Court name
Supreme Court of Zimbabwe
Case number
SC 63 of 2005
Civil Appeal 109 of 2004

Olivine Industries (Pvt) Ltd. v Gwekwerere (09/04) (SC 63 of 2005, Civil Appeal 109 of 2004) [2005] ZWSC 63 (28 November 2005);

Law report citations
Media neutral citation
[2005] ZWSC 63










REPORTABLE
ZLR (58)








Judgment
No. SC 63/05


Civil
Appeal No. 109/04








OLIVINE
INDUSTRIES (PRIVATE) LIMITED v DAVID GWEKWERERE








SUPREME
COURT OF ZIMBABWE


SANDURA JA, CHEDA
JA & GWAUNZA JA


HARARE,
MAY 16 & NOVEMBER 29, 2005








H
Zhou
, for the
appellant





H
Simpson
, for the
respondent








GWAUNZA
JA: The respondent was employed by the appellant as manager of its
Mutare branch. On 25 June 2002, a Mr G Good (“Mr
Good”), who
was the Director responsible for sales and marketing addressed a
letter to the respondent suspending him from duty
with immediate
effect without pay and benefits.






The suspension followed an
investigation conducted at the instance of the appellant, into the
offences allegedly committed by the
respondent. The offences
essentially were dishonesty, theft of company property and gross
dereliction of duty. Mr Good had considered
both the findings of
the investigation and the respondent’s response to them, before
suspending him. The letter of suspension
referred to invited the
respondent to report to the appellant’s Mutare Branch for a
disciplinary hearing on the 3
rd
of July 2002. The hearing was to be held in terms of Step 2 of the
“Disciplinary Structure and Levels of Authority” part of
the
appellant’s code of conduct.





A
day before that date, the respondent’s legal practitioner addressed
a letter to the appellant:






(a) requesting
a postponement of the hearing to 12 July 2002;



(b) asking for confirmation that
the respondent would be entitled to legal representation at the
hearing; and



(c) objecting to the respondent
being represented at the hearing by a member of the workers’
committee on the ground that as a Branch
Manager he did not “belong”
to the Workers’ Committee. Also that, in any case, most of the
allegations he was facing stemmed
from his subordinates.





It
would appear from the record that the request for legal
representation of the respondent at the hearing, which was postponed
to
10 July 2002, was denied.





The
respondent’s legal practitioners wrote again to the appellant on 9
July 2002, reiterating their argument that the respondent
could not
be represented by the workers committee at the disciplinary hearing.
In the same letter the legal practitioners pointed
out as follows:





“If
indeed the idea of his being legal (sic) represented at the hearing
is disagreeable, then we suggest that a mutually agreed managerial
representative be appointed to represent him or alternatively the
matter should be referred to the Ministry of Labour for adjudication.






Please note that under our advice
Mr Gwekwerere will not be attending the hearing set for Wednesday the
10
th
July and will only attend a hearing which meets the minimum
requirements of justice and fair play”.








The
disciplinary hearing was duly held, in the absence of the respondent
on 10 July 2002. He was found guilty as charged and dismissed
from
his employment.






After what I view as a
half-hearted attempt to appeal to the Disciplinary Committee of the
appellant, the respondent then applied
to the High Court for a review
of the proceedings leading to the decision to dismiss him. He cited
two grounds of review, namely
that the procedure used in dismissing
him was such as to deny him a fair opportunity to be heard, and that
no fair hearing was convened
in terms of the code of conduct.






The court a
quo
found in favour of
the respondent and ordered the appellant to reinstate him to his
former employment without loss of salary or benefits.
Dissatisfied
with the decision of the High Court, the appellant now appeals to
this Court.







The appellant’s main ground of
appeal is that the court
a
quo
erred in hearing
the matter considering:






(a) that the respondent had not
exhausted domestic remedies provided in the code of conduct; and







(b) that the appellant had,
indeed, not furnished the court
a
quo
with a full record
of the disciplinary proceedings.






It is argued in this latter
respect that the decision of the court
a
quo
, can therefore not
be a review of such proceedings since the regularity or otherwise of
the proceedings can only appear from the
record.






