The applicant was employed by the respondent as an assistant bookkeeper. On 8 November 2000, employees went on strike and the applicant left her station for two days. On 10 November 2000, she was summoned by Chishanga and suspended without salary or benefits. On 17 November 2000, a disciplinary hearing was held presided over by Chishanga, with Mashava also present (who gave evidence and questioned the applicant). On 23 November 2000, Chishanga found her guilty of misconduct and recommended dismissal. On the same day, the respondent's Finance and Retail Manager terminated her employment with effect from 8 November 2000. The applicant filed an appeal which had not been determined at the time of the hearing. The applicant sought a declaratory order that the proceedings and dismissal were null and void, arguing primarily that Chishanga was not properly appointed as a 'Designated Officer' in writing after consultation with the Works Council as required by the Code of Conduct for the Commercial Sectors of Zimbabwe.
1. The misconduct proceedings against the applicant in terms of the Code of Conduct of the Commercial Sectors of Zimbabwe and the applicant's discharge from employment are declared null and void. 2. The respondent shall pay the costs of the application.
A designated officer under a code of conduct must be appointed in writing after consultation with the Works Council as required by the applicable code. Failure to comply with this requirement constitutes a jurisdictional defect, not merely a procedural irregularity. Any act performed by a person not properly appointed as a designated officer is null and void ab initio. The burden of proving proper appointment in accordance with the code rests on the employer, not on the employee challenging the validity of the appointment. An act done without jurisdiction is a complete nullity and automatically void without need for a court order, though it may be convenient to have a court declare it so. Proceedings commenced in the High Court before the Labour Relations Act Amendment came into effect could continue in the High Court under the transitional provisions of section 47(5) of the amendment.
The court observed that procedural irregularities such as the unauthorized presence and participation of the Creditors Supervisor at the disciplinary hearing, while potentially vitiating the proceedings, would render them voidable rather than void, and such irregularities could only be addressed through a proper review application under Order 33 Rule 259. The court also noted that relief in the form of payment of salary, benefits and bonuses is more appropriately granted in review proceedings resulting in reinstatement, rather than in applications for declaratory orders. The court commented on the nature of declaratory orders versus review applications, noting that applications aimed at bringing alleged procedural irregularities under scrutiny should properly be brought as reviews under Order 33 of the High Court Rules.
This case is significant in Zimbabwean labour law for establishing the critical importance of strict compliance with procedural requirements for appointing designated officers under codes of conduct. It reinforces the principle that jurisdictional defects (as opposed to procedural irregularities) render proceedings null and void ab initio, not merely voidable. The case also clarifies the distinction between declaratory relief and review applications, and addresses the transitional jurisdiction of the High Court following the creation of the Labour Court. It establishes that the burden of proving proper appointment of designated officers rests on the employer, not the employee challenging the appointment. The case demonstrates that procedural requirements in employment codes are not merely formalities but jurisdictional prerequisites.