No. SC 48/04
Appeal No. 77/02
MARAMBA PFUNGWE ZVATAIDA RURAL DISTRICT COUNCIL v (1)
EDWIN MAPURISA CHIGODO & (2) H SIBANDA
COURT OF ZIMBABWE
JA, ZIYAMBI JA & GWAUNZA JA
JUNE 7 2004 & SEPTEMBER 7, 2004
R Tsivama, for the
Zhou, for the
JA: The appellant brought an application before a Labour Relations
Officer, for authority to dismiss the first respondent
employ. The Labour Relations officers ruling was to the effect
(a) the application by the
appellant to dismiss the first respondent was prescribed and
that the appellant reinstate the
first respondent to his former employment with the appellant,
failing which he (first respondent)
was to be paid damages.
The appellant was dissatisfied
with the decision of the Labour Relations Officer, as well as the way
the proceedings leading to it
were conducted. It therefore filed an
application with the High Court, for a review of such proceedings and
decision. The High Court
dismissed the application for review,
prompting the appellant to appeal to this Court.
following facts are not disputed:
The appellant suspended the first
respondent, who was its Chief Executive Officer, from its employ with
effect from 22 July 1996.
On 20 November 1996, the appellants
legal practitioners addressed a letter to the Labour Relations
Officer which read in part
the period of employment he (first respondent) unlawfully converted
monies amounting to at least $3 000 to his own use.
As a result of this
misconduct our client suspended him without pay pending the outcome
of an application to you to dismiss him.
this letter we hereby apply on behalf of our client, for a
determination seeking to dismiss him
Labour Relations Officer who presided over the hearing of the matter
on 12 May 1997, proceeded on the basis that the first respondents
dismissal was based on the single allegation of theft as outlined in
this letter. He dismissed the application and ordered that
first Respondent be reinstated without loss of benefits. This was
on 26 June 1997.
22 July 1997 the appellant filed an appeal against this decision, to
a Senior Labour Relations Officer. Before the appeal was
on 19 September, 1997, the appellants legal practitioner wrote a
letter to the Labour Relations Officer which read
in part as follows:
client has reasons to believe that Mr Chigodo has committed acts of
misconduct which are inconsistent with his contract of employment
which client regard as sufficiently serious to warrant his dismissal.
The following are clients allegations of misconduct
form the basis of this application
letter then went on to list ten acts of misconduct being alleged
against the first respondent. In the last paragraph of the
the appellant sought permission to dismiss the first respondent.
The appeal was heard by a senior
labour relations officer on 11 August, 1998. On this occasion, the
letter dated 19 September 1997,
from the appellants legal
practitioners, was on file. All parties were agreed that the senior
labour relations officer had no
authority, according to the Labour
Relations Act [Chapter
to re-hear the matter taking into account the new charges outlined
in the letter of 19 September 1997. The senior labour relations
officer then remitted the matter to a different labour relations
officer, for further investigations and a determination based on
allegations in that letter. This was on 8 December 1998.
matter was then heard before a different labour relations officer on
17 May 1999.
In her report entitled Hearing
Script Report the labour relations officer recorded that Mr
the legal practitioner for the appellant, submitted that the hearing
was based on the application of 19 September 1997. She also
recorded that Mr Muvingi,
who appeared for the first respondent, then raised the point (in
effect, a special plea) that the matter was prescribed since it
referred to the Labour Relations Officer fourteen (14) months after
the first respondent was suspended. That period far exceeded
180 days within which the Labour Relations Act in s 94(1)(b) required
such disputes to be referred to the Labour Relations Officer.
The labour relations officer upheld the special plea and made the
order already referred to, which the appellant unsuccessfully
the High Court on review.
The appellant averred that both
a copy of the letter suspending the first respondent, and a document
listing the various charges
against him, were submitted to the Labour
Relations Office before the end of July, 1996. The first respondent
the assertion that a document listing the charges
had been so submitted. While conceding there was nothing on record
but the word
of its Chief Executive Officer that he himself had so
submitted the two documents, the appellant argued that this action
for the purpose of an application for authority to dismiss
the first respondent.
Whatever the merits of this
argument might have been, the learned judge in the court a
quo was, in any case,
not satisfied that the appellant had proved that a document listing
the various acts of misconduct that were being
levelled against the
first respondent, had been submitted to a labour relations officer
together with a copy of his letter of suspension
in July 1996.
Consequently, the learned judge found, no application to dismiss the
first respondent on the ground of multiple charges
had been filed
before the end of July, 1996.
I agree with this finding.
The evidence on record tends to
disprove rather than prove, that the document in question had been
submitted to the labour relations
officer in the manner indicated.
Firstly, as the learned judge
correctly pointed out, the letter of suspension stated emphatically
that charges against the first respondent,
emanating from the audit
report, would only be preferred against the respondent after the
conclusion of investigations yet to be
carried out. This conveyed
the impression that at the time of suspension, the appellant was yet
to come up with a full list of
charges against the first respondent.
