Apex Wholesalers v Talent Mupasiri

### Preamble
EIN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/297/25
HARARE, 09 MAY, 2025
CASE NO. LC/H/1137/24
APEX WHOLESALERS
APPELLANT
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EIN THE LABOUR COURT OF ZIMBABWE	JUDGEMENT NO. LC/H/297/25 HARARE, 09 MAY, 2025		CASE NO .	LC/H/1137/24

APEX WHOLESALERS	APPELLANT

TALENT MUPASIRI	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant	- C. Mashura, Attorney

For Respondent	- P. Peneti, Attorney

MUSARIRI, J:

On 23 September 2024 at Harare Senior Designated Agent TR Viriri issued a determination which ordered appellant to reinstate respondent’s employment or pay damages in lieu of reinstatement. Appellant then appealed the determination to this Court in terms of Section 92D of the Labour Act Chapter 28:10. Respondent opposed the appeal.

JUDGEMENT NO. LC/H/297/25

Appeal

The grounds of appeal were triplet thus,

“Take notice that the ground on which the Appellant note the appeal is:-

The Honourable Designated Agent misdirected himself on the facts and erred at law in finding that respondent was unfairly dismissed where there was no evidence to support such a finding especially as Respondent unilaterally repudiated her employment contract to evade disciplinary proceedings.

The Appellant seeks the following relief:-

That the instant appeal succeeds.

That the decision by the Designated Agent TR Viriri dated 23 September 2024 be and is hereby set aside and substituted with the following-:

The claim be and is hereby dismissed.

Respondent be and is hereby ordered to pay costs of suit.”

Response

Respondent’s opposing affidavit countered as follows,

“10.  In this case and from the evidence presented before the designated agent, it was apparent that there was no disciplinary hearing that took place as demanded by the law if there is a case of misconduct. The appellant concedes to this fact

Appellant attempts to paint a different picture of a Respondent who simply stopped coming to work but such was never the case. I was duly advised to stop coming to work, to which I complied anticipating updates from my employer. I never got any, save to learn that my contract of employment had been unlawfully terminated.

Even assuming I had unilaterally stopped reporting for duty, the employer was enjoined at law to discipline me on grounds of absenteeism. I was entitled to be notified of such proceedings and opt either to be present or not. No such procedure was followed.

It follows that on the evidence presented, there was no gross misdirection of whatever nature as would warrant interference by this appeal court.

The appeal can only be dismissed with costs.”

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Issue/s

The appeal and response raise the sole issue as to whether the Designated Agent erred in

finding that appellant unfairly dismissed respondent from employment:

Analysis

In his determination the Designated Agent opined

“It is common cause that the parties to this dispute were in an employment relationship. The Applicant is alleging that she was told to stop reporting her duty. The Respondent the other hand, is claiming that the Applicant stopped coming to work after being advised to write a report.

It is my considered view that, the Respondent should have showed this tribunal that he acted in terms of the law by disciplining the employee who he alleged that she stopped reporting to work on her own. The Respondent has the disciplinary procedure avenue to use to put the Applicant’s case to rest.

In doing so, I would go by the Applicant’s version that she was told to stop reporting to work. The actions of the Respondent contravened Section 12B (2) (a) of the Act. If indeed the Applicant had absented herself from work, the Respondent had lawful avenues to follow to dispose of the Applicant’s case. In this case, the Respondent failed to show that he dismissed the Applicant in term of an employment code.

The Respondent terminated the Applicant’s contract of employment unlawfully.”

The Designated Agent’s determination summarised the parties’ cases. The employee stated she was instructed to stop reporting for duty. The employer stated that the employee absconded after she was asked to write a report. In its response dated 25 April 2022 respondent stated that

“5.  From the day Complainant was advised to file a report, she did not report for duty. Respondent took that as admission of the misconduct allegations and unilateral implied resignation by Complainant. It is surprising that Complainant is now alleging unfair dismissal.

8.	It is submitted ….. Respondent now intends to proceed to report her to the police for theft and institute disciplinary proceedings against her.”

The underlined statement confirms that appellant failed to conduct a disciplinary hearing before terminating respondent’s employment. That is the reason cited by the Designated Agent

JUDGEMENT NO .LC/H/297/25

for concluding that appellant unlawfully dismissed respondent. The conclusion is consistent with the provisions of Section 12B of the Labour Act which provides that

“(2)	An employee is unfairly dismissed-

(a) if subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code;”

Appellant should have shown that it terminated Respondent’s employment in terms of the applicable employment code or the national code. It failed to do so, hence the ruling by the Designated Agent.

In the circumstances it is concluded that the appeal ought to be dismissed as devoid of merit.

Wherefore it is ordered that;

The appeal be and is hereby dismissed; and

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Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E