Court name
Supreme Court of Zimbabwe
Case number
SC 17 of 2007
Civil Appeal 168 of 2005

Duly Holdings v Chanaiwa (68/05) (SC 17 of 2007, Civil Appeal 168 of 2005) [2007] ZWSC 17 (08 July 2007);

Law report citations
Media neutral citation
[2007] ZWSC 17









DISTRIBUTABLE
(13)





Judgment
No. SC 17/07


Civil Appeal No.
168/05








DULY
HOLDINGS v PETER CHANAIWA








SUPREME COURT OF
ZIMBABWE


ZIYAMBI JA, GWAUNZA JA
& GARWE JA


HARARE, JANUARY 29, &
JULY 9, 2007








H Zhou, for the
appellant





S Maruza, for
the respondent









GWAUNZA JA: This is an appeal against an order of the Labour Court
requiring the appellant to reinstate the respondent to his
employment
with it, or in lieu thereof pay him damages.





The facts of the
matter are not in dispute. The respondent was employed by the
appellant as a Branch Manager. Due to what was
referred to by his
Managing Director, Mr Papalexis, (“Papalexis”) as the
respondent’s failure to comply with instructions from
his
superiors, unauthorized absence from his office and work performance
that left a lot to be desired, a letter to the following
effect was
written to the respondent by Papalexis:






“1.
You are no longer permitted to leave your Branch without
my authority or that of                (the)
Financial Director, during working hours.





             
2.
You will cease to play golf during working hours without prior
approval.







3. 3 – 5 (not relevant to these proceedings).







Should you have any queries regarding these
instructions, please refer them to me. Failure to comply with these
instructions
will result in disciplinary action which may include
dismissal.”











On 14 March 2002 the respondent requested authority to play golf in
the afternoon. Such authority was denied. He then asked for
permission to go to the bank for about 20 minutes, which was granted.
It is not in dispute that after the respondent left (ostensibly
to
go to the bank) he did not come back to work for the rest of that
day. Nor did he come to work the following day, which was a
Friday.
No word was received from the respondent as to where he might have
been during the period of his absence.





These developments
prompted Papalexis to write, on 15 March 2001, to the respondent,
commenting on his unauthorized absence from work
and drawing
attention to the earlier correspondence, in which he had been
instructed not to absent himself from the office without
authority.
Papalexis, through the same letter, also suspended the respondent
with immediate effect, pending a disciplinary hearing
to answer
charge number 12:10 of the Code of Conduct (“the Code”), that is
“failure to obey or comply with lawful instructions
given by a
person in authority”.





A disciplinary hearing
was duly held on 25 March 2002, and was chaired by Papalexis. The
respondent was found guilty of the charge
preferred against him, a
circumstance that led to the disciplinary committee unanimously
agreeing that he should be dismissed from
employment. The respondent
thereafter noted an appeal with the Managing Director, who happened
to be Papalexis, against the decision
to dismiss him. In his appeal,
he took issue with the fact that the disciplinary hearing had been
chaired by the Managing Director,
i.e Papalexis, contrary to the
appellant’s Code of Conduct (“the Code”), when in terms of the
Code he would be required to
file his appeal to the same Managing
Director. The respondent charged, therefore, that the disciplinary
committee had not been properly
constituted, as required by Part III
S 14.14.4 of the Code, which reads as follows:



“No employee shall be discharged from the service of the company
without the proper disciplinary procedure having been taken.”







The respondent’s
appeal was heard on Tuesday 9 April 2002 and, at Papalexis’
instruction, was chaired by the Finance Director,
Mr Mutyambizi, who
also acted as the management representative. The respondent lost the
appeal, and subsequently appealed to the
Labour Court. The Labour
Court upheld the respondent’s argument that the disciplinary
proceedings had not been conducted in compliance
with the Code. In
addition to this, it was the Labour Court’s finding that the rules
of natural justice had not been observed
in the manner in which the
disciplinary proceedings against the respondent were held. For this,
the court a quo relied on Chataira v Zesa HCH 9/2000
where it was held that the rules of natural justice required no more
than that the domestic tribunal acts according to
the commonsense
precepts of fairness.





