DISTRIBUTABLE (115)
Judgment
No S.C. 108\2002
Civil
Appeal No 143\2002
STUTTAFORDS
REMOVALS v MICHAEL ZIVAI NYAKUTSIKWA
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, CHEDA JA & GWAUNZA JA
HARARE
SEPTEMBER 24, 2002
No
appearance for the appellant
The
respondent in person
CHEDA
JA: At the hearing of this matter we made an order that the
appeal be dismissed with costs, and that our reasons would
be
available on request.
The
respondent who appeared in person has now written to the Registrar
requesting the reasons.
There
was no appearance for the appellant and we were only informed late at
the hearing of the notice of withdrawal.
The
respondent also advised the court that he had just seen the notice of
withdrawal. The respondent himself had not filed his
heads of
argument.
Because
of the above reasons the matter was not argued.
Even
if the matter had been argued it would not have succeeded on the
merits for the following reasons.
When
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.
When
he was asked to explain to the committee where he had gone the
respondent wanted to know who constituted the committee.
The
exchange that followed thereafter suggests that the Chairman thought
the respondent was rude and arrogant and did not recognise
the
Workers Committee.
The
member of the Tribunal who heard the matter summed the situation
correctly, in my view, when she said:-
The
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
appellant
Following
this confrontational hearing the respondent got a letter from the
Operations Manager giving him a Final Written Warning.
The
respondent, being unhappy with this Final Written Warning, wrote back
to the Operations Manager raising queries about the appropriateness
of the warning.
This
offended the appellant further, and was followed by yet another
hearing in which he was told that he had committed a serious
breach
by adopting that procedure.
He
was told at this second hearing that he was to part with the company
and his contract of employment was terminated.
A
letter of dismissal followed on 28 September. It was only in this
letter that he was told about the misconduct for which he
was being
dismissed. He had neither been charged nor had a hearing for those
charges.
If,
in fact, the appellant considered that the respondent was guilty of
conduct controlled by the Code the allegations should have
been
provided to him in writing and a Notice of Hearing served on him.
He
was entitled to know the exact nature of the allegations against him
so that he could prepare to defend himself at the hearing.
This was
not done. He was only asked to explain where he had been.
Instead
he was only told the allegations in the letter of termination of
employment. He never had a fair hearing.
In
my view it is a very simple procedure for companies to follow the
following steps:-
Advise
the employee in writing of the allegations against him and ask him
to submit his response on or before a certain date, giving
him
sufficient time to do so.
Serve
the employee with a Notice of Hearing, advising the date and place
where the hearing is to take place.
Advise
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
these Codes.
As
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
respondent.
CHIDYAUSIKU
CJ: I agree
GWAUNZA
AJA: I agree
Zamchiya &
Costa,
appellant's legal practitioners
