Andrew Mataruse v E. Mundenda N.O and Parirenyatwa Group of Hospitals and Minister of Health and Child Care

The applicant was employed by the second respondent (Parirenyatwa Group of Hospitals) on an indefinite contract. On 20 September 2016, he was appointed as a full-time lecturer at the University of Zimbabwe Medical School. The first respondent, acting as Director of Operations, issued a memorandum dated 7 February 2017 alleging that the applicant was "double dipping" by holding two full-time positions. The respondents instructed the applicant to resign retrospectively from 19 September 2016 and to repay remuneration received from 20 September 2016. The applicant's salary was unilaterally ceased. The applicant did not consent to this arrangement. The respondents admitted they had disciplinary procedures for misconduct but chose not to follow them, saying it was their prerogative. The applicant was employed under the Health Service Act and not the Labour Act.

• Whether the applicant properly stated grounds of review in accordance with Rule 257
• Whether the High Court had jurisdiction over this matter given it involved an employment dispute
• Whether the first respondent was properly cited as a party in his official capacity
• Whether the third and fourth respondents were properly cited
• Whether the respondents were required to follow disciplinary procedures before unilaterally ceasing the applicant's salary and demanding retrospective resignation
• Whether the applicant was required to exhaust domestic remedies by appealing to the Board under section 17 of the Health Services Act

1. The decision of the first respondent communicated through the Memorandum of 7 February 2017 was set aside. 2. The decision to unilaterally cease the applicant's salary was set aside. 3. The matter was referred back to the second respondent to institute disciplinary proceedings against the applicant for the alleged misconduct. 4. The first and second respondents were ordered to pay costs of suit jointly and severally. The third and fourth respondents were struck off as parties.

Where an employer has established disciplinary procedures and alleges employee misconduct, the employer cannot unilaterally withdraw employment benefits or demand retrospective resignation without the employee's consent unless disciplinary procedures are properly invoked. Following disciplinary procedures becomes imperative (not merely a matter of choice) when an employee does not consent to the employer's proposed course of action, as these procedures provide the employee with the opportunity to be heard in defence. The right to appeal to a Board under section 17 of the Health Services Act only arises where misconduct proceedings have been conducted; thus, where no disciplinary proceedings have been held, there are no domestic remedies to exhaust.

The court observed that the respondents had an arguable case on the merits regarding the conflict inherent in the applicant holding two full-time positions, noting that it would not be possible for the applicant to be available for both jobs simultaneously - if lecturing at the Medical School, he could not simultaneously respond to calls from the Stroke Unit and Neurology Clinic. The court distinguished this from a part-time arrangement where there might be no conflict. The court also commented that while stating grounds of review in the application itself is "more appropriate" than stating them only in the founding affidavit, the latter approach is permissible where it causes no prejudice to the respondent.

This case establishes important principles regarding procedural fairness in administrative employment decisions in Zimbabwe's public health sector. It confirms that statutory bodies cannot bypass established disciplinary procedures to unilaterally terminate employment benefits without employee consent, even where misconduct may be established. The case also clarifies the High Court's broad review jurisdiction over administrative bodies under the Constitution and High Court Act, and confirms that the requirement to exhaust internal remedies only applies where proper disciplinary procedures have been followed. It provides guidance on pleading requirements for review applications, holding that while grounds should ideally be stated in the application itself, stating them in the founding affidavit may be sufficient where no prejudice results.