CAFCA Limited v Patrick Chikuyo

IN THE LABOUR COURT OF ZIMBABWE                 JUDGMENT NO. LC/H/185/2013
HELD AT HARARE ON 16 MAY, 2013                  CASE NO. LC/ H/218/2012
In the matter between



CAFCA LIMITED                                          –         Appellant
And

PATRICK CHIKUYO                                        –         Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant        - W. Magaya(Legal Practitioner)
For Respondent       - B. Makururu (Legal Practitioner)


MATANDA-MOYO, L.

        This is an appeal against the determination by the NEC for the

Engineering and Iron and Steel Industry which ordered that the Respondent be

reinstated and that a warning letter be withdrawn and that the deductions

made be reimbursed.



        Both parties conceded that the order for reinstatement was incompetent

as Respondent was never dismissed from work. Such concession was properly

made.



        Appellant filed its grounds of appeal as follows;
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   1) That the NEC failed to appreciate the issues at hand. The issue was not

      criminal responsibility but that of worker’s responsibility towards assets

      of the company.

   2) That the NEC erred in failing to appreciate that the Respondent as the

      Head of Department had the responsibility for safekeeping of company

      tools and had responsibilities to put in place measures to safeguard

      company assets and maintain a proper inventory of such assets. It was

      Respondent’s responsibility to devise and implement measures for the

      access and use of the tools and their safekeeping Appellant prayed that

      the decision of the NEC be set aside and that the decision of Works

      Council be upheld.



      The Respondent filed a notice of response wherein he challenged the

appeal as being improperly before the Labour Court.                 The Respondent

submitted that an appeal from a decision of the NEC Appeal Committee lies to

the General Engineering Committee.          It is the decision of the General

Engineering Committee which is appealable to this court. The Respondent also

challenged the appeal process. He submitted that Appellant is challenging the

gross unreasonableness of the NEC’s decision. Appellant therefore used the

wrong procedure. It should have noted a review application as opposed to an

appeal. The Respondent also submitted that the Appellant should not be heard

as it has not complied with the decision it is appealing against.



      The Appellant responded on the issue of the jurisdiction of this court by

submitting that the NEC Appeals Committee had powers to hear an appeal

from the Works Council. Appellant in its Heads of Argument argued that the


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NEC Appeal Committee is the same as the General Engineering Committee. It

argued that the appeal was properly before this court. On the date of hearing

Appellant argued that the NEC had no jurisdiction to hear an appeal from the

Works Council. Counsel for the Appellant argued therefore that the decision of

the NEC was null and void. Such ground of appeal was raised for the first time

during the appeal. It is trite that parties should disclose to each other the

grounds or argument to be relied upon by such parties. Court proceedings are

not a game of hide and seek. Both parties should come to court aware and

prepared to argue the case.



       It is common cause that the Appellant subjected itself to the jurisdiction

of the NEC. Appellant never challenged NEC’s jurisdiction to hear the appeal.

Appellant has approached this court as an appeal court.                     The issue of the

jurisdiction of the NEC was never placed before the NEC for it to make a

determination. It is unacceptable for such an issue to be placed before an

appeal court. NEC could have dealt with such a ground had it been raised.



Section 7(3) of Appellant’s Code of Conduct provides;


       “subject to the provisions of any law which may provide for an aggrieved party to have
       recourse to appeal to a recognized legal authority, the decision of the Cafca Works Council
       shall be final.”



       It is correct that an appeal from the Works Council lied to this court and

not the NEC. However because the Appellant acquiesced to having the matter

being heard by the NEC Appeals court, he is barred to raise the issue of

jurisdiction at this stage.

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                                                     JUDGMENT NO. LC/H/185/2013




      Once the parties had agreed to have the matter determined by the NEC

Appeals Committee it followed that any appeal arising from the decision of the

NEC Appeals Committee had to be referred to the General Engineering

Committee. The Appellant therefore jumped the gun in filing an appeal directly

to this court. Appellant has also failed to reasonably explain his reasons for

failing to exhaust the domestic remedies. See Olivine Industries (pvt) Limited

vs Gwekwerere SC63/05.



      Accordingly I am satisfied that the appeal is improperly before me and is

hereby dismissed with costs.




Coghlan,Welsh and Guest– Appellant’s Legal Practitioners

Guni and Guni – Respondent’s Legal Practitioners




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