DISTRIBUTABLE (77)

Judgment No SC 89/04

Civil Appeal No 388/02

AIR ZIMBABWE (PRIVATE) LIMITED v (1) CHIKU MNENSA (2) MAVIS MWARWEYE

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, ZIYAMBI JA & MALABA JA

HARARE FEBRUARY 5 & NOVEMBER 1, 2004

N. G. Maphosa, for the appellant

K. Ncube, for the respondent

CHIDYAUSIKU CJ: This is an appeal from a judgment of the High Court (SMITH J). The court a quo ordered the reinstatement of the respondents without any loss of benefits. The facts of the matter are that the respondents were employees of the appellant. In or about November 2001 they were charged with misconduct in terms of the code of conduct. The allegations against the respondents were that in the course of an illegal industrial action the respondents evicted senior members of the management of the appellant from their offices.

On 15 November 2001 the respondents were suspended without pay and other benefits. The letter of suspension reads as follows:-

“I make reference to my earlier letter on allegations of misconduct leveled by the A/GM-HR & GM/OPS in which the above were alleging that you evicted them from their offices on Wednesday 14^th November 2001.

Your conduct, if proven, constitutes a gross act of misconduct under Part 5 paragraph 3(b), and 3(n) of the Code of Conduct.

You are accordingly suspended without pay and benefits with immediate effect, pending a hearing to determine the case.

You are therefore prohibited from entering the premises with immediate effect unless otherwise advised in writing by me or your divisional head.”

Thereafter, the respondents were charged with misconduct before a disciplinary committee. The record is not very clear, but it would appear that the committee found the respondents guilty but could not agree on the punishment to be imposed. The deadlock was broken by the Chairman, a member of management, using his casting vote in favour of the guilt and dismissal of the respondents.

The respondents then, in accordance with the code of conduct, appealed to the General Manager. The General Manager set aside the decision of the disciplinary committee and ordered the matter to be heard de novo. The determination of the General Manager reads as follows:-

“Having gone through the submissions made by counsel as the basis upon which the proceedings should be nullified, it is my decision that the appeal be upheld and that the matter be brought for a fresh hearing.

Should it be necessary for me to elaborate on the reasons therefore, I shall be pleased to do so.”

The full and detailed reasons for the determination are not given. The record however indicates that the proceedings were set aside because the respondents were denied a proper hearing at the disciplinary proceedings. In particular, the respondents were denied legal representation.

The General Manager never considered the merits of the case. He set aside the proceedings because of the alleged irregularity. After the proceedings were set aside by the General Manager the respondents sought reinstatement. The appellant refused to reinstate them.

The respondents thereafter filed a court application in the High Court. In the court application the respondents sought the following relief set out in the draft order:-

“IT IS ORDERED THAT:

1. Second respondent be and is hereby ordered to reinstate applicant without loss of benefits.

(2) Second respondent will bear the costs of this application.”

In the court a quo the appellant (then respondent) raised the issue of the propriety of the proceedings. In particular, the appellant raised the issue of whether the proceedings were a review of the General Manager’s determination or an appeal against that decision. That issue was not dealt with by the court a quo. No appeal has been noted against the failure to determine that issue. This Court is therefore not seized with that issue.

It is not clear on what basis the High Court assumed jurisdiction in this matter. In terms of the code, an appeal lies to the Labour Court from the General Manager’s determination. No appeal lies to the High Court against the General Manager’s determination. This was not an application for review.

Be that as it may the issue that is before this Court and falls for determination is whether the respondents were entitled to reinstatement as ordered by the court a quo. The question is, once the proceedings of the disciplinary committee were set aside by the appellant’s General Manager, were the respondents entitled to reinstatement as ordered by the court a quo? Or did the respondents revert to suspension without pay and benefits as contended for by the appellant. Mr Maphosa, for the appellant, submitted that the court a quo erred in finding that the setting aside of the respondents’ dismissal by Mr Chingwena (“Chingwena”) automatically meant that they were reinstated. He argued that Chingwena was right in remitting the respondents’ cases for a fresh hearing before the disciplinary committee. In essence Mr Maphosa’s submission was that, whenever disciplinary proceedings are set aside because of irregularity without due consideration of the merits, the status of the employee reverts to the status quo ante. He submitted that prior to the disciplinary proceedings the respondents were on suspension without pay and other benefits pending the determination of the allegations of misconduct. This is the status to which the respondents reverted upon the setting aside of the proceedings of the disciplinary committee. For this proposition he relied on the case of Standard Chartered Bank of Zimbabwe Ltd v J. Chikomwe and 211 Ors S-77-2000.