In other words, the document listing the charges was not yet in
existence and therefore could
not have been submitted together with
the letter of suspension.
Secondly, the letter itself made
no mention of the purported Annexure to it, said to have been sent
together with the letter.
Thirdly, the labour relations
officer who first heard the matter on 12 May 1997 indicated that
according to the papers on record,
authority to dismiss the first
respondent was being sought on the basis of a single allegation of
theft. This was in reference
to the letter of 20 November 1996,
from the appellants legal practitioners. Hence her determination
of the matter on the basis
of that one charge of theft.
Fourthly, the letter from the
appellants legal practitioner, dated 20 November 1996, without
making reference to earlier communication
on the matter or its
referral to the Labour Relations Office, sought permission to dismiss
the first respondent on the basis of the
specific allegation of
having converted $3000 to his own use. The appellants Chief
Executive Officer asserts, without substantiation
or a supporting
affidavit from the legal practitioner concerned, that this letter was
written in error. He does not explain how
the error could have
arisen if, as submitted by him, the appellant's legal practitioners
had been furnished with the full list of
the allegations against the
first appellant, in July 1996.
In the light of this evidence, it
is clear the probabilities favour the finding, correctly reached by
the learned judge in the court
quo, that before the
end of July, 1996, no document listing multiple charges against, and
therefore no application to dismiss, the first
respondent, had been
submitted to the Labour Relations Officer.
The first respondent asserted in
his opposing affidavit that he never received the full list of
allegations said to have been attached
to his letter of suspension.
However, a letter written by his lawyers on 23 September 1996, which
made reference to the document
containing the detailed acts of
misconduct alleged against him, casts doubt on the veracity of this
assertion. The first respondents
legal practitioners could only
have received such document from him. It should be noted that the
letter was written before the
appellants legal practitioners wrote
their letter of 20 November 1996. It can therefore safely be
assumed that the first respondent
fully appreciated the fact that he
was due to face more allegations or charges of misconduct than the
single one of theft mentioned
in the letter of 20 November 1996.
This, however, does not alter the crucial fact that it has not been
established by the appellant
that the document detailing the numerous
charges the first respondent was to face, was submitted to the Labour
Relations Office together
with the letter of suspension, in July
The Labour Relations Officer
therefore had no reason to determine the matter on the basis of
allegations that had not been given as
grounds for seeking authority
to dismiss the first respondent.
An appreciation of the
consequences of this oversight, if such it was, must have influenced
the appellants legal practitioners
to write the letter of 19
September 1997 which contained a detailed list of the allegations
against the first respondent. The legal
practitioner did not say in
that letter that it was a follow up, an addition or in any way
connected to, the letter of 20 November
1996. The letter of 19
September, 1997 was formally before the court on the date of the
hearing of the appeal before the senior
labour relations officer, on
11 August, 1998.
It is recorded that both parties
acknowledged the fact that the senior labour relations officer whose
jurisdiction in the matter was
not original, but appellate, could not
take into account the new evidence and conduct what would have
amounted to a re-hearing of
the matter. He correctly sent the
matter back to a labour relations officer for a hearing based on the
detailed allegations that
had not been put before the labour
relations officer who had first heard the matter.
these circumstances, the labour relations officer to whom the matter
was remitted took the view that the proceedings were
to be conducted
on the basis that the matter was referred to her by the appellant
through the letter of 19 September 1997. She determined
prescription was to be reckoned up to this date, from the date the
first respondent was suspended that is, 8 July, 1996, (which
the date by which it could be said the appellant first became aware
of the misconduct alleged).
A period of 14
months separated the two dates and was therefore well beyond the 180
The learned judge in the court a
quo found there was no irregularity in the conduct of the proceedings
before the labour relations
officer, and the decision based on those
proceedings. She rejected the appellants argument that the
consideration by the labour
relations officer, of the issue of
prescription, amounted to an improper review of the decision of the
senior labour relations officer
who had remitted the matter for a
re-hearing. The learned judge noted as follows on page 8 of the
matter was resolved by the labour relations officer on a point of law
at a late stage, which
point of law the labour relations officer could not have disregarded
as it affected the validity of the proceedings
as a whole
(her) conduct in so doing cannot, in my view, be found to have
amounted to an exercise of review, or appellate
the question of prescription, the learned judge had this to say,
again on p 8 of the judgment:
my reading of the record of proceedings
the first record of the
notification of additional allegations (i.e. 19 September
after the expiry of 180 days from the date on which the acts or
omissions upon which applicant sought to rely occurred
and also the
180 days from the date on which applicant became aware of such acts
find the learned judges reasoning and conclusions to be sound.
Consequently her finding that there was no irregularity in
in which the proceedings before the labour relations officer were
conducted, is not to be faulted.
appeal must, in the result, fail.
is accordingly ordered as follows:
appeal be and is hereby dismissed with costs.
SANDURA JA: I
JA: I agree.
Sawyer & Mkushi,
appellants legal practitioners
respondents legal practitioners