Another ground of appeal is that
the court
a quo
should have, as is the norm, ordered payment of damages in
lieu
of reinstatement.





I
will consider these grounds in the light of the evidence before me.





Exhaustion
of domestic remedies





It
is not in dispute that the respondent was called to attend a
disciplinary hearing in accordance with Step 2 of the “Disciplinary
Structure and Levels of Authority” of the appellant’s Code of
Conduct. Through his lawyers the respondent expressed misgivings
about the composition of the hearing panel, as already explained.
He also set certain conditions for his attending, but in the
end and
as earlier threatened by him, refrained from attending the hearing,
which went ahead without him. Witnesses’ evidence
was recorded
and considered against the respondent’s written responses to the
various charges levelled against him. The hearing
was conducted by
the Head of Department, Mr Good, in the presence of an accountant, a
Mr Marshall whose role at the hearing was not
explained.





The
determination to dismiss the respondent was communicated to him on 22
July 2002. The respondent, through his lawyers, then
wrote to Mr
Good on 2 September 2002, indicating his intention to appeal to the
Disciplinary Committee of the appellant.





The
letter went on to say;





“Strictly
speaking, and in our respectful view, our client has not been
accorded a hearing at all. This could be rectified by following
any
of our suggestions proffered in our letter of 9 July 2002. Please
let us hear from yourselves within 7 days of this letter.
In the
event that you fail to accede to our suggestions within 7 days of
this letter, we have to advise that it is our client’s
intention to
apply to the High Court for similar relief ….”








In
the event, and despite giving notice to appeal, the respondent filed
review proceedings in the High Court. His reason for not
pursuing
the appeal to the Disciplinary Committee was that the appellant,
through Mr Good, had “thwarted” his attempt to exhaust
local
remedies. This was in reference to a letter written by Mr Good in
response to the respondent’s letter of 2 September 2002.
In that
letter, Mr Good had implied that the respondent’s appeal would be
out of time and that he still stood dismissed.






Having considered the appeal
process as outlined in the appellant’s Code of Conduct, I am
persuaded by the appellant’s contention
that the respondent
abandoned his domestic remedies for no valid reason. According to
the Code of Conduct, the respondent was obliged,
which he in fact
did, to notify the Head of Department of his intention to appeal to
the Disciplinary Committee. Nowhere, however,
does it say that the
Head of Department must then give his leave for the aggrieved
employee to so appeal. Indeed Mr Good’s letter
of 6 September
2002, while it may not have been encouraging, did not purport to
forbid the respondent from appealing to the Disciplinary
Committee.
In any case, the letter itself was unnecessary and certainly did not
stand in the way of the respondent’s appealing
to the Disciplinary
Committee, had he so wished. The evidence before the court suggests
the respondent did not wish to do so. Therefore,
the real reason for
him to take the matter to the High Court, as threatened in the letter
of 2 September 2002, was that the appellant
refused to take up his
lawyers’ suggestions as expressed in their letter of 9 July 2002.





In
the High Court, the respondent sought a review of the decision of his
Head of Department, the same relief that, according to the
appellant’s Code of Conduct, he could have more speedily obtained
from the Disciplinary Committee had he taken his appeal to it.
The
argument is therefore correctly made on behalf of the appellant that
the Disciplinary Committee, which had powers of review,
could have
afforded the respondent effective redress against what he perceived
to be an unlawful termination of his employment.





Clause
5.2.2 of the Code of Conduct reads as follows:






“The
appellant shall submit his appeal in writing, stating his reasons for
appeal. The disciplinary committee shall allow the appellant
an
opportunity to expand

on his appeal then
review
the disciplinary record, proceedings and documentary evidence to
arrive at its decision”. (my emphasis)






Thus in addition to considering
an appellant’s reasons for appeal, the Disciplinary Committee, by
allowing the appellant an opportunity
to “expand” his appeal
before reviewing the proceedings and other evidence would in effect
have re-heard the matter. The implication
of such a re-hearing
vis-a-vis
the first hearing was clearly explained by Smith J in
Paddington
Musandu v Chairperson of Cresta Lodge Disciplinary & Grievance
Committee
HH 115-94 as
follows:






