Anthony Mugariri v Guardian Security Services

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/23/25
HELD AT HARARE 31ST OCTOBER 2024
CASSE NO. R-LC/H/391/22
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 31ST OCTOBER 2024 AND

In the matter between

JUDGMENT NO.LC/23/25 CASSE NO. R-LC/H/391/22

ANTHONY MUGARIRI	APPELLANT

And

GUARDIAN SECURITY SERVICES	RESPONDENT

BEFORE THE HONOURABLE E. MAKAMURE, JUDGE

FOR THE APPELLANT:D. CHIWARA With him C.MUTEMACHANI

FOR THE RESPONDENT: M. MUTUTU

MAKAMURE J:

The appellant is a former employee of the respondent. This is an appeal against the manner in which the parties parted ways. Following a hearing on 31st October 2024, an order was made in the following terms :

The appeal be and is hereby dismissed.

There is no order as to costs.

The following are the reasons.

The appellant raised three grounds of appeal, namely that:

‘1.The Respondent erred and seriously misdirected itself by finding the Appellant guilty of “ Wilful disobedience of a lawful order” without proving the same.

The Respondent erred at law and misdirected itself by demoting the Appellant on allegations of having committed an offence. The demotion was done without convening a disciplinary hearing , hence , the matter was predetermined.

The Respondent committed an unfair labour practice against the Appellant by paying it(sic) wages which were lower than that prescribed by the contract of employment.’

What came out of the address on behalf of the appellant was that the appellant was retrenched by the respondent. The first two grounds are based on misconduct and yet the appellant was paid a retrenchment package. The appellant can therefore no longer complain about the charges which were levelled against him by the respondent. The said charges and penalty are the basis of the first two grounds of appeal. In view of the fact that the parties separated through retrenchment, the question of misconduct and the charge of willful disobedience and the penalty of demotion are no longer relevant. The appellant was paid a package which he received and has not refunded. The grounds have therefore been overtaken by events. On ground three Mr Chiwara who represented the appellant, lamented the wages which the appellant was being paid . Once again this has been overtaken by events.

Mr Mututu who appeared on behalf of the respondent argued that following an order from the labour officer the appellant who had been demoted , was reinstated to his position of loss control manager. Thereafter parties agreed on a retrenchment package. What appears to have been the problem Mr Mututu submitted, was enforcement of the package. On ground three Mr Mututu submitted that this was an issue which was never deliberated by the lower tribunal. As such the Court could not consider it. I agree. An appellate court cannot consider issues which the lower tribunal did not have a chance to consider. In Kundai Magodora and

Others v Care International SC 24/14 it was held that it was not proper for an appellate court to deal with issues which the lower tribunal had not considered. In the result the third ground of appeal is not properly before the Court. But even if it had been properly before the Court, the fact that a retrenchment package was paid to and received by the appellant means that there was no longer any basis for an appeal to be noted on the basis of allegations of unfair labour practice.

[5}As already indicated , both parties showed that the appellant was retrenched. This means that the questions of the appellant’s guilt or innocence and any unfair practice on the part of the respondent do not arise. There is therefore no merit in the grounds of appeal. The appeal can only fail.

Accordingly, it is ordered that

The appeal be and is hereby dismissed.

There is no order as to costs.

MABUNDU AND NDLOVU LAW CHAMBERS , RESPONDENT’S LEGAL