Brighton Munyonho v Unifreight Africa Limited

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/123/23
HELD AT HARARE 8TH FEBRUARY 2023
CASE NO LC/H/327/22
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IN THE LABOUR COURT OF ZIMBABWE            JUDGMENT NO LC/H/123/23

HELD AT HARARE 8TH FEBRUARY 2023                           CASE NO LC/H/327/22

AND 28APRIL 2023

In the matter between

BRIGHTON MUNYONHO						APPLICANT

And

UNIFREIGHT AFRICA LIMITED				RESPONDENT

BEFORE HONOURABLE MAKAMURE J

For the Applicant 	: Mr T Kanengoni (Trade Unionist)

For the Respondent	:Mr Matsikidze (Legal Practitioner)

MAKAMURE J:

Introduction

This is an application for review. It is opposed.

At the commencement of the hearing two preliminary issues were raised on behalf of the respondent. Firstly, Mr Matsikidze who appeared on behalf of the respondent criticized the grounds for review. He argued that the said grounds are combined grounds of appeal on the merits and review. Secondly , Mr Matsikidze argued that the relief sought is incompetent in that the applicant seeks reinstatement instead of having the decision set aside and a rehearing ordered. In the result it was submitted on behalf of the respondent that the application ought to be struck off the roll with costs.

The Preliminary Issues

The following are the seven (7) grounds for review raised on behalf of the applicant and I quote:

‘A. Respondent dismissed applicant in terms of SI 26/17 FOR Transport Operating Industry long after it had been repealed (see copy marked A for the substitution of the code of conduct as contained in SI 26).

B. The respondent relied on SI 26 of 2017 code of conduct which does not provide for a Deadlock and referral to the CEO only comes on Appeal in terms of E of the same code on page 141, therefore the process becomes a nullity.

C. From the date of suspension to the date of dismissal (11/01/22 to 16/03/22) the Respondent is in sharp violation of E8 of the sixth schedule Code of Conduct for the Transport operating industry  of 2020 which reads : if a case is not concluded within 30 days , unless the parties agree otherwise in writing, then such case maybe referred to the National Employment Council the Transport Operating Industry.

D.To demonstrate that Respondent is bent on seeing Applicant out of employment , he ignored the fact that Complainant, in a hearing, failed to prove that the Applicant unlawfully drove Respondent’s truck (see record of findings marked B).

E. In passing even on the sixth schedule , Code of Conduct as contained in SI 26/17 for transport Operating Industry in part D and E, the CEO violated the same by entertaining a case which was improperly before him, it should only come on Appeal and there is no room for Deadlock, therefore it ought to be dismissed and the Application succeeds.

F. The suspension letter of 11/01/22 (marked C), invitation to attend a hearing of 21/01/22 (marked D), Deadlock of 22/02/22 (marked E), and dismissal letter of 16/03/22 and received on 22/03/ (marked F ) all are in terms of SI 26/2017 for Transport Industry Code of Conduct which was repealed on 26 November 2020 (Find Registration Certificate Marked A).’

And the draft of the order  being sought reads:

‘WHEREFORE after reading documents file and hearing council (sic):

IT IS ORDERED THAT;

1.THE APPLICATION BE AND IS HEREBY GRANTED.

2.That Applicant be reinstated back to his position without suffering loss of pay and other benefits from the date of dismissal. If reinstated proves not an option for Respondent , then parties are to agree on an amount representing damages in, lieu of reinstatement, failure from which either party may approach the court for quantification (sic).

3.Respondent should pay costs of suite (sic).’

Respondent’s Submissions

It was argued on behalf of the respondent that the grounds that are before the Court are combined grounds for review and appeal. In this regard reference was made to Rule 20 of the Rules of this Court. The Court was referred to case authorities which include Masungo v Taruwanza HH-76015; Delta Beverages (Pvt) Ltd v ZIMRA SC 9/19 ;Chikura & Anor v Al Sham’s BVI Limited SC 17/2017; Matanhire v BP& Shell Markerting Services (Pvt) Ltd 2004 (2) ZLR 147 (S

In the heads of argument it was also submitted that the grounds of appeal are not precise and concise. The authorities cited in support of this submission included Songono v Minister of Law and Order 1996 (4) SA 384 (E) at pages 385-386.

Applicant’s Submissions

In response Mr Kanengoni who appeared on behalf of the applicant argued that the grounds are in compliance with the Rules.This was so it was averred , because the correct form, Form L.C.5 was used .Mr Kanengoni further argued that in view of the provisions of Rule 47 as read with R32 of Rules of this Court , ‘there was room for adjustment.’ Further and in support of the stance that the grounds are compliance with the Rules , it was stated that if they had left out some of the things included in the grounds for review they ran the risk of losing. In Mr Kanengoni’s own words ‘…if you do not mention, you lose it all.’ It also appears as if there was fear that the employer had already  predetermined certain position. Under the circumstances ,it was submitted that the grounds for review are proper and the prayer is competent.

Mr Kanengoni had a preliminary point to raise. This was with respect  to representation of the respondent.Mr Kanegoni argued that one Moreblessing Mukamba who swore to the opposing affidavit on behalf of the respondent has since left the respondent’s employ. For that reason it was submitted that the application ought to be treated as unopposed.

In response to this Mr Matsikidze pointed out that one Mutambarika  deposed to the affidavit in support of the respondent’s  Notice of opposition. In view of Mutambarika’s affidavit the absence of Mukamba from the respondent company would not take the applicant’s case any further.