“The
appeals provided for are a rehearing of the matter in the fullest
sense of the word in which the matter will be fully considered
by the
Disciplinary and Grievance Appeals Committee and then by the Labour
Relations Tribunal if there is a further appeal. In
my view, this
court should not be prepared to review the decision of a domestic
tribunal merely because the aggrieved person has
decided to apply to
court rather than to proceed by way of the domestic remedies
provided. The factors mentioned by MTAMBANENGWE
J in
Tutani’s
case
supra should
be carefully considered before a decision is made. A litigant should
exhaust his domestic remedies before approaching the courts
unless
there are good reasons for approaching the court earlier.”






In Girjac
Services (Private) Limited v Mudzingwa,

1999 (1) ZLR 243 (S) at 249 E-F GUBBAY CJ restated the same principle
in different words:





“In
this matter, the procedure under s6 of the Code of Conduct, and the
availability of an appeal to the Labour Relations Tribunal,
was
capable of affording the respondent effective redress against the
unlawful termination of his employment. Furthermore, the
unlawfulness had not been undermined by
such
domestic remedies, for the grievance procedure had not been resorted
to. Finally, no special circumstances or good reasons
were advanced
by the Respondent for approaching the High Court. He maintained
silence.





It
follows that I can find no warrant for not enforcing the requirement
that the Respondent ought to have exhausted the remedies available
to
him under the domestic legislation. It is on this ground that the
appeal succeeds.”







These dicta,
I find, can properly be applied to the circumstances of this case.
The appeal procedure as outlined in the appellant’s Code of
Conduct, would have allowed both a review and rehearing of the matter
at the disciplinary committee stage, an appeal to the head
of
business and thereafter to the Labour Court. It would in short,
have afforded the respondent effective redress against what
he
perceived as an unlawful termination of his employment.







There is, besides this, no
evidence to suggest, nor has the respondent made the allegation, that
the perceived unlawfulness had been
undermined by the said domestic
remedies. This is particularly so given the fact that the
Disciplinary Committee, according to
the Code of Conduct was composed
of the personnel manager, the chairman and secretary of the workers’
committee, two other heads
of departments and the appellant’s head
of department,
if
required
. Thus Mr
Good, against whom the respondent alleged bias and ill will towards
him, would necessarily not have been required to sit
on the
committee.





Finally,
as already indicated and despite the



finding by the learned judge a
quo,
the respondent
did not, in my view, advance any special reasons for by-passing the
domestic remedies and approaching the High Court.
The reason that
he gave was, in my opinion, both feeble and untruthful.







It is clear on the evidence
before the Court that the respondent had an obvious disdain for the
domestic remedies contained in the
appellant’s Code of Contact.
He made no serious attempt to invoke them.






In the final result, I find that
the court
a quo
should, for the reasons outlined, have declined to hear the
application. The appellant’s ground of appeal in this respect is
therefore upheld.





Incomplete
record of proceedings for which a review was sought






The court a
quo
observed correctly
that the appellant had failed to comply with Rule 260 of the High
Court Rules requiring the lodging with the Registrar,
of the original
record. The rule is expressed in peremptory terms and reads as
follows:






“(1) The
clerk of the inferior court whose proceedings are being brought on
review, or the tribunal, board or officer whose proceedings
are being
brought on review,
shall
within twelve days of the date of service of the application for
review, lodge with the registrar the original record, together with
two typed copies, which copies shall be certified as true and correct
copies. The parties to the review requiring copies of the
record
for their own use shall obtain them from the official who prepared
the record.” (my emphasis)









There is no dispute that the
appellant failed to provide the full record to the Registrar and
therefore, the court
a
quo.
Reference in
the Head of Department’s lengthy determination is made to no less
than twenty annexures. The annexures, it is
indicated, contained
evidence substantiating the various charges brought against the
respondent. Such evidence would have been
relevant to a
consideration of the merits of the case against the respondent.






