MINERALS MARKETING CORP OF ZIMBABWE v MAZVIMAVI 1995 (2) ZLR 353 (S)

Flynote

Employment — appeals under Labour Relations Act [Chapter 28:01] — appeal against determination of disciplinary committee under disciplinary code — Labour Relations Tribunal — powers on appeal — do not include powers of review — Labour Relations Act — ss 97 and 101

Administrative law — natural justice — disciplinary committee set up by D employer — required to observe rules of natural justice — right to legal representation — right dependent on provisions of employees' disciplinary code

Administrative law — fair hearing — disciplinary committee — irregularity in conduct of hearing — irregularity calculated to prejudice person being disciplined — fatal unless shown not to have caused any prejudice

Headnote

The respondent was an employee of the appellant Corporation. The Corporation's human resources manager, Mr Sibanda, accused the respondent of various disciplinary offences. The accusations were heard by a disciplinary committee established under the Corporation's disciplinary code. The committee found him guilty and recommended his dismissal, which was carried out by the general manager. The respondent appealed to the Labour Relations tribunal under s 101 of the Labour Relations Act. The Tribunal handed down a judgment, in which it expressed the opinion that it had general powers of review akin to those of the High Court and declared that the disciplinary committee had committed a series of irregularities in the hearing. These included (a) a denial of the respondent's request to be legally represented; (b) the improper composition of the committee and (c) allowing Mr Sibanda to attend the hearing and take part in the proceedings. The Tribunal set aside the proceedings of the committee and ordered the respondent's reinstatement. The Corporation appealed to the Supreme Court.

Held, that a person aggrieved either by a determination made in his case under a code or by the conduct of any proceedings in terms of a code may appeal against such determination or conduct to the Tribunal. The Tribunal is empowered to confirm the proceedings appealed against, remit the matter for determination by the person or body responsible for enforcing the code, or substitute its own determination for that appealed against. The Act gave no power of review in this situation, whereas, in an appeal against a decision of a labour relation officer, the Act specifically gave the appellant the right to seek a review. It was clear, therefore, that in this case the Tribunal had no general powers of review.

Held, further, that although the Tribunal had no powers of review, the disciplinary committee was still obliged to observe the rules of natural justice, though any breach of those rules would require an aggrieved person to seek relief by review in the High Court. Held, further, that where a disciplinary code governs the conduct of employees, the right to be represented at an enquiry depends on the provisions of the code itself. The Act requires that a code of conduct must grant a right to be heard, and the Corporation's code provided for representation by the workers' committee. As no mention was made in the code of legal representation, no right to representation, other than by the workers' committee, was intended to be conferred.

Held, further, that the composition of the disciplinary committee was set out by the code; this did not include the human resources manager. While Mr Sibanda was not present as a member of the committee, nor was he present merely as an observer. Allowing him to be present other than a silent observer went beyond the parameters of the code. This was a procedural irregularity which, if not vitiating the proceedings, rendered them voidable at the instance of the respondent. The irregularity was calculated to prejudice the respondent and was not shown by the Corporation not to have caused any prejudice.

Held, therefore, that although the other "irregularities" found by the Tribunal were not sufficient to make the proceedings of the committee a nullity, the irregularity caused by Mr Sibanda's presence and participation was ground for setting aside the committee's proceedings. For this reason alone, the Tribunal's order would be upheld.

Appeal dismissed.