Agnes Garikai v Lancet Clinical Laboritories

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/234/2023
HARARE, 17 JULY 2023
CASE NO LC/H/171/23
28 JULY 2023
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HARARE, 17 JULY 2023	CASE NO LC/H/171/23

28 JULY 2023

AGNES GARIKAI	APPLICANT

LANCET CLINICAL LABORITORIES	RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	-	Mr E. Chigova, Unionist	-

For Respondent	-	Mr T. Chivanga, Attorney

MUSARIRI, J:

Applicant applied to this Court for condonation of a late appeal in terms of Rule 22 of the Labour Court Rules S.I. 150/17. Respondent opposed the application.

Delay

The decision sought to be appealed was made by the Appeals Officer on the 14th September 2020. In terms of Rule 19 applicant ought to have appealed to this Court within 21 (twenty-one) days of that decision. He did not do so. He filed an application for condonation in March 2022 under reference LC/H/235/22. Same was struck off the roll on 5th August 2022. He filed another application for condonation on 22nd September 2022 under reference LC/H/879/22. Same was struck off the roll on 26th January 2023. He then filed the present application on the 9th March 2023. The period of delay has tolled to about 2 1/2 years.

Reasons

Appellant appealed his dismissal from employment to the relevant National Employment Council (NEC). However the NEC’s Designated Agent held on to mater until he recused himself for want of jurisdiction on the 6th October 2021. This accounts for 1 (one) years delay. What happened thereafter? Applicant’s founding affidavit stated.

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LC/H/171/23

“25. Even after the recusal of the Designated Agent from the matter, the trade union which represented me	had their work interrupted by the effects of the Covid 19 
pandemic as at times they were closed.

26. Since I was no longer employed it took me a long time to raise court costs to continue with the matter	by way of this present application.

recused itself from the case, he held the matter in abeyance for almost a year without issuing a determination (from 17 November 2020 to 6 October 2021)”

My take of the explanation is that for the 5(five) months period from October 2021 to March 2022 when he first approached this Court applicant was impeded by a combination of the Covid pandemic lockdown and his impecunity.

Prospects

Applicant’s Draft Notice of Appeal has 2 (two) grounds of appeal thus

“1. The Appeals Officer erred and misdirected himself at law when he found me guilty

2.The Appeals Officer erred and misdirected him my letter of apology as an appeal.”

The grounds are supplem

“32 If my case was investigated it was going to be established that I did not participate

in the alleged job action, neither did I withdraw my services from Respondent. 33.The above was even confirmed by Respondent’s own witness during my disciplinary hearing, as I was always at work doing my duties save for lunch breaks.”

Analysis

It is common	cause that applicant left her station around lunchtime and proceeded to

respondent’s head office where a “Job action” allegedly occurred. Applicant stated she interacted with colleagues there without knowing about the job action. On the other hand respondent	stated that applicant admitted that she joined the job action. However the 
“admission” is capable of more than one meaning including that she innocently interacted

with her colleagues. On	that basis it is considered that she has an arguable case on the merits.

Her explanation	for delay, though inadequate, it is certainly understandable.

The	overriding consideration in these matters	is justice and fair play as enunciated by 
Sandura JA in

Kodzwa v Health Secretary  1999 (1) ZLR 313 (S) at 315E

“It is, therefore, well established that the court has a discretion to grant condonation  when principles of justice and fair play demand it;”

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LC/H/171/23

I am satisfied that in casu justice and fairness demand that condonation be availed.

Wherefore it is ordered that,

The application for condonation be and is hereby granted;

Applicant may file her appeal to this Court within 10 (ten) days of this order; and

Each party shall bear its own costs.

G MUSARIRI J-U-D-G-E