Jiah & ors v Public Service commission & anor 1999 (1) ZLR 17 (S)

labour issue Mr LT Biti for the appellants, The appellants were junior doctors and nurses, employed in the public service. they had, in common with most other public servants throughout the country, taken part in a general work stoppage in August 1996, and again in October f that year. All striking doctors and nursers were sent a letter from he Acting Minister of the Public Service, stating that they had been summarily dismissed from their employment. The letter said that they could written representations within a month. The appellants all applied for reinstatement. Force received letter rejecting their applications, the others were told they would be reinstated, but not paid for the time between their dismissal and reinstatement. The appellants sought an order from the High Court reinstating them. They alleged that they had not been given an opportunity to make representations before they were dismissed and that no investigation of their respective positions was ever made. The respondents claimed that there had been newspaper announcements warning of serious consequences if the stringing public servants did not return to work within a very short time. The high court (ADAM J) had dismissed the applications on the grounds that notification had been given to the appellants of the consequences of failing to return to work, that there was an emergency and that therefore ex parte action was lawful. The high court had also held that the exclusion of a prior hearing and representations had been mitigated by the regulations which entitled a dismissed public servant to make subsequent written representations. On appeal:

held, that even if there had been such press announcements, these could not be taken to be certificates of service on the appellants. The crucial point was whether the appellants had been given an opportunity to be heard. In this case, there was never any application of judicious mind before decisions were made.

held further that the tenor of legislation dealing with the public service could not be said to exclude the audi alteram partem principle, either directly or by implication. The respondents hold have given the appellants an opportunity to be heard.

held, further that the hearings and submissions that were held were not sufficiently fair to have the effect of curing the lack of an earlier hearing.held, further that the appellants where not reemployed because having lead the nurses and doctors in negotiations they were seen as having lead the strike.