Judgment
No. SC 43/04
Civil
Appeal No. 347/02
WATTLE
COMPANY, PINE DIVISION v MARK MARWISA
AND SIXTY-TWO OTHERS
SUPREME
COURT OF ZIMBABWE
SANDURA JA,
CHEDA JA & MALABA JA
HARARE,
MAY 10 & JULY 20, 2004
R
M Fitches, for the
appellant
R
T Maganga, for the
respondents
SANDURA JA:
This is an appeal against a judgment of the Labour Relations
Tribunal (now the Labour Court) (the Tribunal)
which set aside
the respondents dismissal by the appellant and ordered their
reinstatement as the appellants employees.
The
relevant facts are as follows. The respondents were employed by the
appellant. In August 2000 they resorted to a collective
job action
in order to redress their grievances, and were away from work from
19 August to 5 September 2000.
Having
refused or failed to return to work when called upon to do so, the
respondents were charged with wilful disobedience to a
lawful order
and being absent from work for more than five days without authority.
Disciplinary hearings were subsequently held
and all the
respondents were found guilty and dismissed.
Dissatisfied
with that result, the respondents appealed to the National Employment
Council for the Agricultural Industry, but the
appeal was dismissed.
They then appealed to the Tribunal and were successful. The
Tribunal ordered that they be reinstated without
loss of salary and
benefits with effect from the date of dismissal, and that if
reinstatement were no longer possible they be paid
damages in lieu of
reinstatement.
Aggrieved
by that decision, the appellant appealed to this Court.
The first issue which I wish to
deal with is the point in
limine raised by
counsel for the appellant. The point was that the appeal record
only refers to one respondent, i.e. Mark Marwisa,
and that the
other sixty-two respondents were therefore not properly before this
Court. I respectfully disagree for two reasons.
The
first reason is that the record of the proceedings in the Tribunal
clearly indicates that when the matter came before the Tribunal
the
appellants (now the respondents) were Mark Marwisa and sixty-two
others. And the second reason is that the legal practitioners
who
represented the parties in the Tribunal agreed that the appellants
(now the respondents) were Mark Marwisa and sixty-two
others.
That is why when counsel who appeared for the sixty-three appellants
in the Tribunal sought leave to file a full list of
the sixty-three
appellants (now the respondents) Mr Donagher, who appeared for
the respondent (now the appellant) said the following:
I
have no objections to that, Your Honour. I think as between the
appellants and the respondent we know who is appealing, and it
is
just a matter of formality to have the names reflected on the
record.
That,
in my view, was a clear admission that all the sixty-three appellants
(now the respondents) were properly before the Tribunal.
In the
circumstances, there can be no basis for the submission that only one
respondent is properly before this Court.
I
now wish to deal with the main issue in this appeal, which is whether
it was proper for the Tribunal to dispose of the appeal
before it on
the basis of the finding that the disciplinary proceedings were
vitiated by serious procedural irregularities.
The
most serious irregularity identified by the Tribunal was that the
five disciplinary committees which conducted the disciplinary
hearings were not properly constituted because the respondents were
not properly represented. Although the relevant Code of Conduct
provided that the respondents were to be represented by workers, they
were represented by supervisors chosen by the appellant.
The
respondents interests were, therefore, not protected.
In
the circumstances, I agree with the Tribunals finding that the
irregularity was so serious that it vitiated the disciplinary
hearings.
However, this Court has
previously stated that it is undesirable to determine labour
relations matters on the basis of procedural
irregularities. Thus,
in Dalny Mine v Banda
1999 (1) ZLR 220 (S) at 221 B-D, McNALLY JA said:
As
a general rule it seems to me undesirable that labour relations
matters should be decided on the basis of procedural irregularities.
By this, I do not mean that such irregularities should be ignored.
I mean that the procedural irregularities should be put right.
This
can be done in one of two ways:
(a) by remitting the matter for
hearing de novo
and in a procedurally correct manner;
(b) by the Tribunal hearing the
evidence de novo.
In
regard to the first of these alternatives, this Court has previously
said that:
The
Tribunal is not given a discretion whether to remit or not. Once it
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.
See Air
Zimbabwe Corp v Mlambo
1997 (1) ZLR 220 (S) at 223F
.
In
the present case, there is nothing to indicate that the Tribunal
could not come to a conclusion on the merits. Although the
record
of the disciplinary hearings was not before the Tribunal,
Mr Donagher, who appeared for the respondent (now the appellant)
informed the Tribunal that he had a complete record of the
disciplinary proceedings and could make it available to the Tribunal
if
the Tribunal required it.
Unfortunately,
the record of the disciplinary proceedings is not part of the record
before us. This Court is not, therefore, in
a position to determine
the appeal on the merits and must remit the matter to the Labour
Court for that purpose. It will be necessary
for the Labour Court
to examine the reasons for the respondents failure to return to
work when called upon to do so before determining
the matter.
In
the circumstances, the following order is made
1. The appeal is allowed with no
order as to costs.
2. The order of the Labour
Relations Tribunal is set aside.
3. The matter is remitted to the
Labour Court for a determination on the merits.
CHEDA
JA: I agree.
MALABA
JA: I agree.
Henning, Lock, Donagher &
Winter, appellant's
legal practitioners
Sangarwe
& Associates,
respondents' legal practitioners
