Albert Mukozho v Doves Funeral Assurance

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/55/2014
HARARE, 28 JANUARY 2014
CASE NO.
JUDGMENT NO. LC/H/…….
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/55/2014

HARARE, 28 JANUARY 2014		           	         CASE NO. LC/CON/H/116/13

AND 14 FEBRUARY 2014

In the matter between:-

ALBERT MUKOZHO						Applicant

And

DOVES FUNERAL ASSURANCE					Respondent

Before The Honorable F.C. Maxwell, Judge

For Applicant		Mr. S.T. Mutema (Legal Practitioner)

For Respondent		Mr. B. Vito (Company Secretary)

MAXWELL J:

Applicant was dismissed from work after a disciplinary hearing held on 27 June 2013.  He appeal internally and the appeal was dismissed on 23 July 2013.  In terms of Rule 15 (1) of the Labour Court Rules, 2006, Applicant was required to appeal within twenty one (21) days from the date when he received the decision dismissing the internal appeal.  Applicant only noted an appeal on 22 October 2013 after the stipulated time.  On the same date the Applicant filed the current application for condonation of late noting of appeal.

Applicant seeks to be condoned because he had been erroneously advised by his erstwhile legal practitioners, Messers Chinganga and Company, to appeal to the Commissioner for Insurance and Pension Commission.  He alleges that he lodged the appeal with the said Commissioner in July 2013.  He only received a response dated 1 October 2013 on 14 October 2013 wherein he was advised to approach this Court.

Applicant submits that he believes his prospects of success on appeal are very high because

he was charged for something that he was not responsible over.

the matter in question arose during a period he was on leave.

he was dismissed when the person he alleged to be responsible was not called to give evidence and dispute that the matter was referred to him.

the Company Secretary should have defended the claim.

his appeal was dealt with by the Company Secretary who ought to have dealt with the issue.

Respondent opposes the application on the basis that

No practicing legal practitioner would fail to know that labour cases are dealt with by the Labour Court and not the Insurance and Pensions Commission (IPEC).

By virtue of his position and experience in the insurance industry, the Applicant was well versed with the functions and operations of IPEC that he could not possibly have misunderstood its role.

The so-called appeal to IPEC has not been attached to the Applicant’s founding affidavit.

Applicant lodged a complaint with IPEC regarding allegedly unpaid Commissions as indicated on the heading of the response.

Respondent denies that there are any prospects of success on appeal.  It alleges that by virtue of his position as general manager operations, Applicant was ultimately responsible for ensuring that appropriate steps had been taken to defend summons issued in the Magistrates’ Court.

Whether or not the Court will grant condonation depends on

the extent of the delay

the reasonableness of the explanation proferred for the delay and

the prospects of success on appeal.

See Jakazi and Another v The Anglican Church of the Province of Central Africa and Others SC 10/13.

As submitted for the Respondent the above principles are not the only ones to be taken into account.  In the case of K.M. Auctions (Pvt) Lt v Adenash Samuel and Another SC 15/12 the Supreme Court outlined seven principles and indicated that they were not exhaustive.

In casu the delay is close to two months.  The reason given is that of wrong legal advice.  Applicant did not controvert the submission of the Respondent that he could not have made an application to IPEC by virtue of his position.  It was further submitted that due to his position he knew the functions of IPEC and must have known that IPEC does not deal with labour matters.  In any event even if the delay is due to wrong legal advice that does not assist the applicant.  The Supreme Court has held that a litigant cannot escape the results of his attorney’s lack of diligence.  See Ganda and 13 others v First Mutual Life Assurance Society SC 1/05.

K.M. Auctions (Pvt) Ltd v Adenash Samuel and Another SC 15/12.  Assuming that Applicant’s explanation is to be believed, he states in his founding affidavit that he received the response from IPEC on 14 October 2013.  He then does not explain why it was only on the 22 October 2013 that the application for condonation was filed in this Court.  I find the explanation for the delay to be unacceptable.

Turning to the prospects of success on Appeal, Applicant states that he was charged for something he was charged for something he was not responsible over, something that arose during the period he was on leave.  By saying the matter arose whilst he was on leave Applicant must be referring to the attachment of the Respondent’s property in execution of a default judgment.  Clearly this is not when the matter arose.  The minutes of the Disciplinary hearing held on 20 June 2013 reveal that the matter had arisen earlier on.  On page 5 of the record there is an indication that the matter had been brought to Applicant’s attention in 2012.  He had telephonically acknowledged receipt of a letter that raised concerns from clients.  In 2013 in February another letter had been received and Applicant confirmed receipt of it and said he was working on it.  There is also an indication that towards the end of April 2013 a Mr. Dambudzo had reminded Applicant of the letters and Applicant indicated that he was working on them.  These allegations were not denied or disputed by Applicant.  Therefore the ground of appeal that alleges that Mr. Mucheta should have been called to testify as he had been in charge during Applicant’s absence has no merit.  It would have been relevant if Mr. Mucheta was the one handling the matter since it arose in 2012.

Applicant also alleges in the fifth ground of appeal that the legal office (the Company Secretary) is the one who ought to have defended the claim.  On page 8 of the record Applicant admits that he did not submit the documents he got from Mr. Dambudzo to either the complainant or the Company Secretary.  It is therefore difficult to understand how the Company Secretary would have dealt with an issue that was not referred to him.  I find no merit in this ground of appeal.

Applicant also seeks to challenge the penalty meted out to him.  The Supreme Court has held that the penalty to be meted in a particular case is at the discretion of the employer unless it can be demonstrated that the penalty was decided upon in circumstances where the facts of the particular case dictates otherwise.  See Malimanji v CABS 2007 (2) ZLR 77.  It is therefore unlikely that an appellate court will interfere with the employer’s discretion.

For the above reasons I am not convinced that Applicant has any prospects of success on appeal.  In the final result the application for condonation of late noting of appeal is without merit and is accordingly dismissed.

There shall be no order as to costs.

Gunje and Chasakara Law Firm – Applicant’s Legal Practitioners