As noted earlier, the learned
judge
a quo
was alive to the shortcomings in the record submitted by the
appellant. The respondent, too, could not have failed to appreciate
the same. It was, no doubt, open to the learned trial judge to
direct that the full record be made available, in the meantime
postponing
the hearing of the matter. The respondent, in his turn,
would have been within his rights to demand the full record before
the
matter could be heard. However, neither the learned trial
judge, nor the respondent chose to exercise these options.






Even though it was through its
default that the full record was not provided, the appellant
nevertheless in my view is justified
in its argument that the court
a
quo
was not in a
position to properly review the decision of the Head of Department
without the full record of proceedings. In her judgment,
the learned
judge
a quo
literally conceded the cogency of this argument. After commenting
on the incompleteness of the record, she noted as follows on
page 7
of the judgment:





“…… It
is thus not possible in the absence of such documents for the court
to make a finding whether or not the decision reached in the
determination (by Good) was reasonable.”






Therefore, having decided, in
its discretion, to hear the matter despite the disregard by the
respondent of the domestic remedies
as outlined in the Code of
Conduct, my view is that the court
a
quo
should have felt
the necessity to ensure that the matter was determined on the basis
of a full record of the proceedings whose review
was being sought.





Since
the court
a quo
proceeded to hear the
matter in the face of these two serious shortcomings, that is, the
disregard of the domestic remedies, and the
incomplete record, I am
satisfied there is merit in the appellant’s main ground of appeal
as already outlined.





Damages
in
lieu
of Reinstatement






The court a
quo
set aside the
dismissal of the applicant “without loss of salary and benefits.”
The appellant contends, correctly, that the
effect of the order was
for the appellant to reinstate the respondent. It is contended
also, that the order of the court
a
quo
did not take into
account the possibility that the working relationship between the
parties might have irretrievably broken down
due to mutual loss of
confidence and trust between them. In that case, it is further
contended, an alternative order for the payment
of damages would have
been more appropriate.
2






I find there is substance in this
contention.
In casu,
the respondent charged that Mr Good had exhibited ill will towards
him, while the appellant fully believed the respondent was guilty
of
dishonesty and gross dereliction of duty. In these circumstances,
it is more probable than not, that a normal working relationship
would not have been capable of restoration had the appellant been
forced to take the respondent back.






The appellant has cited
Girjac’s
case (
supra)
as authority for the proposition that where the reinstatement of an
employee could not be tolerable to both parties, an alternative
order
for the payment of damages in
lieu
of reinstatement would be appropriate. It is, in any case, now
accepted that an order for reinstatement must be accompanied with
an
alternative order for the payment of damages in
lieu
of reinstatement (
Hama
v National Railways of Zimbabwe

1996 (1) ZLR 664 (S).







An applicant must however, make
and argue a case for such alternative relief.







In the court a
quo
, the respondent
sought an order, simply, that his dismissal be set aside without loss
of salary and benefits. To his detriment,
he did not consider,
argue for, nor, therefore, claim, an alternative order for the
payment of damages in
lieu
of reinstatement.






In Girjac’s
case (
supra)
at 250 C-D this Court considered that very point and determined as
follows:





“Since
the issue of damages had not been argued, let alone raised in the
papers, the learned judge (deciding
,
as he must have, that the court’s intervention was properly sought)
ought to have dismissed the application on the ground that
the nature
of the relief claimed was misconceived; leaving it to the respondent,
if so advised, to pursue a claim for damages by
way of fresh
proceedings.”








Thus
on the authority of this
dictum,
the learned judge
a quo
should, on the same basis, have dismissed the respondent’s
application.





All
in all the appeal has merit and must therefore succeed.



In
the result it is ordered as follows:






1. The appeal be and is hereby
allowed with costs.



2. The judgment of the court a
quo is set aside and
is substituted with the following:






“The
application be and is hereby dismissed with costs.”








SANDURA  JA: I
agree.














CHEDA
JA: I agree.











Coghlan
Welsh & Guest
,
appellant’s legal practitioners


Manase
and Manase
,
respondent's legal practitioners









2
See
Muringi v Air Zimbabwe Corporation & Anor 1997(2) ZLR 488 (S)