Brian Malgas v Newworld Property Managers

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/681/13
HELD AT HARARE 24TH SEPTEMBER 2013
CASE NO
JUDGMENT NO LC/H/681/13
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/681/13

HELD AT HARARE 24TH SEPTEMBER 2013             CASE NO LC/H/461/13

In the matter between:-

BRIAN MALGAS						Appellant

And

NEWWORLD PROPERTY MANAGERS			Respondent

Before The Honourable L Kudya, Judge

For Appellant		Mr G Madzima (Legal Practitioner)

For Respondent		Mr E Taringa (Human Resources Assistant)

KUDYA, J:

This matter came as an appeal by the employee against his dismissal by the Respondent company on allegations of contravening the industry code of conduct.  On the date of the hearing of the appeal 2 points in limine were raised by the Appellant.  It is those points which are the subject matter of this judgment.

In brief the Appellant the employ of the Respondent as a general hand.  On 20th December 2013 he was brought before a disciplinary committee which found him guilty of breaching the Industry Code of Conduct.  He appealed through the structures until he ended up at the National Employment Council which upheld his dismissal.  Aggrieved by the National Employment Council’s decision he has now appealed to this Court urging the Court to set aside the decision of the National Employment Council and in its place order that he be reinstated to his original position without loss of salary and benefits.

The points in limine raised are two fold that is:

that the Respondent did not file a response to the appeal in terms of Rule 15 (2) hence it is barred for non compliance with the Rules of Court.  This effectively means that there is not opposition to the appeal and it should consequently allowed by the Court as unopposed.

Respondent’s representative has no locus standi in the matter as he is not an employee of the Respondent but a consultant who is not allowed by the Act to represent the Respondent.  In response to the parts the Respondent maintained that:

It did not deem it necessary to file a response in the Labour Court or compliance with the rules because in its views the argument which it was raising was the same argument that it had raised at the lower tribunal.  In its view repeating the same would not serve any meaningful purpose.

The representative had locus standi because he was in the employ of a sister company and in terms of a contract which it had with him over handling of its labour issues it was of the views that same was properly before the labour Court to defend its rights.

The law relating to the filing of a notice of response is quite clear.  In terms of Rule 15 (2) once the Registrar notify the Appellant about the appeal the Respondent is obliged to file his response to the appeal within 14 days of the receipt of the notification of the appeal.  The whole idea behind the response is from the Appellant t be aware of what the Respondent’s argument on the matter’s without the response.  It would also be difficult for the Appellant to prepare his Heads of Argument as h will not be on the ........... of what the Respondent’s defence to the appeal is.  It also need be noted that the appeal in the Labour Court was an appeal against the National Employment Council hence the defence can surely not have been the same as that for one raised at the Local Joint Committee have for the original disciplinary hearing level.  It was therefore misguided for the Respondent to argue that there was no need to file a response without such a response it is clear that there was no opposition to the appeal.  What is of testing to rate is that even after being advised of the irregularity the Respondent was adamant that it was not necessary to file the response yet all is needed to do was that once it realised that it had plaited the rules it shall simply have applied for condonation and regularised the position since it chose not to do so and remained adamant that the compliance with the rules was not necessary it  or not be heard the complain.  It is held against it that it is not before the Court and the appeal has to be treated as an unopposed one on the locus standi, a reading of the contract between the representation and the Respondent shows clearly that the actions by the representative were clearly these of a consultant to the Respondent.

The contract clearly spells out that the Respondent’s duty is to assist the Respondents Human Resources Department.  It is clear that this duty was to be done as a duty or not as an employee of Respondent but as one assisting it who is employed by another company.  It is that double office that the Appellant challenges and maintained that it ...... it the face of the law.  Section  92 of the Act makes it clear that only registered trade unions and legal practitioners shall appear on behalf of another or at least one within the organisation which is before the Court.  It is clear that the representative does of fit with the above de..... hence in...... being improperly before the Court.  In the result it is clear that both parties are with merit and they should be upheld.

IT IS ORDERD THAT

The parties in limine being with merit they be and are hereby upheld.

In default of compliance with the rules of Court by the Respondent the appeal therefore succeeds.

Each party is to bear own costs.

Nyawo, Ruzive, Appellant’s Legal Practitioner