Allied Timbers Zimbabwe (Private) Limited v Francis Nhandara and Hilton Bobi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 19 MAY 2025
JUDGMENT NO. LC/H/192/25
CASE NO. LC/H/151/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 19 MAY 2025

AND

IN THE MATTER BETWEEN:

JUDGMENT NO. LC/H/192/25 CASE NO. LC/H/151/25

ALLIED TIMBERS ZIMBABWE (PRIVATE) LIMITED	APPLICANT AND

FRANCIS NHANDARA	FIRST RESPONDENT

HILTON BOBI	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Ms. M.A. Masona No Appearance for Respondents

MURASI J.,

This is an application for leave to appeal to the Supreme Court in terms of section 92F (2) of the Act and Rule 43 of the Labour Court Rules, 2017. The application is unopposed as the Respondents did not file any responses after being served with the application.

BRIEF FACTS

The two Respondents were employed by the Applicant in different capacities. They both received letters transferring them to different departments and stations from those where they were currently working. The letters also carried the information that the Respondents were being downgraded to the level of General Hands. The Respondents held the positions of machine operator and carpenter respectively. Respondents wrote to the Applicant questioning the propriety of such transfers and the attendant downgrading to general hands and a shift to a different industry. Applicant did not respond to these queries from the Respondents. The Respondents also reported their matter to the NEC for the Undertaking.

Meanwhile, Applicant preferred misconduct charges as the Respondents had not reported to the respective stations they had been transferred to. The charges were preferred despite the fact that Applicant was now aware that Respondents had challenged these transfers. The misconduct proceedings were held in their absence and they were duly convicted and dismissed from employment. Internal appeals did not yield the desired results and the matter ended up with the Designated Agent who allowed their appeal and ordered their reinstatement. Applicant approached this Court on appeal. The appeal was dismissed and Applicant intends to approach the Supreme Court on appeal. Hence the present application.

THE APPLICATION

Applicant’s prospective grounds of appeal are as follows:

The court a quo erred and misdirected itself in failing to consider that the Designated Agent was sitting as an appellate authority and therefore could not make any findings of fact.

The court a quo erred in any event and grossly misdirected in failing to consider that the finding by the Designated Agent that the transfer was a demotion and therefore punitive was not supported by evidence on record.

The court a quo grossly misdirected itself and erred in finding as irrelevant the fact that the Respondents did not attend their respective disciplinary hearings.

The court a quo erred and misdirected itself in failing to consider that the objection that the hearing was unlawful was a defence that ought to have been taken in the hearing and not for the time only in subsequent appeals.

The court a quo grossly misdirected itself and erred in finding that the convening of the hearing was unlawful and/or that Respondents were not obliged to attend.

The Court requested Ms. Masona to motivate the application as it was necessary for the Court to make a value judgment as to whether there were prospects of success on appeal.

In submissions, Ms. Masona stated that the Designated Agent was sitting as an appellate tribunal and was not supposed to make findings of fact as was done in the present circumstances. She further stated that the Court erred in not finding that the Designated Agent had erred in this respect. She submitted that by agreeing with those findings, the Court had erred.

In the second ground of appeal, she submitted that when the Court made its decision, it failed to consider a relevant issue which was that Respondents did not attend the hearings before the Disciplinary Committee and these are the hearings which had given rise to the appeal in question. She argued that such failure to attend those proceedings disentitled the Respondents to challenge any portion of the proceedings. She further argued that the Respondents were aware of the hearings but took a positive step not to attend and in so-doing waived their rights to challenge those proceedings.

In the third ground of appeal, it was submitted that the Court had failed to entertain a relevant fact which was that the issue of the Respondents being transferred to lower grades had been addressed

before the Designated Agent by the Applicant. It was argued that the Court had not taken this issue into account when making the determination and this amounted to a misdirection. Ms. Masona stated for the record that there was no written communication to the Respondents that the error had been rectified but this was communicated when the Designated Agent raised the issue.

Ms. Masona made the observation that the remaining two grounds related to the issue of Respondents not attending the hearings before the Disciplinary Committee. She added that the grounds raised by the Applicant had prospects of success on appeal. She also stated that she relied on the heads of argument which had been filed in support of the application.

ANALYSIS

It is trite that where the intention is to approach the Supreme Court on appeal, the first recourse is to section 92F (2) of the Act. The grounds of appeal must raise questions of law. The second hurdle to be surmounted is whether there are prospects of success on appeal.

In Attorney General v Howman 1988 (2) ZLR 402 (SC), it was held as follows:

“The principles justifying interference by an appellate Court with the exercise of an original discretion are firmly entrenched. If the decision has been exercised on judicial grounds and for sound reason, that is, without caprice or bias or the application of wrong principles, an appellate Court will not interfere and substitute its own decision. It is not enough that it considers, if it had been in the position of the lower court, that it would have taken a different course.”

LORD DIPLOCK, in Council of the Civil Service Unions and Ors v Minister of the Civil Service [1984] 3 All ER 935, had this to say at 951:

“By ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system.”

