-
impression one gets from the above is that the Chairman and the
Workers Committee were more concerned with asserting their authority
over the appellant rather than with the explanation from the
this confrontational hearing the respondent got a letter from the
Operations Manager giving him a Final Written Warning.
respondent, being unhappy with this Final Written Warning, wrote back
to the Operations Manager raising queries about the appropriateness
of the warning.
offended the appellant further, and was followed by yet another
hearing in which he was told that he had committed a serious
by adopting that procedure.
was told at this second hearing that he was to part with the company
and his contract of employment was terminated.
letter of dismissal followed on 28 September. It was only in this
letter that he was told about the misconduct for which he
dismissed. He had neither been charged nor had a hearing for those
in fact, the appellant considered that the respondent was guilty of
conduct controlled by the Code the allegations should have
provided to him in writing and a Notice of Hearing served on him.
was entitled to know the exact nature of the allegations against him
so that he could prepare to defend himself at the hearing.
not done. He was only asked to explain where he had been.
he was only told the allegations in the letter of termination of
employment. He never had a fair hearing.
my view it is a very simple procedure for companies to follow the
the employee in writing of the allegations against him and ask him
to submit his response on or before a certain date, giving
sufficient time to do so.
the employee with a Notice of Hearing, advising the date and place
where the hearing is to take place.
the employee the results of the hearing, that is, the decision
arrived at if a penalty or dismissal is imposed.
The respondent in this particular
case was not properly charged. To call an employee, ask him a few
questions then impose a penalty
is certainly not a fair hearing.
Companies that have Codes of Conduct should follow the procedure
according to those Codes. An
employee charged under a Code of
Conduct should be informed of the actual provisions of the Code under
which his conduct falls.
That, after all, is the purpose of having
I indicated earlier, the order dismissing the appeal has already been
made and these reasons are only a response to the request
made by the
CJ: I agree
AJA: I agree
appellant's legal practitioners