Observing that
failure to follow the provisions of the Code was fatal to the
disciplinary proceedings, the court a quo held that the
respondent’s dismissal was, therefore, wrongful. It ordered that
he be reinstated with no loss of salary or benefits,
failing which
the appellant was to pay him damages in lieu of reinstatement.





The appellant
submits, (i) that the court a quo erred in determining that
there was a violation of the rules of justice in relation to the
respondent and (ii) that contrary to the
respondent’s assertions,
he had suffered no prejudice from the procedure adopted. The
appellant also submits as an alternative
ground of appeal, that if
there were procedural irregularities involved, the court a quo
should have remitted the matter for a re-hearing or dealt with the
merits of the case itself, instead of ordering the respondent’s
reinstatement.





I will consider the
argument pertaining to the rules of natural justice first.





The appellant’s
contention that the disciplinary proceedings against the respondent
accorded with the principles of natural justice,
is premised on four
grounds.





These are –







  1. that the appellant did the “best thing in the circumstances” in
    order to guarantee the respondent natural justice, in the absence
    of
    a provision in the Code providing for the equivalent of a “head of
    department” for the respondent who, himself, was the
    head of his
    branch;









  1. that in the absence of a provision in the Code specifically
    covering the conduct of disciplinary proceedings against a branch
    manager, the appellant had ensured that the respondent’s case was
    properly heard before the disciplinary committee constituted
    and
    chaired by Papalexis for that purpose;









  1. that since the provision in the Code for an appeal to the branch
    manager and the Operations Director in the relevant section did
    not
    apply to the respondent, the appellant had done the best it could
    under the circumstances to ensure that the appeal was determined
    by
    a committee that excluded Papalexis, who had chaired the earlier
    disciplinary committee proceedings; and









  1. that in any case, the respondent was given ample opportunity to be
    heard in accordance with the audi alteram partem rule.1








The appellant submits in the light of this that there were no
procedural irregularities in the proceedings against the respondent.

Further that, in any event, this Court has emphasized the importance
of flexibility of disciplinary tribunals, and the principle
that they
are there to conduct an enquiry (ZFC v Eunice Geza SC 14/98).







I find the appellant’s contentions to be persuasive. It has not
been disputed that the respondent was a branch manager and therefore
the most senior official at his branch. The appellant’s Code
outlines a procedure for disciplining an employee who in his work
is
accountable to a departmental head who, in turn, reports to the
branch manager. The role of these two in such disciplinary procedure
is clearly laid out. The Code attempts, in its Part III, to address
the situation involving the discipline of a senior employee,
by
stating as follows:










“14.  In the case of senior staff, the alleged offence  will
be reported to the          
         relevant
Operations Director/Manager at Head Office”.










The Code, however, does not go on to set out the disciplinary
procedure to be followed after the Operations Director/Manager at
Head Office is seized with the matter. While one might attempt to
seek guidance or draw parallels from the procedures laid out for
less
senior staff, there is no denying the fact that this gap in the Code
leaves the field open for relevant senior staff to apply
disciplinary
procedures that, in their view, accord justice to the offending
employee. The appellant argues this is what happened
in casu.
Papalexis, being the respondent’s superior, set in motion a
process that saw the respondent being charged with an offence
provided
for in the Code, being given an opportunity to answer to
those charges, appearing before a disciplinary committee and
thereafter
filing an appeal against that committee’s determination
and subsequently appearing before an appeal committee. Having
chaired
the disciplinary committee, Papalexis constituted an appeal
committee that excluded him but had the requisite representatives
from
management and workers.





The respondent avers
that he was prejudiced by the procedure followed in these
disciplinary proceedings. He submits it was unlikely
that, at the
appeal stage, any other employee would have risked his employment by
going against the judgment of the Managing Director,
that is
Papalexis.






