Dealing with gross irregularities

fatal and the person relying on it must show that he or she suffered prejudice.
There are principles that were enunciated by Tindall J.A in the matter of Jockey Club of South Africa and Others versus Feldman 1942 AD 340 AT 359.
These were quoted with approval by Sandura J.A (as he was then) in the case of Tichawana Nyahuma versus Barclays Bank Private Limited S.C 67/05 at page 4 of the cyclo-styled judgement, and aptly read, “I am not prepared to accept, as a rule applicable to all cases of irregularity in the proceedings of private tribunals, the proposition that an irregularity which is calculated to prejudice a party entitles him to have the proceedings set aside.
“No doubt such irregularity prima facie gives him such right, but if it is clear that in the particular case the irregularity caused such party no prejudice, in my judgement he is not so entitled.”
CMED Private Limited had employed Phineas Muchandla for eight years. He had been acting supervisor for only two days when he was brought before the disciplinary committee for gross unsatisfactory work performance or incompetence.
This was according to Section 18:2:2, Category 4 of the CMED Code of Conduct.
He was found guilty and dismissed from employment.
Muchandla was not successful in all his internal appeals before he approached the Labour Court on appeal and seeking review of the proceedings.
The allegations, which gave rise to the charges, came while he was the person in charge as acting supervisor at Workington Depot on October 21 and 22, 2010.
Muchandla accepted from the fuel attendants recycled coupons for issues made on October 21, 2010 and balanced them with coupons used the following day.
The coupons amounted to US$2 100 for 2 000 litres of diesel.
In his appeal, Muchandla cited gross irregularity in the proceedings.
He argued that he was not given adequate notice before the initial hearing and that he was denied the opportunity to call witnesses.
Muchandla further argued that the managing director’s appeal results were not issued by him but by the chairperson of the initial disciplinary hearing panel.
He submitted that the onus of proof was shifted to him, while the verdict was pre-determined before the matter was concluded.
Muchandla also cited gross irregularity in the decision that it was not supported by evidence, while the penalty was harsh and arbitrary.
He said that the cause of bias, malice or corruption on part of CMED was that there was selective punishment as the people caught recycling the coupons were not disciplined.
It is common cause that the alleged offence surfaced on October 22, 2010.
Investigations were then commenced and CMED submitted a hand written report.
It is also common cause that the notice for the hearing was issued on November 12, 2010 for the hearing to he held five days later.
Muchandla did not challenge CMED’s submission that he was served with the notice on November 15, 2010, only two days before the hearing.
The question, however, is was this inadequate notice so fatal and did Muchandla suffer prejudice as a result?
The answer should be in the negative. Muchandla was aware of the pending allegations as far back as October when the offence surfaced.
He submitted a report on the incident and had two days to prepare.
In that regard, the irregularity was not so fatal and Muchandla did not suffer any prejudice.
This irregularity cannot therefore vitiate the proceedings.
Nowhere in the proceedings did it show that Muchandla requested to call his witnesses and was denied.
Even in his grounds of appeal to the general manager, he did not raise this issue of witnesses.
If Muchandla really wanted to call witnesses, he could have utilised the opportunity when the committee asked him.
Further, he did not raise this issue before the Board of Inquiry at the onset of the hearing.
Neither did Muchandla raise these issues when he was asked whether the board was fair to him. This ground for review is baseless.
It is indisputable and was correctly conceded by Muchandla that the managing director did not issue the notification of results of appeal.
The question that arises is, in view of this anomaly, did the managing director hear and determine Muchandla’s appeal?
CMED was at pains trying to explain. In the absence of a record of proceedings held before the managing director as indicated on the form, it is very difficult in the circumstances to prove it took place.
It should be pointed out that CMED’s appeal structures seemed not to properly apply their minds to the appeals before them.
There is no record of proceedings of the appeal by Manager Fuel, nor reasons for the decision.
The same applies to the Board of Enquiry. There are no reasons for the determination.
These anomalies in the appeal procedures are so fatal that they vitiate those “proceedings.”
The Board of Inquiry held proceedings and there are no reasons for the verdict that was arrived at.
This makes it difficult to decide whether the board properly applied its mind to the facts before arriving at the decision that it did.
Muchandla was charged with gross unsatisfactory work performance/incompetence in that he accepted recycled coupons from fuel attendants.
From the record, it is not in dispute that he received the coupons and came to know about it the next day.
From the record, it is also clear that the Board of Inquiry digressed from the real issue and dwelt on an issue, which Muchandla was not charged with.
Further, the board called  a witness — Bhiza — who gave evidence and was questioned on an issue totally different from the charges Muchandla was facing.
It is no doubt that CMED’s charge did not arise out of the disappearance of the coupons, failure to reconcile them, selling fuel in drums, locking the pump meter nor being involved in the recycling of coupons.
In the absence of reasons as to how the board arrived at its decision of guilty, it is an inescapable conclusion that the board was swayed by extrinsic issues, that were not levelled against Muchandla.
If the board had properly applied its mind to the facts, it would not have arrived at the decision that it did.
Muchandla would not have been found guilty of gross unsatisfactory work performance, but ordinary negligence.
It is also common cause that he had been acting supervisor for only two days when the offence surfaced.
This means that he had failed in his duty as supervisor for only two days.
It was not in dispute that the eight years he was in CMED’s employ he had a clean record.
Consequently, Labour Court senior president Ms Gladys Mhuri found the charge of gross unsatisfactory work performance was not proven, setting aside the verdict and penalty.
Ms Mhuri ordered CMED to reinstate Muchandla to his original position (not acting supervisor) without loss of salary and benefits, or pay him damages.