Annaclaris Gezi v Justluc Logistics (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/859/14
HELD AT HARARE ON 7TH OCTOBER, 2014
CASE NO. LC/H/252/14
AND 19TH DECEMBER, 2014
JUDGMENT NO. LC/H/859/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/859/14

HELD AT HARARE ON 7TH OCTOBER, 2014      CASE NO. LC/H/252/14

AND 19TH DECEMBER, 2014

In the matter between:-

ANNACLARIS GEZI							Appellant

And

JUSTLUC LOGISTICS (PRIVATE) LIMITED		Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: 	Mrs. M. Muzembe (Legal Practitioner)

For Respondent: 	Mr. S. Musapatika (Legal Practitioner)

MHURI J.:

Appellant was dismissed from Respondent’s employ.  She noted an appeal with the Chief Executive against the findings of the Disciplinary Authority but her appeal was unsuccessful.

Aggrieved, she then noted this appeal with this Court.

Her grounds of appeal as captured in the Notice of Appeal were that:-

The Chief Executive erred by not finding that the Disciplinary Authority erred in law and breached the provisions of the Sixth Schedule to Statutory Instrument 67 of 2012 (Collective Bargaining Agreement : Transport Operating Industry) in particular section A8 of the Code in that the Disciplinary Committee was improperly constituted.

The Chief Executive erred by finding that the Disciplinary Authority did not breach Section 6 of the Code of Conduct by not ensuring a detailed record of proceedings was taken at the hearing.

The Disciplinary Authority erred by failing to accept evidence from the Appellant relating to her suspension by the employer prior to her alleged absence and consequently reached the wrong decision as to the cause of Appellant’s absence from work.

The Chief Executive consequently erred in upholding this decision.

The Chief Executive by finding that the Disciplinary Authority did not err by lifting the Appellant’s suspension before proceeding to dismiss the Appellant four (4) days later on the same charges for which her suspension had been lifted, erred.

At the onset of this appeal hearing, Respondent’s legal practitioner raised a preliminary point challenging the above grounds of appeal.  It was his submission that except for the third ground which has some meritous flair the other three grounds are grounds for review and not appeal.

As regards the third ground, it was submitted that it should suffer the same fate as the other three grounds, as it addresses the failure to accept evidence of events that happened prior to the misconduct.

It was his prayer that the grounds not being of appeal but for review the appeal must be struck off.

Appellant’s contention was that the appeal is against the Chief Executive’s decision and not that of the Disciplinary Committee.  It was submitted that the Court is to decide whether the Chief Executive was correct in upholding that:

The Disciplinary Committee was properly constituted.

A detailed record of proceedings was taken.

It was proper for Disciplinary Committee to uplift Appellant’s suspension before dismissing him.

Prima facie, a look at the grounds of appeal, clearly shows that they are grounds for review.  Ground number three has some substantive element in it but as Respondent put it, it addresses the failure to accept evidence of events that happened prior to the misconduct of Appellant.

It is an established principle that a challenge on procedural issues is done by a way of a review and an attack on the substantive issues is done by way of an appeal.  The composition of the Disciplinary Committee, the recording of proceedings and the lifting of suspension, fall under the decision making process and an attack on the decision making process is done by way of a review and not appeal.

In terms of the Rules of this Court, Statutory Instrument 59 of 2006 there are procedures to be followed when one is approaching this Court.

If a party intends to approach this Court on appeal, they do so under Rule 15, citing proper grounds of appeal.  Where however, a party intends to appeal and seek review at the same time, they do so under Rule 15 sub-rule (3)  The procedure is to file at the same time a notice of review in form LC 4.

Appellant should have either utilized this sub-rule or simply utilized Rule 16 i.e. file an application for review.

By approaching this Court on appeal on purely grounds for review, Appellant adopted a fatally irregular procedure.

To that end, the appeal is improperly before this Court.

In the circumstances the point in limine raised by Respondent is upheld.

It is therefore ordered that the appeal be and is hereby struck off.

Mungeni and Muzvondiwa–Appellant’s Legal Practitioners

Danziger and Partners–Respondent’s Legal Practitioners