I am not persuaded by this argument. Apart from Papalexis not having
solely determined the respondent’s fate at the disciplinary
committee stage, since he sat with others on the committee, the
appeals committee, in its turn, comprised members who represented,
in
equal numbers, management and workers. To suggest without
substantiation that members of both these committees so stood in awe
of Papelexis that they would not have dared to go against his
(Papalexis’s) judgment on the respondent’s case, is, in my view,
to unfairly put their personal integrity and professionalism into
question.






The appellant’s
argument that it did the best thing under the circumstances to ensure
that the respondent had a fair hearing cannot,
in my view, be
faulted. To the extent that the respondent was given an opportunity
to answer to the charges and present his side
of the story, he
should not be heard to say that there was no observance of the audi
alteram partem
rule. The court a quo correctly noted in
its judgment that the rules of justice required no more than that the
domestic tribunal acts according to the
commonsense precepts of
fairness. Given the circumstances outlined above, I respectfully
disagree with the court a quo’s conclusion that it could, in
casu
, not be said that the rules of natural justice were
observed. I am satisfied that the respondent was, therefore, not
prejudiced
in any way by the disciplinary procedures followed.



The appellant argues, correctly, that the adoption of disciplinary
procedures not specifically outlined in the Code finds support
in ZFC
v Eunice Geza
SC 14/97, where this court emphasized the
importance of flexibility in the conduct of disciplinary tribunals,
and the principle that
they were there to conduct an enquiry. It
cannot, in my view, be said in this case that the disciplinary
tribunal did not conduct
an enquiry.






The appellant argues
in the alternative that, even if there were procedural
irregularities, the court a quo erred in ordering
reinstatement. The appellant correctly cites Dalny Mine v Banda
1999 (1) ZLR 220 in which this Court emphasized the undesirability of
deciding labour matters on the basis of procedural irregularities,
instead of putting right such irregularities. The latter would be
achieved either by remitting the matter for a hearing de novo,
and in a procedurally correct manner, or by the Tribunal hearing
evidence2.
This Court has also stressed the point that once the tribunal
decides that the proceedings were fatally irregular, and that it
cannot come to a conclusion on the merits, it has no choice but to
remit.





In casu,
there is no evidence that the court a quo addressed its mind
to the option of remitting the matter to the appellant, in keeping
with the decisions of


this Court referred to.
That clearly was a misdirection at law.






Although I have considered remitting the matter to the court a quo
for the appropriate determination as indicated, I am also
cognizant of the need to bring finality to the case. Accordingly,
since all
the evidence that would enable this court to determine the
matter on the merits has been placed before us, I shall proceed to do
so.






It is evident from
the record that the respondent disregarded specific instructions
given to him not to absent himself from work
without authority.
While his belated explanation that he fell sick on both the days he
absented himself from work, sounds somewhat
farfetched, he did not
ensure that even this explanation was transmitted to his office. The
respondent explained that on both occasions
he had fallen violently
sick while driving his car, had stopped the car and then fallen
asleep, only waking up some 3 to 4 hours
later. He suspected it was
food poisoning. By his own admission, he not only did not inform his
wife of the first bout of sickness,
but also left home the following
day with no indication that he would not be going straight to work
as usual. He asserted that he
had only informed his wife of the
second bout of sickness when he got home at the end of the second
day. That was after he found
that the letter of dismissal had been
left at his home.





Under these
circumstances, the disciplinary committees that heard the matter
initially and on appeal clearly were correct in their
finding that
the respondent had indeed disobeyed lawful and specific instructions
given to him by his superior. Their finding that
the respondent’s
explanation lacked credence cannot be faulted, neither can their
determination to dismiss him. The appeal must
therefore succeed.





It is in the result
ordered as follows –







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



  2. The judgment of the Labour Court is hereby set aside and
     substituted with the following -




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












ZIYAMBI JA: I
agree










GARWE JA: I
agree

















Gill, Godlonton & Gerrans, appellant’s legal
practitioners


Chingore &
Garabga
, respondent’s legal practitioners














1
See
Sefularo
v President of Bophuthatswana & Anor

1994 (3) SA 80 at 82E




2
See
also
Air
Zimbabwe Corp v Mlambo

1997 (1) ZLR 220 (S)