In that case an improperly constituted disciplinary committee upheld the decision of hearing officers who had dismissed the respondents. The workers appealed to the Appeals Board which set aside their dismissal and reinstated them on the ground that the disciplinary committee had been improperly constituted. Standard Chartered Bank appealed to the Tribunal which confirmed the decision of the Appeals Board on the same ground. On appeal to the Supreme Court MUCHECHETERE JA agreed that the proceedings should be set aside on the same ground. The court however ruled that the workers were not entitled to automatic reinstatement. Their cases were remitted for fresh hearing. At p 5 of the cyclostyled judgment the learned judge had this to say:-

“This is because reinstating the respondent in the circumstances implies a finding that the respondents were innocent of the charges of misconduct against them by the hearing officers. It should be borne in mind that the respondents in their appeal to the Appeals Board were mainly challenging the procedural irregularities in the hearings before the disciplinary committee. The merits of the cases were not really challenged. The respondents in the appeal to the disciplinary committees raised the merits and other related issues and a properly constituted disciplinary committee was to have considered these. A setting aside of the proceedings of the disciplinary committees should therefore lead the parties to the same position before the hearing in the disciplinary committees – appeals before a properly constituted disciplinary committee.”

I agree with this approach. 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. There was no enquiry into the merits of the respondents’ conduct. The disciplinary proceedings were flawed. New disciplinary proceedings should have been instituted as was ordered by the General Manager of the appellant. I do not agree that the General Manager did not have the power to order a new enquiry. The General Manager was vested with the power to hear the appeal. Remitting a matter of a hearing de novo is inherent in the power to hear an appeal. Failure to specifically provide for remission of a matter does not, in my view, mean that the General Manager does not have such a power. The code does not specifically provide that the General Manager can allow or dismiss such an appeal. To then argue that he does not have the power to allow or dismiss the appeal is nonsensical. Remitting a matter for re-hearing is a power that is inherently associated with the power to hear an appeal. I accordingly hold that the General Manager of the appellant had such power.

In concluding that the respondents were to be reinstated the learned judge in the court a quo reasoned as follows:-

“The respondents did not dispute that the applicants are still employees of the second respondent. They agree that their dismissal from the employment of Air Zimbabwe was set aside by Chingwena. It is not necessary therefore to issue a declaratur to the effect that they are still employees. It is necessary, however, to issue a declaratur to the effect that they are entitled to their salaries and benefits from 16 November 2001, the date of their dismissal by the disciplinary committee.

It is declared that each applicant is entitled to his or her salary and other employment benefits with effect from 16 November 2001.

It is ordered that the applicants’ costs be paid by the respondents jointly and severally, the one paying the other to be absolved.”

The position that the respondents occupied before their dismissal is not disputed. They were on suspension awaiting the hearing by the disciplinary committee. The letter of suspension makes that very clear. The disciplinary committee then dismissed the respondents. This is where the court a quo went into error. The respondents were on suspension prior to the disciplinary proceedings. The respondents cannot be reinstated without first setting aside the suspension. The General Manager’s determination did not set aside the suspension. The court a quo did not set aside the suspension. It merely observed, incorrectly, that the code did not provide for suspension without pay. The code does provide for suspension without pay although the precise circumstances are not set out, see p 217 of the record.

If the respondents’ cause of action was that their suspension was unlawful that is what they should have pleaded in the court application. Their case was that they were entitled to reinstatement following the General Manager’s determination. The General Manager’s determination did not set aside the suspension.

It was also argued that the time limits set out in the code would not be met if a trial de novo were to be ordered.

I am not persuaded by this argument. In my view the time limit set out in the code would apply to the recommenced proceedings which have to be completed within the time frame set out in the Code.

Finally, the learned judge in the court a quo was bound by the decision of this Court in the Standard Chartered Bank of Zimbabwe Limited case, supra, and should have ordered that the respondents revert to the status quo ante which was suspension pending the disciplinary hearing.

Accordingly the appeal is allowed with costs. The order of the court a quo is set aside and the following order is substituted:-

“The application is dismissed with costs.”

ZIYAMBI JA: I agree

MALABA JA: I agree

Sawyer & Mkushi, appellant's legal practitioners

Gill Godlonton & Gerrans, respondent's legal practitioners