Analysis

A reading of the grounds of appeal reveals  that they are not clear. Mr Kanengoni did not deny this. Instead he seemed to be of the view that the applicant should just put everything possible in the grounds as long as it was relevant to the case, otherwise ,they would lose the case. This should not be the basis for approaching the court on review. Where a party is aggrieved by  how a tribunal has conducted proceedings, they should be guided by provisions of both the Labour Act , Chapter 28:01 ( the Act ) and the rules. Litigants are free to lodge either a review or an appeal or both  if they hold the view that this is the appropriate course of action to take. In the present case the applicant decided that an application for review was what he wanted to pursue. This is provided for in S92EE of the Act as follows:

‘92EE Grounds of review by Labour Court

(1) Subject to this Act and any other law, the grounds on which any proceedings or decision

conducted or made in connection with is Act may be brought on review before the Labour Court shall

be—

(a) absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

(b) interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating

authority concerned:

(c) gross irregularity in the proceedings or the decision of the arbitrator or adjudicating

authority concerned.

(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.’

The need for clear grounds for review cannot be overemphasized. In the present matter it appears as if fear of the unknown played a major role in how the grounds for review were framed. The pain of losing employment is real and cannot be underestimated. This is why the Labour Court is there to deal with employment related disputes equitably. However it has to operate within the confines of both the Act and the Labour Court Rules.See Zimbabwe Platinum Mines (Private ) Limited v Marko Phuti SC21/16. It would be difficult to resolve disputes if there were no rules to follow. It would be even worse where a party was of the view that every conceivable issue must be mentioned for the fear of losing one’s case.

In Doctor Nobert Kunonga v The Church of the Province of Central Africa SC25 /17, the Supreme Court stated that:

‘[24]	In Songono v Minister of Law and Order 1996(4) SA 384 (Eastern Cape Division) the learned judge (Leach J) commenting on the requirement that grounds of appeal must be clearly and succinctly set out in clear and ambiguous terms to enable the court and the respondent to be fully and properly informed of the case which the appellant seeks to make out and which the respondent is to meet, stated at p 385 G-H that: -

“… it has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of the law made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet …”

The grounds for review in the present case are narrations which require the Court and the other party to read over and over again in order to ascertain what is for review. This is worsened by the fact that the grounds refer to certain annexures and other information in order for them (the grounds) to be understood. Indeed, the applicant’s representative admitted that they included everything because they did not trust or  know what would happen if something was omitted. That, in my view shows crippling fear of the unknown.

It is  unfortunate if not catastrophic that  the applicant is in that state of mind where everything is said regardless of what the statutory provisions say. As noted earlier if the position of this Court were to accept anything in order to achieve equity, a great deal of injustice would be done to litigants. This would then defeat  the purpose of the Act. I also find it rather regrettable that in an effort to provide affordable legal advice, trade unionists tend to get overzealous and do the complete opposite. I think it is time that the relevant Ministry seriously considered training trade unionists in basic requirements to be met before this Court particularly adherence to the Rules. As it is now,  the grounds for review do not meet the basic requirements as stipulated in both legislation and case authorities. The result is that no matter how good the applicant’s case may be on the merits, when the grounds are not clear and concise, the case cannot proceed until that is put right. This means more time is taken on the case and thus delay finality to litigation . This is prejudicial to the parties.

I have found that the grounds are not clear and concise. This means that there is merit in the first preliminary issue raised. The preliminary issue is upheld.

The second preliminary issue asserts that the appropriate relief in a successful application for review is setting aside  the lower tribunal’s decision and ordering a rehearing.This is  correct .  Once an application for review has succeeded it means that the procedure adopted by  the employer was somehow flawed. Hence the setting aside of the proceedings. However, what this also means is that the position of the parties before those proceedings were concluded is restored. This however, does not take away the parties’ right to have fresh proceedings properly conducted. I am fortified in this regard by what the Supreme Court stated in the case of ZUPCO v Beaular Mashinge SC20/21. The following is what the Supreme Court stated :

‘18.	The position that I come up with above was obliquely endorsed by McNally JA in Air Zimbabwe Corporation v Mlambo 1997 (1) ZLR 220 (S) where, at page 223 H he accepted as correct the submission by counsel for the respondent to the effect that:

“…as soon as there is a finding that the disciplinary findings were a nullity, it must follow that the employee is reinstated.  After all, the basis for his dismissal has been set aside. So he has not been properly dismissed.” (…)

19.	The conclusion that I reach above is similar to the conclusion reached by this Court in the case of Minerals Marketing Corporation v Mazimavi 1995 (2) ZLR 353 (S) where the court upheld the decision of the tribunal a quo to reinstate the employee after finding that a gross irregularity had occurred during the disciplinary proceedings.

20.	The clear position of the law appears to me to be that upon the setting aside of employment disciplinary proceedings as a nullity, both the procedural and the substantive rights of the parties are restored to the position immediately before the nullified process. In other words, where a dismissal is set aside as being a nullity, the employee is reinstated as such notwithstanding the further disciplinary proceedings that the court may order by way of remittal or otherwise.’

Conclusion

In view of the authority of the ZUPCO v Beular Mashinge case ( above), I find that there is no merit in the second preliminary point raised on behalf of the respondent. However ,since I have upheld the first preliminary point ,the finding on the second preliminary point will not affect the  order of the Court.

Having found that the grounds for review are defective, it means that this matter is not properly before the Court.

Accordingly it is ordered that  :

The application for review be and is hereby struck off the roll.

Matsikidze Attorneys -At -Law, Respondent’s Legal Practitioners.