SABLE CHEMICAL INDUSTRIES LTD v EASTERBROOK 2010 (2) ZLR 342 (S)

Flynote

Costs - de bonis propriis - failure of legal practitioner to act professionally

Employment - Labour Court - appeal from - question of law - what constitutes

Employment - code of conduct - disciplinary proceedings under - nature of such proceedings - proceedings intended to be flexible and less formal than in court of law - hearing must be fair and audi alteram partem rule must be observed - need for flexibility must not be at the expense of the principles of fairness

Employment-code of conduct - disciplinary proceedings under - disciplinary committee - whether properly constituted - whether employee waived right to challenge composition of committee - whether composition of committee amount to substantial compliance with code of conduct-all questions of fact, not law

Word and phrases - "question of law" - meaning - phrase used in three distinct though related senses-serious misdirection on the facts amounts to a misdirection in law - question of fact - examples of

Headnote

The appellant company appealed against a judgment of the Labour Court, which had allowed an appeal by the respondent seeking an order setting aside his dismissal from employment by the appellant. The Labour Court had found, firstly, that the disciplinary hearing committee had not been properly constituted. Secondly, the Labour Court found that, even on the merits, the alleged offences had not been proved and that at most what was proved was poor or lack of supervision which, under the code of conduct, called for a severe warning or final written warning. The appellant argued that these decisions were wrong in law; in addition, it was argued that the respondent, by attending the disciplinary committee's hearing, had waived his right to impeach the composition of the committee; and that the Labour Court erred in law by ignoring the fact that it was impossible to strictly comply with the provisions of the code owing to the seniority of the respondent and that the disciplinary committee as constituted amounted to substantial compliance with the code of conduct.

Held, that, in labour matters, proceedings before a disciplinary hearing committee established under a code of conduct are intended to be flexible and less formal than proceedings in a court of law. While there is a need for flexibility in these circumstances, there is also a need for a fair hearing and in particular for the audi alteram partem rule to be observed. Labour tribunals, under the guise of flexibility, cannot violate the principles of fairness and do so with impunity.

Held, further, that the term "question of law" is used in three distinct, though related, senses. First, it means a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter. Second, it means a question as to what the law is and, third, it means any question which is within the province of the judge instead of the jury. It is also settled that a serious misdirection on the facts amounts to a misdirection in law, as the giving of reasons that are bad in law constitutes a failure to hear and determine according to law.

Held, further, that whether or not a disciplinary committee, established under a labour code of conduct, is improperly constituted is a question of fact, as is whether an employee, being the subject of a disciplinary hearing, consented to the composition of a committee and thus waived his rights to impeach its composition. Waiver is a question of fact and not law.

Held, further, that none of the persons who were supposed to constitute the disciplinary committee in terms of the appellant's code of conduct were involved in the deliberations of the committee. Instead, the appellant's acting general manager, whose participation in the disciplinary proceedings was not provided for in the code of conduct, presided over the inquiry on his own. The finding that the disciplinary committee was not properly constituted was a matter of fact and not law. The result was that the proceedings were a nullity.

Held, further, that legal practitioners, being officers of the court, are required to act professionally. Failure to do so may, in appropriate cases, result in costs being borne by the legal practitioner de bonis propriis.