Stella Nhari v Zimbabwe Allied Banking Group

The appellant was employed by Zimbabwe Allied Banking Group as Head of the Compliance Section, reporting directly to the CEO. In November 2007, a new reporting structure was introduced renaming her position to General Manager, Compliance, and requiring her to report to the Head of Corporate and Legal Services Division, though her grade, salary and benefits remained unchanged. The appellant was unhappy with this change and continued to question the new structure despite directives from the CEO. On 6 June 2008, she was suspended without salary or benefits and charged with misconduct. A disciplinary hearing was held on 20 June 2008. On 30 June 2008, the appellant filed an urgent application to set aside her suspension on grounds that the respondent had failed to conclude the matter within the 14 days prescribed in the Labour Regulations. On 14 August 2008, the Labour Court granted a default judgment setting aside the suspension and ordering reinstatement. Despite this order, the disciplinary committee proceeded on 18 July 2008 to dismiss the appellant. In October 2008, the appellant filed an application for review of the dismissal decision, which the Labour Court dismissed with costs.

• Whether the Labour Court misdirected itself in failing to find bias on the part of the chairman of the disciplinary committee
• Whether the first charge against the appellant had been proved
• What effect the Labour Court order setting aside the suspension and ordering reinstatement had on the disciplinary proceedings which resulted in dismissal

The appeal was allowed with costs. The judgment of the Labour Court was set aside and substituted with an order that: (1) The application is allowed with costs; (2) The decision of the disciplinary committee of the respondent of 18 July 2008 terminating the employment of the applicant is set aside.

Where a suspension of an employee has been set aside by a court order which remains extant, any verdict or penalty imposed pursuant to any allegation made as part of the reason for the suspension must fall away. The suspension and the misconduct alleged against an employee are intertwined - there can be no suspension where there is no misconduct alleged against an employee. Consequently, proceedings that followed such a suspension cannot stand on their own, as one cannot put something on nothing as it will collapse. The legal principle is that disciplinary proceedings are dependent upon the validity of the suspension that gave rise to them.

The Court made obiter observations regarding the fourteen (14) day requirement in Section 6(2) of the Labour Regulations, noting that whether the Labour Court was correct in setting aside the suspension based on non-compliance with this time limit was not an issue before it. The Court drew attention to the decisions in Nyoni v Secretary for Public Service Labour and Social Welfare & Anor 1997(2) ZLR 516 and Posts and Telecommunications Corporation v Zvenyika Chizema SC 108/04, which suggest that delay alone cannot justify reinstatement and that delay merely gives the aggrieved party the right to a remedy of mandamus to enforce compliance with time limits. The Court also noted (without deciding) the question of whether the fourteen (14) day requirement applies to the entire proceedings or only to the investigations. Further, the Court commented that the default judgment could have been rescinded under s 92(c)(i) of the Labour Act, and that both the respondent and the court a quo appeared oblivious to the existence of the reinstatement order.

This case is significant in Zimbabwean labour law (and of comparative interest to South African jurisprudence) as it establishes the fundamental principle that disciplinary proceedings following from a suspension cannot survive where the suspension itself has been set aside by a court order. The judgment reinforces the procedural requirements for lawful suspensions under employment regulations and emphasizes that employers and courts must give effect to extant court orders. It also highlights the importance of considering alternative remedies such as rescission applications in default judgment cases. The case underscores the interconnected nature of suspension and disciplinary proceedings in labour law.