In assisting courts to handle the many matters that litigants often pursue to be placed before the Supreme Court, that Court has handed down precedents which should always guide the courts in making determinations as to whether the matters are meritorious and should be placed before the Supreme Court. In Zimbabwe Institute of Management v Roderick Nhamo Kadungure SC 115/20, MAKARAU JA (as she then was) had this to say at page 6 of the cyclostyled judgment:

“It is my understanding from the above authorities that broadly speaking, an appeal from the Labour Court to this Court is competent only if it questions what the law has said in

other binding cases on the issue to be determined, presumably in matters where the court has discretion, or questions what the law is on the specific issue raised inn the appeal or attacks the decision a quo on the facts as being irrational. The remit of this court in determining appeals from the court a quo is therefore fairly narrow.

Put differently, the broad position of the law is that an appeal from the court a quo to this Court must call upon this Court to determine and pronounce on the correct and true rule of law on the matter in dispute or, if based on the facts of the matter, to set aside the decision as being irrational. It cannot invite this court to revisit the entire dispute and exercise a fresh discretion in the matter.”

Having laid down the general principles guiding the acceptance of appeals before the Supreme Court, I will proceed to deal with the individual prospective grounds of appeal.

As far as the first ground of appeal is concerned, the Court found that the Designated Agent did not usurp a fact-finding role but arrived at a conclusion based on the pleadings and evidence on record. For example, correspondence submitted as part of the proceedings clearly established that the Respondents’ employment grades had been downgraded and that no communication had been produced by the Applicant to indicate that the position had been rectified. The Designated Agent concluded, within his mandate, that the transfer amounted to a demotion. The additional correspondence submitted by the Respondents during the appeal before the Designated Agent had not been part of the proceedings before the Applicant. The findings made by the Designated Agent cannot be termed ‘irrational’ as described by Lord Diplock supra. The Designated Agent was enjoined to make a finding on those ‘new’ facts. It is my view that there is no merit in this ground of appeal.

The second ground is equally without merit having regard to the response given by Ms. Masona during oral submissions. The ground of appeal avers that the court a quo erred in any event and grossly misdirected in failing to consider that the finding by the Designated Agent that the transfer was a demotion and therefore punitive was not supported by evidence on record. The following is what Ms. Masona stated as the correct position:

“There was no written communication to the Respondents that the error was rectified but this was communicated when the Designated Agent raised the issue.”

The Designated Agent raised the anomaly in the letters addressed to the Respondents which apparently demoted them to General Hands. The Applicant had not responded to the queries raised by the Respondents in this respect. It was acknowledged by the Applicant, during the hearing before the Designated Agent, that this was an error. This is what Ms. Masona confirmed before the Court in oral submissions. Section 36 of the Civil Evidence Act provides:

“(1) An admission as to any fact in issue in civil proceedings, made by or on behalf of a party to those proceedings, shall be admissible in evidence as proof of that fact, whether the admission was made orally or in writing or otherwise.”

The submission by Ms. Masona is clearly to the effect that it was conceded by Applicant, before the Designated Agent that the ‘demotions’ were an error. The ground of appeal therefore, should not detain the Court as it is clearly without merit.

Whilst Ms. Masona was of the view that the last three grounds of appeal raised separate issues, the Court is of the view that they raise one issue, that the Respondents did not attend the hearings and are therefore non-suited to challenge them. Applicant’s argument is based on precedent that where a litigant decides to abstain from any hearings, he/she waives such right to challenge the outcome. What is evident is that Applicant has not followed the matter logically and legally. The decision of the Designated Agent speaks to this issue in clear terms. This is found at page 11 of the Court’s judgment. The Designated Agent stated that in terms of Applicant’s Code of Conduct, all demotions should be done after disciplinary proceedings. This led to the determination that the transfers were unlawful.

This Court referred to precedent dealing with patently unlawful instructions. The Court referred to Sagandira v Makoni Rural District Council SC 70/14, Director of Works & Anor v Nyasulu & Ors 2002 (1) ZLR 658 (S) and specifically underlined the following:

“Secondly, an employer, whatever the circumstances, has no right to invoke a transfer as a punitive measure outside of the disciplinary framework.”

Elsewhere in this judgment I have referred to the admission by Applicant of the downgrading of Respondents’ positions. This was not as a result of any disciplinary measures. It was thus unlawful. It was a nullity. Respondents were not obliged to follow such an instruction. There was no need to attend the hearings. The Matereke Case referred to by this Court in its judgment puts the icing on the cake, so to speak, where it was stated as follows:

“What I glean from these remarks is that although there is no positive requirement for an order to be reasonable, an order that is shown to be unreasonable is unlawful and need not be obeyed. I would add that it would be necessary to show that the order is unreasonable in the given circumstances of the case. To put it differently, an order or instruction is unlawful where it is unreasonable that no reasonable person in the position of the employer would possibly issue it with the expectation that any employee would comply with it.”

This Court’s judgment went to great lengths to show how faulty the order given by the Applicant was. It is my view that that the last three grounds of appeal do not have any prospects of success.

In the circumstances, the application for leave to appeal to the Supreme Court, being devoid of merit, is hereby dismissed with no order as to costs.

MushoriwaMoyo legal practitioners- Applicant’s legal practitioners.