Boost Africa Trader v Brian Chonyera

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/729/2014
HARARE, 13 & 24 OCTOBER 2014
CASE NO.
JUDGMENT NO. LC/H/729/2014
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IN THE LABOUR COURT OF ZIMBABWE	 	      JUDGMENT NO.LC/H/729/2014

HARARE, 13 & 24 OCTOBER 2014		 	         CASE NO. LC/H/422/14

In the matter between

BOOST AFRICA TRADER 			              APPELLANT

And

BRIAN CHONYERA					   RESPONDENT

Before The Honourable B.T. Chivizhe, Judge

For Appellant	:  Mr. Madzingira (Legal Practitioner)

For Respondent	:  Mr. T.J.S. Chakabva(Legal Practitioner)

CHIVIZHE, J:

The matter was placed before me as an appeal against a determination handed down by the National Employers Council for the Tobacco Industry – Grievance and Disciplinary Committee on the 24 April 2014 which determination set aside the penalty of dismissal and substituted that with a final written warning. The Appellant was further directed to reinstate the Respondent without loss of salary and benefits or in the alternative pay damages in lieu of reinstatement. The parties were directed to, in the event of the latter option, agree on the damages payable failing which they were to refer their matter back to National Employers Council Grievance and Disciplinary Committee for quantification of the damages payable.

On the date of the hearing the Respondent took two points in limine. Firstly, that the Appellant having failed to comply with the determination of the NEC Grievance and Disciplinary Committee directing reinstatement of the Respondent and in the absence of an application for suspension of that determination in terms of Section 92 E (2) of the Labour Act [Cap 28:01], the Appellant was consequently approaching the court with dirty hands. Secondly, the appeal itself was fatally defective on the basis that grounds of appeal numbers one to five appear to challenge the conviction verdict by the NEC Grievance and Disciplinary Committee where clearly the findings by the board were in favour of Appellant. It being trite that a party cannot appeal against an order that is in their favour. It was Respondent’s further submission that ground number six is defective for being vague and embarrassing. It was after all settled at law that a notice of appeal ought to clearly specify what is being against. The last point raised by the Respondent was that the record of proceedings was not a complete record of proceedings in the absence of crucial evidence in the form of original photos that were placed before the NEC Grievance and Disciplinary Committee.

The Appellant counsel in reply made the following submissions; that the Appellant had no dirty hands before the Court; the order by the NEC Grievance and Disciplinary Committee directed both parties to, in the event of failure to reinstate approach the NEC for quantification of damages in lieu of reinstatement. The Respondent as the one affected ought to have taken the initiative of enforcing his rights in terms of the NEC determination by approaching Appellant seeking reinstatement or approaching NEC for quantification of damages in lieu of reinstatement. In the absence of such an application by the Respondent to the NEC the Appellant had proceeded to note the present appeal. The Appellant consequently had no dirty hands before the court. The ANZ case that was cited by Respondent was inapplicable to the present matter.

In regards to the defective appeal it was the Appellant’s position that the grounds of appeal were not defective. Although the grounds of appeal were misleading to some extent the position was clear that in view of the decision by the NEC being in favour of Appellant in regards conviction it would have been illogical for the Appellant to appeal against conviction. On that basis the grounds ought to be read as grounds of appeal against the aspect of penalty alone.

On the issue of the incomplete record the Appellant conceded the need for the missing evidence to be placed before the Labour Court. The Appellant had in filing papers cited the NEC as the 2nd Respondent for that reason. With the court’s leave the Appellant could approach that body with a view to obtaining the evidence.

It is the court’s view that the Respondent raises valid arguments in respect of both points. With regards the first it is clear that the Appellant has indeed approached the Court with dirty hands. It is not sufficient for an Appellant to claim that because the Respondent has not pursued his rights by insisting on reinstatement or in its absence payment of damages then the Appellant could lawfully approach the court on appeal. Section 92 E (2) of the Labour Act [Cap 28:01] is clear that an appeal noted against an arbitral award does not suspend the operation of the award so appealed. It is clear that Appellant in this case on its part has opted not to comply with the arbitral award. It has also not sought to apply to suspend the operation of the arbitral award. The Appellant hands are clearly dirty and should ordinarily not be granted audience until its contempt is purged.  That should really be the end of the matter.  However I proceed to determine the second ground of objection.

On the second ground of objection the Appellant counsel did concede that the grounds of appeal are challenging conviction. He suggested that the Court should infer that the grounds of appeal are against the penalty and not conviction. That is clearly preposterous. Appellant is after all legally represented. It is trite that a notice of appeal ought to clearly specify that which is being appealed against. Appellant counsel before the Court also struggled to explain the import of ground number six which is a very vague and embarrassing ground.  On the basis of improper grounds of appeal the proceedings are consequently a nullity.

With regards the last point raised the court concedes the need for the missing evidence to be placed before the court considering the evidence was indeed placed before the hearing a quo and helped influence the GDC’s findings.

In the light of the foregoing both points in limine ought to be allowed. It is accordingly ordered as follows;

Both points in limine be and are hereby upheld.

The present proceedings being a nullity in the absence of proper grounds of appeal, the appeal is accordingly struck off the roll with no order as to costs.

MATIZANADZO & WARHURST, Appellant’s legal practitioners

KWENDA & ASSOCIATES, Respondent’s legal practitioners