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